Uguaglianza e differenza di genere nella riforma del diritto di famiglia: una lettura luhmanniana

Abstract

Even if equality before the law is a basic human right in modern constitutions there is much more to that. In fact, we could say that legal systems have arisen around the idea of equality. The full meaning of equality seems to express a common way to unsderstand human relationships, particularly in the case of gender equality, which is specifically mentioned by modern democratic constitutions and which relates to the principle of equality before the law. The current paper approaches such specific way of equality whose features are the paradox of equal treatment of the unequal, that is to say, distinction without discrimination. To that purpose we refer to the legal and political approach to the subject as it is seen in the reform of Family Law. This is not a matter of a given country’s legal system, but a particular version of a general matter, which is the impossibility to see as indistinguible which is actually different. Political attemps to reform Family Law to implement the constitutional law of equality does not solve the issue. A matter as such appears once again at the impossibility of the law to work without establishing differences. At the same time, new problems related to new ways to organise family life appear.