Empiria e senso comune nel diritto: una recensione hegeliana a Gerstäcker

The essay investigates the treatment of the common sense (gemeiner Menschenverstand) in Hegel’s philosophical writings of onset, with particular attention to juridical theories. Using as a background Hegel’s criticism of empirical and formal approaches in his paper on the Scientific Ways of Treating Natural Law (1802-3), it shows how according to Hegel the common sense and its pretended resort to empiricism, far from being immediate and free from theoretical presuppositions, are not only theory-laden and therefore a field for a bad unintentional metaphysics, but also the common root of the above mentioned empirical and formal approaches. These two latter, Hegel stresses, are cut from the same cloth, both the products of the illuminist ‘reflection’ (Reflexion) and ‘disjointing’ (Entzweiung), based on the alleged insuperable oppositions in human consciousness, like objective-subjective: the empiricism unknowingly in need of concepts to order the sensible data; the formalism unknowingly in need of sensible contents to give a meaning to its otherwise empty universal concepts. The review to Gerstäckers’ Versuch einer gemeinfaßlichen Deduktion des Rechtsbegriffs is considered in present work as a document of Hegel’s processing of this criticism.