The Legal and the Social in Romano's Institutionalism

• Published date: 01 June 2020
• DOI: http://doi.org/10.1111/raju.12290
• Date: 01 June 2020
• Author: Pablo Marshall

© (2020) John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 2 June 2020 (258–263)

The Legal and the Social in

Romano’s Institutionalism

PABLO MARSHALL

1. Introduction

Santi Romano’s The Legal Order (2017) is part of the tradition of legal institutionalism.

The first warning that must be provided in that regard is that Romano’s legal institu-

tionalism should not be confused with theories of other authors who can also be con-

sidered legal institutionalists. This includes, for example, those who are interested in

the idea that law is composed of what the philosopher John Searle (1969) called insti-

tutional facts, that is to say, facts whose meaning depends on norms (setting them in

opposition to brute facts, whose meaning does not depend on norms). The name of the

Scottish jurist Neil MacCormick (see MacCormick and Weinberger 1986) is inescap-

able when referring to this kind of legal institutionalism. Although comparisons can

be drawn between this latter kind of institutionalism and that of Romano, it is clear

that while this new version focuses on normative assembled institutions, classical

legal institutionalism considers normativity to be derivative of institutions (La Torre

2016). Nor should Romano’s institutionalism be confused with other lines of institu-

tional thought developed in the United States, which are actually methodological ap-

proaches to political science, sociology, and economics.1 These are not, then, legal

forms of institutionalism, although, as is common in the Northern American academy,

these disciplines and approaches have had an important influence in the study of law.

For the case at hand, we can understand institutionalism as a theory of law

emerged at the beginning of the 20th century and developed by a group of academ-

ics from continental Europe. We must remember that that time was tremendously

prolific for legal thought, as the consolidation of industrial capitalism, with the con-

sequent extension of the state apparatus towards the regulation of productive and

social activity, gave rise to a series of intermediate bodies between individuals and

the state, such as industrial corporations or labour unions. This constituted a call to

re-evaluate, rethink, and propose new theories and solutions for the problems gener-

ated by these new phenomena under the prevailing liberal order during the second

half of the 19th century. Among the authors who have traditionally been identified as

institutionalists are Maurice Hariou (2003) and the controversial Carl Schmitt (2004),

who at least during some period of his life moved away from his decisionism to

1 Probably the most famous example of institutional analysis, in this sense, is Acemoglu and

Robinson 2013.