Essay concerning new philosophical questions collected from the law

• Main Author: Alberto Artosi
• Format: Article
• Language: Spanish
• Published: Faculdade de Direito de Vitória 2015-06-01
• Series: Revista de Direitos e Garantias Fundamentais
• Subjects: Direito. Filosofia. Realidade. Aparência.
• Online Access: http://sisbib.fdv.br/index.php/direitosegarantias/article/view/749

This article is intended as an homage to Leibniz and his Specimen quaestionum philosophicarum ex iure collectarum (“Specimen of Philosophical Questions Collected from the Law”). In this early writing Leibniz, then at the beginning of his career both as a philosopher and as a jurist, argues for his (at that time and probably also now) bold thesis that the law lends itself spontaneously to philosophy on account of both its intrinsic philosophical content and the fact that “many places in the law would be an inextricable labyrinth without the guidance of philosophy”. In the wake of Leibniz’s claim, the article focuses on three legal norms: art. 1189 of the Italian Civil Code (payment to the seeming creditor); art. 47 of the Italian Penal Code (factual mistake), and art. 533 of the Italian Code of Criminal Procedure (reasonable doubt). Each article is subjected to philosophical analysis. The first article leads directly to the problem of the appearance/reality dichotomy. The last two articles rise the issue of our representation of reality and of the difference between possible doubt and reasonable doubt, respectively. In all three cases, some possible jurisprudential implications of the respective philosophical readings are suggested.