The Legacy of Pluralism

The Introduction explains why it is worth reading Santi Romano's, Carl Schmitt's, and Costantino Mortati's theories against each other. They advanced prototypical solutions to the problem of radical pluralism and how the state could deal with nonstate normative entities. Theirs were seminal reflections on the destiny of the state vis-à-vis the rise of nonstate bodies that rejected the myth of modern statehood and claimed jurisdictional and legislative autonomy. On one hand, these authors' theories are related to each other as they recognize that the proliferation of normativity is an intrinsic dynamic of social life. On the other, they came to altogether different conclusions on how this dynamic should be governed in order for a political community to come into existence and continue to exist. The Introduction finally elucidates why and in what sense these eminent versions of classic legal institutionalism are key to understanding today's pluralism.

This chapter offers an account of the rise of legal theory as a discipline. It begins by expanding on how and why in the nineteenth century legal theorists felt the need to draw the borders of their discipline and what effects it had on the understanding of the relation between law, politics, and society. It then explores the most remarkable reactions to the outcome of legal theory becoming a specialized discipline, or rather, the identification of the general phenomenon of law with the law of the state. Based on this analysis, these pages go on to offer a short description of what pluralism looked like between the nineteenth and the twentieth century. The chapter concludes by explaining in what sense the relation between the specialization of legal theory and the conceptualization of pluralism provides the key to understanding Romano, Schmitt, and Mortati.

This chapter illustrates Romano's groundbreaking theory by presenting his conceptions of institutionalism and pluralism as coherently glued together. All that is organized is an institution; all institutions are legal entities. No privileged legal entity exists that can claim other entities are not legal. Based on this radical view, Romano's overall contribution comes down to the conclusion that the only way to make social and political pluralism work is to provide a purely jurisprudential account of it—one that remains within the boundaries of the juristic practice and downplays politics as an ancillary, contextual activity of governing. The chapter then makes the case that Romano intended to put forward a conception of legal theory as a technique of description that is capable of engendering particular social outcomes—as well as effects of domestication and compatibility in so far as social pluralism is concerned.

This chapter centers on Carl Schmitt's influential theorizing by exploring his thoroughgoing revision of his previous decisionist paradigm. It investigates the major theoretical move whereby, based on Maurice Hauriou's and Santi Romano's teachings, Schmitt dispensed with his famed theory of the exception and put forward his "concrete order and formation thinking." While his persisting obsession was with the homogeneity of the political community, he importantly changed his mind as to how it can be attained and how it should be preserved. These pages also shine a light on the difference with Santi Romano's idea of order, especially as to how their disagreeing conceptions of it led to disagreeing conceptions of pluralism. Schmitt's revision of his own theory, juxtaposed to Romano's firm conceptualization of the juristic point of view, teases out what is at stake in the late-modern relation between the juridical and the political.

The aim of this chapter is twofold. It initially illustrates Mortati's version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati's reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.

The chapter takes stock of the preceding analyses and assesses Romano's, Schmitt's, and Mortati's institutionalism according to two interpretive axes that are extracted from a systematic reading of their work. Both axes provide an oscillation band across which their theories can be located and their differences appreciated. The first axis is built around conceptions of legal knowledge, and its coordinates are represented by political and juristic views of legal knowledge. The second part of the chapter focuses on the other axis: the relation between social relations and nomic force. In this final part, the chapter makes the case that at the intersection of the two axes it is possible to observe how distinctive and original the contributions of Romano, Schmitt, and Mortati are.

This conclusion offers a brief summary of the main findings of the book. The central concerns of these legal institutionalists—namely, how nomic force molds social relations and the role of legal science in this process—are recapitulated. In the other part of the Conclusions, the emphasis is placed on the relevance of these approaches to law for the contemporary debate, with a focus on the issues caused by globalization and the proliferation of legal orders at different levels. A brief comparison with the methodology adopted by global administrative law, global legal pluralism, and constitutional pluralism is proposed as an illustration of the rich contribution Romano, Schmitt, and Mortati can make to the understanding of the present.