CONSTITUTIONALISM, MODERNITY AND GENDER: THE ANTI-DEMOCRATIC NATURE OF SEXISM AT THE ROOTS OF THE RULE OF LAW

Abstract

The article critically examines the origins of modern constitutionalism, highlighting how the liberal project of modernity was built upon a patriarchal rationality that excluded women from citizenship and lawmaking. Drawing on Carole Pateman’s theory of the “sexual contract,” along with contributions from Fioravanti, Ferrajoli, Stradella, D’Amico, and Christine Peter da Silva, it argues that the universal subject of modern constitutions is male and that legal neutrality has legitimized gender hierarchies. Using critical legal theory and feminist constitutionalism, the paper contends that liberal constitutionalism, by reducing equality to its formal dimension, has produced a structural democratic deficit. From the post-war to postmodern constitutionalism, it calls for a hermeneutical reconstruction that recognizes the female body as a constitutional subject and substantive equality as a democratic requirement. The study concludes that sexism is a constitutive element of modern legal rationality and that overcoming it requires a feminist, plural, and transformative epistemology.