Culturalism and Fundamental Rights
| Autor | Raoni Bielschowsky |
| Páginas | 1257-1268 |
Special Workshop: Cultural Turn and Philosophy of Law and State • 1257
Culturalism and Fundamental Rights
Raoni Bielschowsky
Abstract: This paper has as objective consider about the theoretical basis of fun-
damentalityof fundamentalrights Thereforerst isobserved somecommon
answers about the theoretical buildings to insert an right at de dogmatic cat-
egory of fundamental right. After that, the text defends an axiological-cultural
basis, considering the demand to an material and substantive fundamentality.
Keywords: Fundamentality of fundamental rights, substantive fundamental-
ity, anthropological cultural premise.
1. Introduction
Since the end of the II World War the “Constitutional World” has
searched for the concepts, arrangements and, principally, for the essence
of the constitutional frame that comprehends, represents and answers
all the issues and fears that the Terror had made emerge and the Man-
kind would like to purge.
The major constitutional topics since the 2nd post-War can be basi-
cally resumed in two inter-related issues. One regarding the necessity to
recognize an unconditional and unavoidable respect to everyone’s Hu-
manDignitybyeveryoneandanotherconcerningthemechanismsand
structures to control and limit the Power. Indeed, these two issues can
bewellrepresented bythemaersaboutFundamentalRightsandDe-
mocracy; in turn, these two aspects are what the Constitutional Theory
calls fundamental principles or essential content or, even, material Con-
stitution. For no other reason, LarmsthattheConsti-
tution is the fundamental dispositive to control the Power process.
According to K recognizethe dierencebetweenmate-
rial constitution and formal constitution is an important topic to overcome
the juspositivism standpoint – his formalism and his supposed scienti-
cism – by a desirable material constitutional theory. And just with this
overcome we can have a more comprehensive and trustworthy Consti-
tutional Theory adequate to the ethical and axiological nowadays State’s
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