Abstract

CRIADO DE DIEGO, Marcos. The Equality in the Constitutionalism of the Difference. Rev. Derecho Estado [online]. 2011, n.26, pp.7-49. ISSN 0122-9893.

The article deals with the contradictions between the equal-based theoretical and dogmatic constructions of liberal constitutionalism and fragmented contemporary subject in cultural and social identity groups. Specifically, it wonders about the abilities of a "difference constitutionalism" to be used as a meaningful category to analyze and understand the transformations that recognition of difference arises on liberal constitutionalism, equal treatment requirements and judicial review of affirmative action. After Introduction, Section ii criticizes liberal emphasis on equal treatment as the core of equality rules, claiming for an understanding of equality able to involve relevant differences assessment on judicial and legal approach to equality. Section iii compares liberal and communitarian views of equality as grounds of different theoretical approaches to the constitution phenomena. Section iv analyses judicial performance and approach to equality and affirmative action in Italy, Spain and the United States.

Keywords : Constitutionalism of the difference; pluralism; equality.

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