Revista Crítica de Historia de las Relaciones Laborales y de la Política Social

ISSN versión electrónica: 2173-0822

La certeza del Derecho. Flavio López de Oñate [Texto en inglés]O

María del Carmen Amaya Galván
Elena Sáez Arjona

Abstract: This is the republication of the translation into Spanish of the classical work by the legal philosopher Flavio López de Oñate, who criticizes government agencies behind which there are legal scholars and intellectuals who believe the State should legislate over a larger and larger number of subjects and realities. López de Oñate’s book is too abstract, and the translation into Spanish of what Piero Calamandrei and López de Oñate himself wrote in Italian does not seem to have been done appropriately. We do not know whether José Luis Monereo revised the translation but there are certain passages which make the book impossible to understand. Interesting reflections upon State Law and Community Law can be found, but they are completely different from similar concepts in Vladimir Ilyich Lenin’s The State and Revolution.

Key words: Flavio López de Oñate, Giuseppe Capograssi, Piero Calamandrei, Widar Cesarini Sforza, Eduardo J. Couture, Certainty of Law, Legislator, Social Law, Social Justice.

Comares publishing house in Granada, again, gives us the opportunity to read a book to illuminate our reflection upon the certainty of Law, in a collection entitled “Art of Law”, directed with outstanding intellectual rigor by José Luis Monereo, Labour Law and Social Security professor in the University of Granada. The author of the preface of the Spanish edition is Eduardo J. Couture (1904-1956)1, a renowned litigator from Uruguay with many connections in Italy and, in particular, with Piero Calamandrei (1889-1956)2. In the Italian version of the book there was a magnificent and in-depth introduction by the brilliant Law philosopher and professor in Padua, Naples and Rome, Giuseppe Capograssi (1889-1956)3. The book’s main idea is summarized by Capograssi as «the certainty of law is not abstract, general or schematic but rather particular, specific and correlative to the unique experiences and legal systems that make up the world of Law» (p. XXIV) 4.
Both Couture and Capograssi emphasize the reviewed book’s usual merit in various specialized fields of legal science, such as the general doctrine of Law, Procedural Law or Canon Law.
The reader may notice that López de Oñate has organized the book in two parallel parts: the text itself, and a substantial body of literature both complementing and forming part of the text.
Moreover, this remarkable and systematic essay articulates a research line following this structure: firstly, the speculative conception of Law as a certainty, and, secondly, the establishing of current Law crisis as a crisis of certainty. Its contents reveal a concept of certainty as a specific ethics of Law. Thus, according to Flavio López de Oñate, justice becomes a certainty as a consequence of action and as a principle at the origins of Law. This certainty prevails the objectification of justice that stands as a constitutive and productive principle of legal experience.
Similarly, the contemporary world crisis, which López de Oñate complains about, is essentially a spiritual crisis, which accommodates despair, anguish, loneliness, and the feeling of individual responsibility. López de Oñate’s message is clear, in the sense that the problem of philosophy is that of certainty, as it had previously been that of truth, and that of reality in the Greek and Latin classical world. This amounts to saying that the problem of certainty is that of the individual. A logical consequence of this would be the crisis in Law itself, which, for López de Oñate, was understood and analyzed in all its separate elements by the great Law scholar Piero Calamandrei, who has just been mentioned above. Once the above has been exposed, Flavio López de Oñate unveils, in the central chapters of his book, the basis of the certainty of Law. He manages to assemble an accurate argument and soundly defines his concept on the basis of the certainty of action and the possibility of action, and, then, reinforces it with legal and philosophical concepts provided to this purpose, among others, by Cicero, for whom «we all comply with the laws so that we can be free.» In order to understand the Law, as opposed to nowadays’ legal hypertrophy, and as the individual’s expression and will, which in turn provides the action with a future scope which will enable confidence in the protection of the individual’s interests. Still, his opposition to the multiplicity and mutability of Law, to its gaps and lack of clarity, etc., which pose a profound threat to the certainty of Law and Justice guaranteeing it, becomes evident.
«The State as “a law-making device” –argues López de Oñate–, cannot be satisfied with changing the laws, that is, with replacing old laws by new ones; it constantly adds new laws to previous ones» (p. 39 ). And they all coexist at the same time. And López de Oñate adds: «The legislator wants to foresee everything and legislate on everything, incorrectly, believing that the endless multiplicity of laws is an adequate remedy» (p. 39). Logically, Flavio López de Oñate differentiates between State Law and Community Law, and, following Höhn’s doctrine, he considers the idea of the State, legally speaking, as a legal and institutional reality which is the opposite of popular community (p. 57). The reason is quite simple, since popular community is something specific and particular, while the State is completely abstract, even if it may materialize in a number of elements such as the territory, the population, the Constitution, national identities, and so on. It is in this sense that López de Oñate states that «society cannot be considered as something heterogeneous and different from the individuals and, therefore, its guardianship becomes effective through the individuals» (p. 69). Ultimately, society only exists within the human being considered as an individual (p. 71), which matches the concept of legal entity.
Against the certainty of Law, it is relevant to note Flavio López de Oñate’s inner turmoil regarding those legal formulations which, in turn, certain doctrines, such as the National Socialist or the Soviet systems, expressed and their obstinate purpose of undermining every principle of legality. In a subsequent chapter, López de Oñate analyses the fight against arbitrariness, where the process becomes a means towards certainty available to Law, where the legal experience is revealed in its fullness. López de Oñate emphasizes the fight for certainty, as Francis Bacon, Baron Verulam of Verulam (1561-1626), had already done at his time, by highlighting the contribution of the Science of Law to the elimination of such arbitrariness. This masterly essay ends with a chapter entitled “Certainty as specific Law ethics” (pp. 101-107) which is a conclusive reflection on the book as a whole. In it, López de Oñate turns to Anatole-François Thibault (1844-1924), Giuseppe Capograssi and Widar Cesarini Sforza (1886-1965)5 and, in these final pages, he finds the solution not only to the alleged contradiction between Law and equity, but also to the opposition between the spirit and the contents of Law, or to the contradiction between Morals and Law6. Hence he manages to come to the realization that certainty involves specific Law ethics.
But much more can be found in this small book: the transcendence of rules to society, Law as the individual’s guarantee, the value of legality and the ethical State. In short, we are faced with a piece of work whose central thesis is crucial: «The requirement of certainty of action is met by the presence of legality in equity, equality in diversity, of permanence in variation, which will act in the certainty of Law» (p. 105).
The sentence that introduces Flavio López de Oñate’s work may serve as a culmination, which is an accurate reflection by Friedrich Carl von Savigny (1779-1861): «The certainty of Law, which makes laws so beneficial» (p. 1). [Recibida el 6 de septiembre de 2011].


1 See Alejandro Romero Seguel, “Eduardo J. Couture”, in Diccionario crítico de juristas españoles, portugueses y latinoamericanos (hispánicos, brasileños, quebequenses y restantes francófonos), Zaragoza-Barcelona, 2005, Vol. I, pp. 253-255, No. 248.

2 See Faustino Cordón Moreno, “Piero Calamandrei (1889-1956)”, in Juristas Universales, Madrid-Barcelona, 2004, Vol. IV, pp. 186-191.

3 See Jesús Ballesteros, “Giuseppe Capograssi (1889-1956), Juristas Universales, Vol. IV, pp. 184-186. Ballesteros himself devoted a book to Capograssi, namely La filosofía del Derecho de Giuseppe Capograssi, Madrid, 1973. It should be pointed out that the first Spanish author who wrote on Capograssi was Amadeo de Fuenmayor, de qua vid. Manuel J. Peláez, “Amadeo de Fuenmayor Champín (1915-2005)”, in Diccionario crítico de juristas españoles, portugueses y latinoamericanos, Zaragoza-Barcelona, 2005, Part 2, Vol. II (= Vol. III of the collection) pp. 365-371, No. 1,084, who, in his unpublished memoir on Concepto, Método y Fuentes del Derecho Civil español, común y foral, Madrid, June 1942, wrote about Giuseppe Capograssi’s assessment on Antonio Rosmini Serbati’s thought (1797-1855), who considered all types of Law as Private Law and, then, distinguished between Individual Law and Social Law (Fuenmayor, Concepto, p. 82).

4 Unless otherwise stated, English translations of quotations are ours.

5 See José Calvo González, “Widar Cesarini Sforza (1886-1965)”, in Juristas Universales, Vol. IV, pp. 145-148; Manuel J. Peláez, “El aristócrata Widar Cesarini Sforza (1886-1965), catedrático de las Facultades de Jurisprudencia de Pisa y de Roma: veneno fascista en el pensamiento jurídico del siglo XX”, in Contribuciones a las Ciencias Sociales, September 2008, pp. 1-26. [On line:]; and, Carlo Lottieri, “Alle origini della teoría del diritto come pretesa individuale. Da Widar Cesarini Sforza a Bruno Leoni”, in Materiali per una storia della cultura giuridica, Year XLI, No. 1 (June 2011), pp. 63-89, who points out that during the fascist regime Cesarini Sforza was a moderate man (p. 78), thus clearly disagreeing with M. J. Peláez. Calvo González has translated into Spanish a book by Cesarini Sforza, which has been well received by the Spanish doctrine, but we do not know if his contribution on Count Cesarini’s Il diritto dei privati has been valued among Italian Law philosophers.

6 There is a good synthesis by Alfredo Rodríguez García, “Derecho y Moral”, in Cuadernos informativos de Derecho histórico público, procesal y de la navegación, No. 19-20 (December 1996) [1997], pp. 5,191-195, 252, and Patricia Zambrana Moral’s evaluative response on the relationship of Morals, Law and Ethics in her scientific review article “Antonio Millán-Puelles, Alfredo Rodríguez García y Leonardo Polo Barrena (Derecho, Ética y Moral)”, in the same Cuadernos informativos de Derecho histórico público, procesal y de la navegación, No. 19-20 (1996) [1997], pp. 5,629-5,668, which includes a vast critical body of literature.

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