Storicità del diritto. Sul problema dei "due diritti" in Adolf Reinach

CICCARELLI, PIERPAOLO

2017-01-01

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Abstract

This article is based on a phenomenological understanding of the conventionality of law. It argues that a phenomenological understanding can account for the historicity of law better than the subjectivistic understanding presupposed by the legal positivism, e.g., of Hans Kelsen. The fact that the law is "by convention" means not only that it is a “positum”, but also that it is an insuperable horizon of the “ponere”. Thus results the problem of the interplay between necessity and contingency that characterizes the law as a phenomenon. The issue is faced in an exemplary way by Adolf Reinach's book "The A Priori Foundations of Civil Law," in which the author poses the question of the possibility of "derogating" the laws of essence that apply a priori to legal entities.