“Something More Lively and Animated Than the Law”: Institutionalism and Formalism in Santi Romano’s Jurisprudence

• Published date: 01 June 2020
• Date: 01 June 2020
• DOI: http://doi.org/10.1111/raju.12291

© (2020) John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 2 June 2020 (241–257)

NOTES • DISCUSSIONS

“Something More Lively and Animated

Than the Law”: Institutionalism

and Formalism in Santi Romano’s

Jurisprudence

GIULIO ITZCOVICH

1. Premise: Two Images of Romano’s Jurisprudence

The “Foreword” by Martin Loughlin and the “Afterword” by Mariano Croce to the

English translation of Santi Romano’s L’ordinamento giuridico (Romano 2017) have the

merit of highlighting two important and at first sight contradictory aspects of Romano’s

work: his theoretical institutionalism and his methodological formalism. In what fol-

lows, I will argue that institutionalism and formalism are not contradictory but rather

complementary in Romano’s jurisprudence. They imply each other, work together, and

their conjunction, although problematic, makes Romano’s stance distinctive and origi-

nal. That they might appear contradictory, however, is certainly true and clearly results

from the reading of the two critical essays in the volume. Loughlin and Croce provide

slightly and yet significantly different accounts of Romano’s thought and, in so doing,

they draw attention to the possible tension between institutionalism and formalism.

Loughlin emphasises the institutionalist aspect, and thus places Romano in the

intellectual context of French philosophical positivism, of the birth of sociology and

of the antiformalist critique of legal positivism. He even finds in Romano “a radically

empirical account of legal order,” which distrusts “conceptualist legal thinking” and

shares many of the “more sociologically-oriented jurisprudential ideas of the time”

(Loughlin 2017, xviii and xiv). Moreover, according to Loughlin, Romano adopted a

“hermeneutical method” that regards the law “not as some abstract principle, but as

an entity found in life itself” (ibid., xxii). Romano might not have been directly influ-

enced by Dilthey and James, but nonetheless belonged to the same broad intellectual

context of German historicism and American pragmatism; he too was aware of the

“necessity of relating text to context, norms to life” (ibid., xiv). Indeed, for Romano

the content and nature of law could better be grasped in the interplay, rather than in

the sharp distinction, between “ought” and “is”—between norms and reality, valid-

ity and effectiveness, doctrine and practice. “For the definition of the function and

Giulio Itzcovich242

Ratio Juris, Vol. 33, No. 2© (2020) John Wiley & Sons Ltd.

thus of the concept of law,” writes Romano, “it is necessary to [...] climb back [risalire]

from the sphere of ought to the sphere of is,” thus suggesting that the former is placed

below the latter and is ultimately less important (Romano 1947, 80; see also 70).

On the other hand, Mariano Croce focuses on Romano’s methodological for-

malism. He rightly stresses that Romano “availed himself of the tools of legal

dogmatics”—which frankly seems the opposite of Loughlin’s radically empirical ap-

proach—and recalls that Romano urged jurists to avoid “any contamination of the

juristic point of view with non-legal concepts and methods” (Croce 2017, 114 and 116).

This significant aspect of Romano’s thought is at odds with any antiformalist read-

ing of his jurisprudence. Notwithstanding his theoretical institutionalism, Romano

had an almost Kelsenian notion of the necessary purity of legal knowledge. It was a

strictly rechtsdogmatisch conception of the legal method, inspired by certain strands of

German Staatslehre and by his Maestro, Vittorio Emanuele Orlando. One could even

maintain that Romano’s ideal interlocutors, more than institutionalists like Hauriou

and Duguit, were Gerber, Laband, Jellinek, Triepel, and Kelsen himself. These were

the authors he always looked to, the ones he most frequently quoted, and whom he

occasionally—and in the case of Kelsen systematically (Frosini 1985)—criticised. The

influence of sociology on Romano, if any, is indirect and does not affect his quite tra-

ditional understanding of the legal method.

Croce even goes as far as to relate Romano’s methodological formalism to a the-

oretical intuition about the nature of law. Romano’s “strictly legal and highly con-

sistent analysis” brought to light—almost inadvertently, one could say—an “inborn

characteristic of law,” that is, its capability of making things happen through lan-

guage (Croce 2017, 119). According to this reading, Romano’s formalism stemmed

from the awareness that legal science is a “technique of description that is capable of

engendering specific social outcomes”; the legal language works as an “intelligibil-

ity condition” of a distinct social practice; it has “performative effects,” and the law

is “a place from which society can be described in a way that affects it” (ibid., 117,

123, and 124). The main social outcome of such a purely technical-legal description

is, for Romano, the stabilisation of society, the mediation and neutralisation of so-

cial and political conflicts, the integration of the social dynamic into the legal order.

Once depicted in a purely legal, objective way, the social dynamic can produce its

legal effects in an orderly fashion. Formalism is indispensable for the law to perform

what Romano called its “conservative” function, that is, “stabilising, normalising,

fixing certain moments and movements of social life” (Romano 1947, 86). Indeed,

for Romano the law constituted an entirely autonomous level of reality, distinct both

from empirical reality and from the purely conceptual and fictitious one:

The law creates actual and authentic realities that would not exist without it—realties, then, that

the law does not take from a world distinct from its own [...] but that belong exclusively and

originally to the law. And, in doing so, the law achieves effects that may appear [...] miraculous.

(Ibid., 209)

It seems clear that the “Foreword” and the “Afterword” to the English translation

of L’ordinamento giuridico evoke different images of Romano’s jurisprudence. Taken

together they highlight two important aspects of Romano’s jurisprudence—his in-

stitutionalism and his formalism—and implicitly raise the question of whether insti-

tutionalism and formalism can be combined and work together in a consistent way.