Identity Claims and the Legal Order: Secular or Religious?

Abstract

The problem addressed in this article is the challenge that identity claims stemming from identity politics, commonly recognized as left liberalism, pose to the secularity of the modern legal order. The paper: (1) postulates human dignity as the highest value and assesses the potential of philosophy and law to find a balance among the conflicting demands posed by this value; (2) identifies constitutional principles and/or jus cogens as the basis for the identification and appraisal of identity claims; (3) describes major identity claims embodied in the Istanbul Convention and appraises them on the basis of the principles; (4) ascribes identity politics and its claims to a worldview with traits of a religion, termed culturalism, as their condition. The conclusion proposes alternative decisions (de lege ferenda) more in accord with the principles, most notably with the freedom of thought, conscience and religion.