Subjects of law and performative bodies. Unanswered questions about an institutional design capable of protecting minorities

Abstract

In the context of the discussion about the institutional designs capable of responding to the minority complex claims, this paper intends to examine some of the difficulties that concern deconstructivist proposals, especially the theoretical line that makes a critique of the descriptivist view of the subject of law from the perspective of the concept of Austinian performativity. Thus, we analyze the theoretical construction of Judith Butler, in order to remark some perplexities attained by her views and conclude, as a hypothesis, that an institutional design which seeks the defense of minorities and transcends the merely declamatory, can´t and mustn´t ignore modern logic that presuposes, even with a controversial metaphysics burden, the existence of a subject.