Paolo Heritier

In this article we introduce the reader to the reasons that led to this collection: an interdisciplinary exploration aimed at renewing interest in Luigi Einaudi’s search for «good government», broadly understood as «good society». Prompted by the Einaudian quest, the essays – exploring philosophy of law, economics, politics and epistemology – develop the issue of good government in several forms, including the relationship between public and private, public governance, the question of freedom and the complexity of the human in contemporary societies. The common thread of these essays is that problematic but indissoluble knot that tells us something deeply human: our being torn between homing and roaming, institutional and individual, law and freedom, real and ideal.

The paper analyzes the sacred foundations of Western institutional order, moving from an epistemological, historical and legal–aesthetic perspective. Firstly, it identifies an epistemological theory of complexity which, pursuing Hayek’s theory of complexity, Robilant’s notion of informative–normative systems, Popper’s theory of the Worlds, and Dupuy’s theory of endogenous fixed point, will conclusively lead to presenting the hypothesis of World 0 as the World of the foundation of legal thinking, the home of the sacred and the aesthetic. Secondly, it identifies the axiological character of the legal aesthetic as a discipline, a topic that will be taken up in relation to the work of the French historian of canonical law and psychoanalyst Legendre, starting from the analysis of a legal/historiographical context (Corpus Iuris Civilis, Corpus Iuris Canonici, Hobbesian Leviathan, Kelsenian Grundnorm). Thirdly, following Ellul’s thought on secularization, the idea that we now live in a secularized, lay society, lacking in the sacred is revealed as a sort of illusion, the creation of a myth of modernity, only apparently rational. Finally the paper proposes as the task of legal theory the identification of the system of “nomograms” in which the normative message is organized, according to a nonreductionistic approach that forces legal theory to recognize the plurality of the iconic forms of the normative message. The “nomograms” respond to the need of extending the field of legal science to phenomena that the positivist theory of law does not consider important, but which the process of evolution of contemporary society imposes

Is it the task of legal semiotics or the legal philosophers to define legal semiotics? For the philosopher of law, the question recalls the distinction between philosophers’ philosophy of law and legal scholars’ philosophy of law. The thesis that the paper argues is that a semiotic legal perspective can also be sought from the analysis of anthropological knowledge on the origin of the social bond and society, implying a social and institutional theory of the mind. In the first paragraph, the search for a different kind of rationality emerges from a semiotician, Jürgen Trabant, who analyses semiotically the thought of a rhetorician and philosopher of law, Giambattista Vico. In the second paragraph, the anthropological notion of social bond emerges from the debate on the relationship between the idea of the gift and that of exchange. In the third paragraph, the analysis of the legal notion of thirdness recognizes the central role of myth and fiction in the configuration of the civil world and sign, returning to Vico’s critical view of the philosophy of language as an institution of society.

Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons with disabilities. The contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD.

The article reconstructs the is/ought debate in legal theory through a phenomenological reading of the concept of normality. An analysis of Siniscalchi, Fuller and Manderson looks at the issue from the perspective of law and literature, and then applies Giambattista Vico’s rhetorical methodology within the contemporary debate. The question: “is Hume’s law really visible within Hume’s thought?” also paradoxically poses the figure of phantoms and fictions at the heart of the current theoretical debate on law. A history of the phantom placed at the centre of the history of Western institutions still remains to be written, but a comparison of very diverse and incongrous approaches such as the extended order of Hayek, the dogmatic anthropology of Legendre, the eunomics of Fuller and the new science of Vico shows how the mystery of consciousness and the mystery of institutions are inextricably entwined. It is impossible at the moment to draw a coherent doctrine from these conflicting perspectives, but their convocation is sufficient to demonstrate how the theory of law is always suspended between the unknown and the human attempt to inhabit it, moving us toward an affective turn that has yet to be fully conceived in the theory of law, following the iconic turn. The anthropological primacy of fictio and the aesthetic-legal dimension in the constitution of language is not that of a logic and separation from the body and meaning, but the exact inverse, even in the unavoidable constant tension between the two poles: logic is born through the gesture of the body that precedes it, as myth precedes the foundation of the State; the origin of the concept is affective, as Hume, and perhaps Vico himself, would have passionately affirmed.

The paper aims to analyze the problems that religious truth, particularly Christian truth understood as an event, poses to the category of de re truth. How does the conception of truth ‘as event’ stand phenomenologically in relation to the contemporary analytical debate on truth? Statements in the catechism such as “true God and true man” referring to Jesus, or the same words attributed to Jesus in John’s gospel (14:6) such as “I am the way, the truth or the life” how can they be understood in relation to the category of recently called ‘dual character concepts’? Is there a difference between the notion of ‘true warrior’ and that of ‘true God’? When is a person appropriately categorized as a true man? When is a person appropriately categorized as a true God? What is the relationship between faith and truth?