ALL DISCIPLINES ARE REPLETE with opposing intellectual forces voicing the richness of the human reflective attitude to who we are and how we organize our coexistence. All geohistorical contexts are traversed by more or less irreconcilable accounts of what their present is and what its characterizing traits are. The conceptual history we set out to explore is particularly remarkable for these oppositions and contradictions. Most of the plot of this book unfolds between the rise of late nineteenth-century radical pluralism and the post–World War I establishment of totalitarian regimes—a complex sociopolitical scenario in which national states were facing a lethal threat. Antiparliamentary, socialist, and Marxist movements; insurrectionary anarchism; irredentism; revolutionary syndicalism; and other antisystemic turbulences were challenging the authority of the state and the preeminence of state law over alternative forms of governing and, more profoundly, structuring the social world.
As early as 1909, leading Italian jurist Santi Romano—one of the three protagonists of this book—identified the pluralist state as the political form that would succeed to the (seemingly) more cohesive national state. In an essay called Lo Stato moderno e la sua crisi (The Modern State and Its Crisis) he maintained that such a political turmoil would change once and for all the shape of the state as a supreme authority endowed with exclusive legislative powers and the monopoly of coercion. The alleged unity of the state—which Romano regarded as a fictitious production of state public law—was confronted with “a set of organizations and associations . . . [that] are endowed with a blooming life and an effective power [and that] tend to join and to connect with each other.”1 Romano believed this process would be conducive to the gradual decline of the legislative state that emerged out of the French Revolution and to the complete reorganization of its apparatus as a much looser complex of semiautonomous substate bodies.
However realistic Romano’s portrait may have seemed in the first decade of the twentieth century, it would soon be supplanted by the rise of totalitarian regimes intended to overcome the problem of pluralism with a drastic, brutal, and eventually disastrous solution. Despite this, the main claim we will make in the following chapters is that Romano, along with German jurist Carl Schmitt and Italian jurist Costantino Mortati, deployed accounts of the interplay between pluralism and the state that offered intriguing alternative solutions to the one which many Western states would soon adopt. A related claim is that these accounts were not only able to favor an alternative juridico-political scenario at the time—their considerations on how the state should cope with radical pluralism are particularly relevant to present-day politics as well.
Romano, Schmitt, and Mortati are leading figures of classic legal institutionalism, one of the most influential schools of thought in Western legal theory. It is between the end of the nineteenth century and the first half of the twentieth century that classic legal institutionalism developed as a counterhistory of law. It is describable as a “counterhistory” because most of its representatives never yielded to the common view that the law and the state coincide, and a fortiori the history of law and the history of the state. Nor did they accept that the destiny of law is formal constitutions. While some institutional theories were certainly more apt to shore up state-based political arrangements, most of them, even state-centered ones, made the case that law is a broader phenomenon than the political structures that give legal orders a context-specific shape. Not only was such a theoretical feat scarcely facetious—at the time it also sounded as somewhat sacrilegious. In effect, the nineteenth century had witnessed the rise and consolidation of powerful and cohesive states (including states that had lagged behind in terms of territorial unification, such as Germany and Italy), so much so that in the legal field debates mainly revolved around the foundational character of the sovereign will of the state, its legal personality, and the state’s being the ethical shell of the national community.
Legal institutionalists took very seriously the series of unexpected fissures and breakpoints that at the end of the nineteenth century was threatening the state as the political form par excellence. In effect, a great many civil society associations, political organizations, and antisystemic movements were posing a lethal threat to the very idea of the state as the destiny of politics. These emerging social actors begun to depict the state as a corrupted and hegemonic construct that the dominant elites nurtured to sway civil society and the myriads of spontaneous, self-organizing forces at play within them. Within the polyvocal scene of European legal theorizing, legal institutionalists tried to decipher and handle the crisis to come—one that pitted the several claims to political autonomy and legal independence against the increasingly despotic power of the executive. For sure, other key legal and political paradigms, such as Otto von Gierke’s law of associations, G. D. H. Cole’s guild socialism, Harold Laski’s political pluralism, Max Weber’s sociological conception of law, Léon Duguit’s sociolegal functionalism, Eugen Ehrlich’s and Hermann Kantorowicz’s Free Law Movement, were trying to pinpoint the difficult relationship between the centripetal attraction of a supreme political entity (the state) and the centrifugal plurality of social life (substate and suprastate movements, associations, and organizations).2 However, legal institutionalists, and especially Romano, Schmitt, and Mortati, deployed a strikingly rich conceptual tapestry to explain why and how late nineteenth-century administrative state was ceasing to be the secure anchor for, and the linchpin of, speculation about the nature of law.
The recognized initiator of classic legal institutionalism3 was French jurist Maurice Hauriou.4 After him, many other institutional models were developed in France, Germany, Italy, and other countries. However, this book centers on the legal theories of Romano, Schmitt, and Mortati for one major reason. As we will elucidate in Chapter 5, they offered prototypical solutions to the problem of radical pluralism and how the state should deal with nonstate normative entities. In this context it would be certainly pointless to summarize these solutions and how these three scholars made their way to them. Accordingly, the aim of this Introduction is to illustrate how we plan to account for all this.
The leitmotiv of our exploration will be the double relation of juristic versus political conceptions of law and the interplay between matter and nomic force. Though these notions will become clearer as we go along, a few preliminary considerations will be of help. The opposition of juristic and political understandings is somehow inscribed in the history of Western law. Despite all attempts at singling out distinctive traits, from the Roman ius civile to medieval glossators’ and postglossators’ law through to modern state-based law, the legal phenomenon has taken many a shape depending on the sociopolitical arrangement. Doubtless, an important characteristic differentiating the various conformations of law is the relation between the legal and the political realms and thus the law’s degree of autonomy or independence from politics. Juristic conceptions are those that tend to minimize the degree of dependence. Not only are the legal and the political separate realms (what also many advocates of political notions could easily acknowledge), but the law, its contents, and its procedures are never conditional on politics. Most juristic conceptions regard the law as a knowledge-based practice with a language and categories of its own, administered by trained experts. The law does not need political power either to be produced and amended or to be applied. The relation with politics, as it were, is extrinsic. Quite the opposite, political conceptions deem the law to be (to different degrees) conditional on the political structure of society. Depending on the particular theoretical paradigm, the law can be portrayed as the effect of a political decision or the outcome of struggles over the monopoly on political power. But the common element among the various political conceptions is that, whether or not law and politics are distinct organizational phenomena (and this varies according to the particular political conceptions one examines), the legal realm and its operators are granted limited autonomy. For the law to be produced, applied, and amended, political power and procedures are needed. The relation with politics is intrinsic.
It would be senseless to maintain that one of these views is wrong and the other correct. More appropriately, it could be argued that the juristic-political is a continuum with opposite ends. At one end, the law is largely casuistic, knowledge-based, administered by (more or less) autonomous elites. At the other end, the body of people who oversee legal procedures are subjected to political power, while legal rules and categories are produced and changed in compliance with politically implemented institutional mechanisms. Therefore, the continuum in question is able to capture the legal phenomenon at a particular stage in a particular geohistorical context—in the sense that the law of this or that context can find place in a particular section of the continuum. Without shreds of doubt, however, the law that emerged out of the multiple dynamics of codification and constitutionalization of the eighteenth century was decidedly political. Those dynamics inaugurated state legal orders as systems pivoted on a hierarchy of sources with the legislative power at its acme, while jurists (whether law professors, magistrates, or judges) became state officials. Needless to say, it is impossible in this context to offer a full account of such a historical process, nor is this among the focuses of the present book. Despite this, it is vital to keep in mind the distinction between the juristic and the political because it is at the heart of our account of Romano’s, Schmitt’s, and Mortati’s theories. For the juxtaposition of these authors epitomizes the movement from one end to the other end of the continuum.
We will account for the relationship of the juristic to the political by exploring how these three jurists conceptualized pluralism. It is here that the issue of nomic power and its relation to materiality comes to surface. To put it shortly, nomic power is an entity’s potential for producing normativity while materiality is the set of practical activities this entity engages in. A major focus of this book is the question of if, and to what extent, nomic power arises from materiality. Romano advanced a notion of institution as the interplay of nomic power and the material. In his juristic conception of law, law-producing practices always call for knowledge-production processes that give them legal shape. All entities that are organized regulate their practice through a form of knowledge that he had no qualms about defining “legal.” The law, which is a structural property of all organized entities, is the process of organization itself as accompanied by a form of knowledge. On this account, the nomic and the material are not severable. While Romano held on to this view throughout his life, Schmitt had a striking turn of mind. Early in the 1920s he almost exclusively concentrated on the nomic power that the political sovereign confers on materiality with a decision, to the extent that materiality was portrayed as inert or even lifeless before this act of inception enlivened it. At the end of the 1920s, he gradually reconsidered the role of materiality. He attached more and more importance to the social practices that contribute to the normative life of a political community, and revised the role played by the political. The political power became a sieve rather than a dispenser of normativity. Finally, Mortati developed his political conception of law as he contended that the nomic is intrinsic to the material, in the sense that it is a peculiar conformation of the latter that triggers the former. More specifically, it is a certain aggregate of social forces that creates the conditions for the law to emerge and work effectively.
1. S. Romano, “Lo Stato moderno e la sua crisi,” in Lo Stato moderno e la sua crisi. Saggi di diritto costituzionale (Milan: Giuffrè, 1969), 5–26, at 12.
2. Interestingly, some of these authors (with other institutionalists) were at the core of the early edited collection, W. Jennings, ed., Modern Theories of Law (Oxford: Oxford University Press, 1930).
3. It is worth clarifying at the very outset of this book that classic legal institutionalism should be set apart from more recent trends of legal institutionalism. The most influential version of the latter emerged as a set of theoretical proposals to reconcile legal positivism with the theory of institutional facts (originally developed by G. E. M. Anscombe and John R. Searle). In one of the leading works in the field of new institutionalism—N. MacCormick and O. Weinberger, An Institutional Theory of Law (Dordrecht: Springer, 1986)—the authors argue that when people reach an agreement, when they take part in a ceremony, when they watch a football match, these all are experiencing institutional facts. Those are particular facts, which are true not because of any inner qualities but by dint of the practices and norms that every participant shares and (at least implicitly) knows. Such facts are “not true simply because of the condition of the material world and the causal relationships obtaining among its parts”; on the contrary, they are “true in virtue of an interpretation of what happens in the world, an interpretation of events in the light of human practices and normative rules” (MacCormick and Weinberger, An Institutional Theory of Law, 10). The crux of this type of legal institutionalism is that those institutional facts’ being true can be only tested hermeneutically: these facts exist as long as the participants believe them to exist. As the members of a community assume an internal point of view, they become inclined to look at the legal rules, not as compulsory menaces, but as practices that are shared and are followed just (even if not only) because they are shared. These practices organize the social life of the population by providing standards for assessing and (when necessary) criticizing the conduct of each other. In this hermeneutic light, institutional facts are considered as occurrences mediated by concepts that social actors use and apply when they act in the various ambits of social life. Accordingly, institutions are systems of norms that create spheres of meaning. Such norms have the form of constitutive norms (à la Searle) establishing “what counts as an x,” where the variable stands for a contract, a marriage, a testament, a championship, a parliamentary procedure, and so on. While the context of this footnote is certainly not adequate to explore the differences with classic legal institutionalism, it will soon become evident that none of the classic institutionalists ever reduced law to norms of whatever type. As we will discuss in depth, it is the notion itself of institution that the two institutional families work with that is altogether different. The distance between these two versions of legal institutionalism is made visible by the absence of any discussion of the first wave of legal institutionalism in MacCormick’s late reformulations. See N. MacCormick, Institutions of Law (Oxford: Oxford University Press, 2007). An in-depth discussion of MacCormick’s peculiar approach to institutionalism is available in M. Del Mar and Z. Bankowski, eds., Law as Institutional Normative Order (Farnham, UK: Ashgate, 2009). Another recent stream of legal institutionalism is emerging in the US-based debate on the relation between law and the economy, and it is a reaction against the methodology of Law & Economics. It has to be noted that this is, again, a different model of legal institutionalism, one that (against Law & Economics, indeed) aims at retrieving the constitutive function of formal law and social rules for the development of contemporary economies. A concise statement of this theoretical position is given in S. Deakin, D. Gindis, G. Hodgson, K. Huang, and K. Pistor, “Legal Institutionalism: Capitalism and the Constitutive Role of Law,” Journal of Comparative Economics 45 (2017): 188–200.
4. Unlike the authors at the center of this book, Hauriou and the other French institutionalists have received some attention in the Anglophone debate. See A. Broderick, The French Institutionalists (Cambridge, MA: Harvard University Press, 1974).