The essence of law in the work of Francesco Gentile

Abstract

F. Gentile reflects on the three chambers of the right: legality, justice, justifications. These are the necessary dialectical moments for the right. One has to consider that right is conceived in abstraction from the truth in our times, and that the current crisis of juridical experience is, in its most profound essence, a crisis of the truthfullness of the right. The purely instrumental or legal character of the right (the first chamber) is the revelatory element of right which has lost its nature of being ars boni et aequi and has been gradually reduced to an instrument for ends that are external to its own content, if not downright to a mere instrument of power. Its positive form, though necessary to secure juridical certainty, has become the only title of its validity, the unique criterion of juridicity. In order to escape juridical nichilism, one should make the move towards the dialectical nature (second chamber) that may unite and distinguish that which is right (the realistic domain of right), that is toward the search for the just or adequate measure. In the end, one should justify natural right (its essence) as the substantive foundation of right, not as a duplicate level of positive right — with which it remains connected. Besides being established, the laws are examined in order to test their justice, which renders the classical idea of justice the condition of the intelligibility of human interaction (third chamber).