The Legal Order

Romano, Santi; Loughlin, Martin; Croce, Mariano

doi:10.4324/9781315164519

Cited by 35 publications

(25 citation statements)

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“…Less than a decade after the 'The Modern State and its Crisis', Romano published The Legal Order (Romano, [1918] 2017), in which he revisited the question as to how the state and its laws related to non-state institutions and their laws. In the first part of the book, entitled 'The Concept of a Legal Order', Romano presented his institutionalist theory of law, building on the insight that law was not merely a set of norms, but an institution, that is, a form of collective self-organization.…”

Section: The Legal Ordermentioning

confidence: 99%

“…They have legislative and executive authorities, courts that settle disputes and punish, statutes as elaborate and precise as state laws. (Romano, [1918(Romano, [ ] 2017 The main question was therefore what role the state played among this plurality of legal orders, and, more particularly, whether it could still be considered as a superior organization capable of mitigating and harmonizing social conflict.…”

Section: The Legal Ordermentioning

confidence: 99%

“…For instance, it had proved incapable of explaining the concept of the legal sanction: although an integral part of any legal system, sanctions for violating legal norms could not themselves be regarded as norms. Hence, as Romano observed, 'if one only concentrates on norms, one ends up denying sanction being a feature of law' (Romano, [1918(Romano, [ ] 2017. Instead, Romano argued that law could not be defined as a set of norms, but as the entity that informed and shaped those norms: 'the legal order, taken as a whole, is an entity that partly moves according to the norms, but most of all moves the norms like pawns on a chessboard' (7).…”

Section: The Legal Ordermentioning

confidence: 99%

“…The appearance of the English translation of Santi Romano's L'Ordinamento guiridico (Romano, [1918] 2017) is an important event for legal and political theory. Romano's book, which had already been translated in French, German, Spanish and Portuguese, is one of the most original and influential contributions to an institutionalist jurisprudence.…”

Section: Introductionmentioning

confidence: 99%

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The dark side of institutionalism: Carl Schmitt reading Santi Romano

Wilde

2018

Ethics & Global Politics

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This article analyzes and compares the institutionalist theories of law developed by Santi Romano and Carl Schmitt. In the early 1930s, Schmitt referred to Romano to explain his own conversion to an institutionalist jurisprudence, which he preferred to call 'concrete order thinking'. Both Romano and Schmitt criticized the normativist approach to law characteristic of legal positivism. Instead, they developed an institutionalist approach that regarded legal norms as secondary phenomena, pointing at the importance of the underlying institutional order, which shaped and informed these norms. More particularly, both Romano and Schmitt believed that the crisis of the modern state could only be overcome by recognizing the juristic character of non-state institutions and their legal orders. However, unlike Romano, Schmitt used 'concrete order thinking' to advocate an ideological reinterpretation of law: he thus presented the National-Socialist Führerprinzip as a 'great example' of 'concrete order thinking' and called upon German judges to reinterpret the socalled 'general clauses' in statutes in line with the National-Socialist ideology. While Schmitt developed 'concrete order thinking' into a theoretical justification of the totalitarian state, Romano emphasized the neutral and descriptive character of his institutionalist theory. Unlike Schmitt, he concluded that non-state institutions and their legal orders could never be completely incorporated into the state, but continued to exist and develop in its shadows.

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Section: The Legal Ordermentioning

confidence: 99%

Section: The Legal Ordermentioning

confidence: 99%

Section: The Legal Ordermentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

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The dark side of institutionalism: Carl Schmitt reading Santi Romano

Wilde

2018

Ethics & Global Politics

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“…Santi Romano's institutional theory of legal orderas presented in The Legal Order (Romano, 2017) aims to lay the ground for what appears to be a particularly radical form of legal pluralism. Romano's key thesis is the identification of legal order and institution, that is, the claim that every institution is a legal order and that every legal order is an institution (16).…”

Section: Introductionmentioning

confidence: 99%

Santi Romano against the state?

Vinx

2018

Ethics & Global Politics

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This paper argues that Santi Romano's legal institutionalism is driven by implicit normative assumptions that stand in tension with Romano's commitments to legal positivism and legal pluralism. Romano's approach to the individuation of legal orders is indefensible on purely descriptive grounds, as it rests on a picture of good social order. That picture, in turn, gives more prominence to the state, as an institution of institutions, than one would expect in a thoroughly pluralist legal theory. Romano's reflections on the different ways in which institutions can become legally relevant to one another is nevertheless highly valuable. It provides the toolkit for developing a normatively attractive conception of the legal relations of the state to other institutional orders.

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Digital Fundamental Rights in the EU

Manganelli

Nicita

2022

Palgrave Studies in Institutions, Economics and Law

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The Legal Order

Cited by 35 publications

References 0 publications

The dark side of institutionalism: Carl Schmitt reading Santi Romano

The dark side of institutionalism: Carl Schmitt reading Santi Romano

Santi Romano against the state?

Digital Fundamental Rights in the EU

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