Custodire il vuoto. Studio sul fondamento del sistema giuridico

Abstract

In this text I address the issue of the transcendental foundation of right through an in-depth discussion of some leading thinkers such as Kelsen, Schmitt, Benjamin, and Derrida. Firstly, I put into light the differences between Kelsen's and Schmitt's views: whereas the former believes that the right's foundation is a rule which serves as a transcendental condition for a science of right purified from all alien elements, the latter claims that the basis of right is to be found in the concrete unity of social order which constitues the existential horizon of the sovereign decision about the state of exception. Secondly, I discuss Derrida's contribution to the problem of justice, namely his argument on the substantial impurity of all juridical systems: in synthesis, according to Derrida justice is other than right and, at the same time, is the other in right. In the last part of this paper I demonstrate how, following Benjamin, the juridical order must use the same violence from which it aims at protecting community.