Cultural rights and democratic legitimacy: Conceptual approaches and uses in Latin America

The legitimization of policies and legal frameworks oriented for protecting cultural rights is usually based on the assumption that members of cultural minorities share a common identity. Therefore, the protection of minority cultures would offer individuals who belong to ethnic minorities an adequate context for unfolding their personality and political preferences.

New theoretical approaches and also empirical studies have questioned these assumptions. Theoretically, poststructuralist and postcolonial studies have demonstrated that cultural identity does not represent a pre-political entity. On the contrary: cultural identifications are constructed dynamically, through practical negotiations of interests and differences (H. Bhabha, S. Hall, J. N. Pieterse).

On the empirical level, sociologists and anthropologists have been describing concrete negotiations of differences showing how actors mobilize (or do not mobilize) certain cultural repertoires according to their values, political preferences, and economic strategies (P. Gilroy, J. Hoffman French).

The paper is divided in three parts. The first section is dedicated to a theoretical discussion confronting fixed and dynamic concepts of identity and culture. The second part collects some findings extracted from studies about the implementation of new cultural rights for indigenous and Afro-descendant populations in Latin America in order to visualize empirical interconnections between law, politics, economic interests, and cultural identifications. In the concluding section, the paper presents a defence of rights for cultural minorities that is based not on an essentialist concept of identity but on the democratic imperative of compensating abusive power and social asymmetries