Abstract
This chapter shows that, at the beginning of the twentieth century, the school of thought known as ‘legal institutionalism’ (which some interpreters call ‘classic’ in order to distinguish it from more recent institutionalist paradigms) was able to capture almost all of the elements discussed in the preceding chapters. By analysing the proposals of the founding fathers of Italian classic institutionalism, Santi Romano and Widar Cesarini Sforza, the chapter contends that these authors provide a convincing analysis of the nature of law, without recourse either to morality or to coercion. Although both support a radical version of legal pluralism, they are convinced that legal theorists are required to identify the differentia specifica of law. The comparison between their views on legal phenomena will be particularly functional to the main goal of this book. In the first instance, the chapter examines Romano’s view and casts some light on a thorny problem emerging out of it, which is called ‘Romano’s dilemma’. Then it goes on by arguing that that a first step to solve Romano’s dilemma can be found in Cesarini Sforza’s legal thought and in the conceptual tools he provides. At the end of the chapter it is argued that an integration between Hoebel’s and Cesarini Sforza’s perspectives allows the formulation of a new hypothesis on the nature of law, which is called ‘thin functionalism’.
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Notes
- 1.
Notice that Massimo La Torre (2009, 69) considers as “‘legitimate’ theories of institutions” only Hauriou’s and Romano’s, while the others are more or less “spurious”. For a detailed analysis of Schmitt’s theory of institution see Croce, Salvatore 2012, Chaps. 1, 2, 3, 4. For a concise comparison between Schmitt’s and Hauriou’s theories, see ibid.,Chap. 6. For a broader view on French institutionalism, see Broderick (1970).
- 2.
The only thing that should be considered is that that the terms ‘institution’ and ‘institutionalised’ in the last decades have acquired a slightly different meaning from those I will have in mind while writing the following pages. Today ‘legal institution’ is generally referred either to legal objects such as contracts and marriages or to organisations such as parliaments and tribunals, while ‘institutionalised’ is usually understood as governed by certain actors in accordance with certain procedures in certain particular areas. This can also be evinced by what MacCormick (2007, 12), one of the unquestioned leaders of new institutionalism, writes at the beginning of Institutions of Law: “For those concerned with law in the sense of the law of a contemporary state, ‘municipal positive law’, the idea of institutional facts [that the authors refers primarily to the work of Searle] links up easily with the idea that an important element in such law is formed by ‘institutions’ such as contract, property, marriage, trust, foundation (Stiftung), and the like. It also connects with the idea that law is ‘institutional’ in the sense of being administered through ‘institutions’ such as courts, legislatures, public prosecution agencies, police forces, and the like”. As it will emerge in this chapter, the idea of institution shared by the supporters of classical institutionalism is more complex.
- 3.
Author’s translation. Unless otherwise noted, all translations of Romano’s and Cesarini Sforza’s works in this and other chapters are my own.
- 4.
Significantly, this is the interpretation given by Carl Schmitt (1934/2004) for reinforcing his own conclusions concerning the institutional character of the legal order. In arguing for an ontogenetic dependence of norms on the ‘concrete situation’, Schmitt contends (ibid., 57) that legal rules can never trigger social change but can only follow it. Then he quotes the passage of L’ordinamento giuridico where Santi Romano (1918/1977, 17) writes that the order “moves the norms like pawns on a chessboard”, norms being “mostly the object or also the instrument of its activity, and not so much an element of its structure” (translation partially revised). In Croce (2011a) I argue that this interpretation of Romano’s theory of law is highly misguided.
- 5.
On the term ‘jural’, see infra, note 7.
- 6.
As I will say shortly, Cesarini Sforza is among them. But more in general, in the Italian legal debate of the first decades of the twentieth century, the ‘theory of legal relationship’ had many supporters (see Catania 1998, 16).
- 7.
From the 1928 to the 1944 Romano was the President of the Italian Council of State, which is the court of last resort in the field of administrative justice.
- 8.
The Italian term used by Cesarini Sforza is ‘giuridico’, which actually is generally rendered into the English term ‘legal’. However, the particular way in which he employs this word closely recalls Wesley N. Hohfeld’s (1919). For an instructive account of ‘jural relations’ in this latter sense, see Ross (2001), Chap. 7. See also Roscoe Pound’s (1948) enlightening considerations as regards the different meaning of ‘legal’ and ‘jural’.
- 9.
I use the translation proposed in La Torre (2010), 100.
- 10.
See supra, 3.6; infra, 8.4.
- 11.
By the way, it should be noted that Cesarini Sforza holds a narrower concept of power than Romano. In fact, he mainly thinks of it as the capacity one has to impose their own will over the will of the other and thus to make someone do what they would not have otherwise done.
- 12.
See supra, 3.2.
- 13.
See supra, 2.2.3.
- 14.
This point is rather close to what Karl Llewellyn (1940, 1362–1363) asserts as to normative generalisations, which always contain “some quantum of idealization, of projection beyond the actual” and are “selected for their basis, and shaped for their content, color, and direction, to serve some, and against others”.
- 15.
See supra, 3.6.
- 16.
Cesarini Sforza defines a rule as “a practical utterance of a behaviour that conforms to another behaviour, so as to obtain the same objective, i.e. the indication of a typical or abstract action” (ibid., 38). He goes on by saying that in one’s following this kind of rule, their motive is irrelevant. For such rules are not technical rules, that are followed in order to achieve some end. Quite the contrary, they have a reason in themselves: their sole end is to serve as typical standards. In addition, they are structurally public, in that they provide epistemic tools for understanding interactions. I think that the family resemblances between the theoretical background of the rule-based model of law and Cesarini Sforza’s institutional thought are so evident that I can avoid further considerations on this matter.
- 17.
See infra, 7.4.
- 18.
I should note that Twining elaborates the notion of thin functionalism as a response to Tamanaha and his criticisms against functionalist theories of law. Tamanaha points out that functionalism could be charged with two main flaws: “It presupposes that law […] plays a major role in maintaining social order, when its role is often relatively marginal, and it keys on this function to the exclusion of other possible functions and effects of law” (Tamanaha 2000, 302). As we will see, and as Twining argues, thin functionalism is not affected by these flaws.
- 19.
See Twining (2000), 75–77.
References
Broderick, A. (ed.). 1970. The French institutionalists: Maurice Hauriou, Georges Renard, Joseph T. Delos. Cambridge: Harvard University Press.
Catania, A. 1998. Manuale di teoria generale del diritto. Roma-Bari: Laterza.
Cesarini Sforza, W. 1929. Il diritto dei privati . Milano: Giuffrè. Repr., 1963.
Cesarini Sforza, W. 1954. Filosofia del diritto. Corso 1953–54. Roma: Libreria Ricerche.
Croce, M. 2011a. Does legal institutionalism rule out legal pluralism? Schmitt’s institutional theory and the problem of the concrete order. Utrecht Law Review 7(2): 42–59.
Galanter, M. 1981. Justice in many rooms: Courts, private ordering, and indigenous law. Journal of Legal Pluralism and Unofficial Law 19: 1–47.
Hohfeld, W.N. 1919. Fundamental legal conceptions as applied in judicial reasoning. New Haven: Yale University Press.
La Torre, M. 2009. Institutional theories and institutions of law: On Neil MacCormick’s savoury blend of legal institutionalism. In Law as institutional normative order, ed. M. Del Mar and Z. Bankowski, 67–82. Farnham: Ashgate.
La Torre, M. 2010. Law as institution. Dordrecht: Springer.
Llewellyn, K.N. 1940. The normative, the legal and the law-jobs: The problem of juristic method. Yale Law Journal 49(8): 1355–1400.
MacCormick, N. 1998b. Norms, institutions, and institutional facts. Law and Philosophy 17(3): 301–345.
MacCormick, N. 2007. Institutions of law: An essay in legal theory. Oxford: Oxford University Press.
Mann, M. 1986. The sources of social power. A history of power from the beginning to A.D. 1760, vol. 1. Cambridge: Cambridge University Press.
Moore, S.F. 1973. Law and social change: The semi-autonomous social field as an appropriate subject of study. Law & Society Review 7(4): 719–746.
Pound, R. 1948. Preface. In Sociology of law, ed. G. Gurvitch, ix–xv. London: Kegan Paul.
Romano, S. 1918/1977. L’ordinamento giuridico, 2nd revised and enlarged edition. Firenze: Sansoni.
Ross, H. 2001. Law as a social institution. Oxford/Portland: Hart Publishing.
Schmitt, C. 1934/2004. On the three types of juristic thought. Westport: Praeger.
Tamanaha, B.Z. 2000. A non-essentialist version of legal pluralism. Journal of Law and Society 27(2): 296–321.
Twining, W. 2000. Globalisation and legal theory. Cambridge: Cambridge University Press.
Twining, W. 2009. General jurisprudence. Understanding law from a global perspective. Cambridge: Cambridge University Press.
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Croce, M. (2012). Classic Institutionalism: Jural Reality and Legal Selection. In: Self-sufficiency of Law. Law and Philosophy Library, vol 99. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4298-7_7
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