Cotta on the ubiquity of the legal

• Autore: Wojciech Zelaniec
• Pagine: 765-777

W. ełaniec

Cotta on the ubiquity of the legal

WoJciecH ŻeŁAniec

COTTA ON THE UBIQUITY OF THE LEGAL

summary: 1. Introduction. – 2.1. Cotta’s perspective on the relational situation and

basic needs of human beings. – 2.2. The synthetic-relational. – 2.3. Freedom and

obligation. – 2.4. Form of relational coexistence. – 2.5. Rules in general; legal

rules as inclusive and integrative. – 3. The ‘intensional’ universality of human

relations.

1. Legal philosophy is, like all philosophy, a study of foundations—in

the case of legal philosophy the foundation are those of law. It inquiries into

what law is (quid ius), rather than into what is legal (quid iuris), to put it with

Kant.1 This need not be taken too literally, perhaps; after all, contemporary

philosophy is cautious with so-called essential questions (essentiale Fragen)

that is those asking what a thing ‘in its essence’ is (partly because under

the influence of Empiricism and Positivism contemporary philosophy has

lost its traditional confidence that being something ‘essentially’ and being

something tout court are different2). Yet even if non-essentialist, legal phi-

losophy of all flavours will be interested in that which is in a sense perennial,

everlasting, necessary in legal phenomena. To put it with Professor Incampo,

it will examine these phenomena from the point of view of the universal.3

Universal, too, is the presence of law phenomena in everyday life. Sergio

Cotta has put it this way:

you buy your daily meal without thinking that you are making a ‘deed of sale.’ You

keep your wallet in the pocket without realising that there is a norm to the effect that

1 I. K, Metaphysik der Sitten, 1797, Akademie edition vol. VI, p. I, 229f.

2 Quine’s Word and Object is a manifesto of such anti-essentialist philosophy: W.v.O. Q,

Word and object, Cambridge, Mass., 1960. Part of the problem is that there are various ‘essences,’

the Aristotelian ‘τὸ τὶ ᾖν εἶναι,’ the scholastic ‘essentia,’ the Lockean real as well as nominal es-

sences, the Husserlian ‘Wesen’ and others. As regards the Husserlian school, a good point to start is

R.W. I, Essentiale Fragen. Ein Beitrag zu dem Wesensproblem, in Jahrbuch für Philoso-

phie und phänomenologische Forschung, 1925, VII, 126-304.

3 A. I, Sul dovere giuridico, Bari, 2003, 26.