Institutionalist theories of law

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by Massimo La Torre



I.

The current of thought known as legal institutionalism finds its place within a wider “revolt against formalism” that took place beginning in the late 19th century. This is true of the “classic” institutionalism associated with Santi Romano and Maurice Hauriou. It might be also true with further qualifications of the more recent neo-institutionalist theories put forward by Ota Weinberger and Neil MacCormick.  As an anti-formalist stance, institutionalism is one of several attempts at finding a way out of a host of problems caused by a too narrow conception of law and of legal science, the one essentially equated with the command of the “political superior,” or state, the other understood as a purely logical and systematic exercise on norms and institutions. This narrow conception is legal positivism: it forestalls any recourse to strong normative (moral, political) argument and dismisses as pointless any taking into account of the social context in which legal norms are set. Opposition to this view comes from various sectors, the common theme being a concern with asserting the normative, and hence the legal value of social facts. Now, one of these sectors, and among the least radical and more epistemologically savvy, is precisely legal institutionalism.

II.

In Santi Romano we have a specific theory of institutionalism as a legal doctrine, his full account to be found in his 1917 book L’ordinamento giuridico (The legal order). There come together in it two basic tenets: the legal order is an institution, and institutions are organized social forms. This amounts to breaking with one of the two main dogmas of legal positivism, namely, the oneness of all forms of law—all of them state-sourced, or finding their single, defining form in the statute. Romano’s institutionalism therefore presents itself as a doctrine making a case for the plurality of legal orders and for their openness to society and their movements. But this much it achieves at the expense of sacrificing to a good extent the concept of norm, which finds itself set rather starkly against that of institution. Romano takes an anti-voluntarist stance on the question of the sources of law—and he might even be said to be “anti-creationist” in this respect. For him law takes shape by spontaneous production and is always already in effect wherever there are social relations that support it. “Law,” he argues, “is never the commencement of law: it is rather an accretion that builds on top of preexistent law […] or else a modification of that law.” The legislator, then, doesn’t properly create law. Another important version of institutionalism comes to us by way of the French constitutionalist Maurice Hauriou. But he only saddles Romano’s construction with three devices. First, he introduces a questionable ontology of legal objects by drawing the distinction between person-institutions and object-institutions. Second, he politicizes the notion of person-institution by making it in essence equivalent to that of representative state. Lastly, he puts forward a questionable conception of representation and develops it in a non-rationalistic sense—but this he does by introducing an interesting notion of “guiding idea.” This is a force-idea making up the foundation of each institution, and the representation afforded by the institution thereby becomes essentially an existential notion, the bearer of that idea. The upshot of a theory so framed is what will sometimes be a bluntly anti-liberal outlook. Indeed, Hauriou and his conception of representation connects up with Eric Voegelin’s theory of “authoritarian state.” The same goes for the spurious German institutionalism of the 1930s, whose most prominent exponent was Schmitt: again, Schmitt sets norms against institutions, but this time dramatizing the contraposition because, among other reasons, he sees a principle of equality inherent in the idea of norm, and equality cannot be tolerated in a radically anti-democratic line of thought such as his.

We therefore have three versions of “classic” institutionalism, two of them legitimate, so to speak, and a third one more or less “illegitimate,” meaning that its specific use in institutionalism is controversial. The first two versions, the “legitimate” ones, are the French and the Italian, as exemplified in the work of Maurice Hauriou and Santi Romano respectively. The third, and “illegitimate,” version is the Germanic one, its earliest examples to be found in moderately authoritarian authors like Rudolf Smend and Eric Voegelin, but most notably in the constitutionalist theory of Carl Schmitt, especially in the period spanning from the early 1930s to the mid-1940s, a theory that also goes by the name of konkretes Ordnungsdenken (doctrine of the concrete order). It may be a telling factor that all the authors mentioned study public and constitutional law. What this suggests is that institutionalism comes as an answer to questions that are of greatest concern to public law, such as the need to integrate people under collective structures and ensure stable interpersonal relations, and the need to secure the legitimacy of political authority. Even with these differences among the three “classic” versions of institutionalism, we can make out some shared features. In all three versions, law is found to have three basic characteristics: call them sociality, system, and plurality. Sociality means that the law is closely bound up with society, so much so that some institutionalists understand the two terms as synonymous. System means that the legal system is precisely that, a system or an order. Plurality means that the system is plural in its makeup, in that there is not any single, coherent, self-contained system of law having effect over a single territory as its “law of the land”; rather, there are believed to be, for each such territory, plural legal systems integrating one another.

The two “legitimate” theories of institutions, as was observed only a moment ago, are those by Hauriou and Romano. But still, there are important differences that intervene between them. A statement of these differences will help us have an overall picture of Hauriou’s and Romano’s theories. Hauriou understands institutions as somehow prior to law. An institution, he says, is “a project-idea behind an undertaking” that gets carried out through the law over time in a social environment. Romano, in contrast, understands law and institutions as coinciding. “Every legal system,” he says, “is an institution and, vice versa, every institution is a legal system: The equation between the two concepts is necessary and absolute.” In Hauriou, furthermore, institutions properly so called are constitutional and representative in form, meaning that they must effect a sort of rule of law, however much on a small scale. And this idea meets the zestful criticism of Romano, who sees it as mistaking description (the “scientific” task of the theoretical jurist) for prescription, the task befitting the moralist or the politician and foreign to “the science of law.” The elements constitutive of an institution, on Hauriou’s conception, are its giving course to an idea of social action, its using to this end an organized power, and the fact of that idea finding widespread acceptance in society. Romano, instead, sees these elements as encapsulated in a plurality of subjects, in the organization that binds them together, and in a power to regulate by which the organization expresses itself. Hauriou operates under the influence of Bergson’s vitalism, and his theory is therefore sometimes cast as a political philosophy; Romano is deeply entrenched in the legal-positivist tradition, and his influence, if we have to pin it down, is that of Otto von Gierke’s Genossenschaftstheorie: He quite spills over into sociology. Thus, Hauriou makes the ideal moment the decisive moment and, further, he cannot welcome just any “project-idea” as the institution’s normative core, but only that idea which expresses the principles underlying the rule of law and political representation. Romano is more realistic—more cynical, by another name—and so counts even the mafia as an institution: What matters, for something to qualify as such, is how organized it is, how developed, and how effective in doing what it does.

Let us look now at the “illegitimate” version of institutionalism, whose essential traits are sketched out paradigmatically in Über die drei Arten des rechtswissenschaftlichen Denkens (Three types of juristic thinking), an essay that Schmitt wrote in 1934 for a specific occasion. Here we find institutions set in stark opposition to norms and made to agree, instead, with the notion of “decision.” The institution fleshed out in the konkretes Ordnungsdenken is an organic community not founded on any convention, with different people finding themselves set within a single whole that they cannot transcend, a community whose regulation is inherent: the organism regulates itself and so does not necessitate norms (in the sense of abstract and general norms); rather, it comes through in the concrete vital manifestations that transpire among its members, and it comes through as well, or rather in the first instance, in the decisions of individuals who enjoy a privileged connection with the community. An institutionalism so framed rejects normativism: it is leery of conventional rules, understood as provisions that can be universalized (albeit only within the scope of single legal categories), and it is also leery of explicit reasons for action, insofar as these can become an object of reflection on the part of individuals. Schmitt, then, uses institutionalism as an ideology with which to justify decisionism—the final outcome and practical import of his konkretes Ordnungsdenken. Of course neither Hauriou nor Romano are decisionists; and further, Romano somehow defends a normativist perspective, and does not set against it the institutionalist perspective dramatizing their differences, in the way Schmitt instead does. “Legitimate” institutionalism remains harnessed to a rationalistic conception of the world, and one that in Hauriou is still in certain respects an Enlightenment conception. Not so in Schmitt, whose unifying theme is anti-Enlightenment, irrationalist, and anti-liberal.

III.

Quite other is the neo-institutionalism developed by Ota Weinberger and Neil MacCormick, which proceeds not so much from anti-formalism, as from ordinary-language philosophy and from the idea of “institutional facts.” The basic difference, with respect to the first kind of institutionalism, is that here we see the notion of norm fully recovered. Legal neo-institutionalism results from the merging of two traditions of thought: analytical jurisprudence, as renewed in the work of H. L. A. Hart (of whom MacCormick has been a student), and the pure theory of law, in the critical and heterodox version of it developed by the Czech-born Frantisek Weyr, a close friend of Kelsen (who dedicated to him the book Der soziologische und der juristische Staatsbegriff) and a professor at the School of Legal Sciences in Brno (where Weinberger took his degree). Despite some differences, some of them significant, in the way MacCormick and Weinberger approach neo-institutionalism, there are features common to both. There is in the first place an anti-reductionist attitude that both of them take. This attitude is manifest in the ontology the two authors put forward: Neither understands social reality to be completely reducible to the material reality of space and time (as the Scandinavian realists did before them, following in the lead of Olivecrona), and a distinction is drawn between “brute facts” on the one hand and “institutional facts” on the other (taking up a suggestion of the philosopher John Searle). So, too, law does not find itself reduced to the norms that make it up, however much in the manner of a system; rather, it is thought that in working out a concept of law we need to take additional elements into account, such as the spheres of action enabled by norms and the principles of action expressed in a given social context: these are the elements from which those norms draw inspiration and which guide their application. Further, in neither author are norms viewed in an obsessively prescriptive manner, as acting only to restrict spheres of action: norms, on this view, not only restrict but also on occasion expand spheres of action. As MacCormick puts it, institutions—contract, property, matrimony, and the like—enable us to increase the number of facts existing in the world without necessarily increasing the number of objects physically present among us.

But neo-institutionalism is also and especially a methodological anti-reductionism, in that legal concepts cannot, on this view, be reduced to the structures designed to represent norms and prescriptions: they cannot be reduced to instruments placed in the hands of the dogmatist, as the realists à la Ross would have it. There are other features of neo-institutionalism common to MacCormick and Weinberger. One of them is its anti-prescriptivism, which says that norms cannot be explained as immediate imperatives, commands, or prescriptions. Another one is its moderate legal-positivist stance, whereby law, though conceived as the product of human will, rather than as an entity unsusceptible of any design or purposive intervention, will admit of the possibility of norms not expressly laid down by the legislator. And still another feature, despite some reservations expressed by MacCormick in this regard, seems to be a metaethical non-cognitivism: we can attain a knowledge of law (once its constituent norms have been set forth) but not a knowledge of morality (understood as critical morality), and the two spheres, law and morality, will accordingly have to be kept in clear distinction.
If we draw a comparison with “classic” institutionalism, neo-institutionalism will prove much more methodologically refined. Even so, noteworthy affinities do exist between the two versions. Thus, Romano would resist ontological reductionism as much as he would methodological reductionism; he would welcome without too much hesitation a non-prescriptivist view of law; and he would not shrink from upholding the separation of law and morality. So he, too, can easily be described as a moderate legal positivist. But then, again, there also intervene important differences, at least two of them.

MacCormick and Weinberger both understand “institution” as equivalent to “institutional fact.” Romano, instead, understands it as equivalent to “society.” (Of course not every institutional fact constitutes a society: witness the example of a contract.) So, too, Romano, at one point in the course of his theoretical exploration, attempts to reduce the ought (the validity of norms) to the is (to their efficacy)—not so neo-institutionalism, which maintains an unequivocal distinction between the two categories, even if at the expense of incurring obscurities and ambiguities, a few too many in fact: How, for instance, can one accept the idea of institutional fact without at the same time taking on board the idea of constitutive norm, so controverted by Weinberger?
In the end, the “classic” institutionalism of Romano, however philosophically less refined, would seem to have the better of the more recent institutionalist theories when it comes to coherence. But then coherence does not necessarily make a theory any more compelling than it would otherwise be: an uninformative theory will be none the better for being coherent. And it is precisely from the incoherencies and tensions inherent in neo-institutionalism that we can learn an extra something about the concept and the pragmatics of law. Consider, for example, the tension between what in essence amounts to a fully prescriptivist notion of legal norm and its conceptualization within the framework of institutional facts; or again, consider upholding a simple two-factor semantics (descriptive versus prescriptive) and taking up at the same time a “liberal” ontology, such as will accommodate, for example, institutions and institutional facts.

IV.

The notion of institution is in certain respects a “compromised” notion, in that it carries implicit and concrete normative assumptions. Also “compromised” is its history, a history none too simple or merely conceptual. In one sense of institution—a non-theoretical sense—the notion is assumed to be equivalent to that of organization, authority, or power. On this assumption, the expression public institution may well be taken to mean “public power.” In another sense, a specific sense framed within legal theory, an institution is understood as an Anstalt, this being a fundamental concept in the legal-philosophical thought of Friedrich Julius Stahl. The concept was developed as an alternative to that of free association, expressive of the will of the people in a community or body politic, and it idealizes the medieval guild, understood as the authentic, immediate, non-reflexive expression of the social fabric. Anstalt is language, spontaneous construction, the product of human activity but not of human design: it is the paradigmatic model for this concept. The institution of which Anstalt might be the German translation is therefore conceived from the outset in contraposition to the sphere of voluntary relations and to deliberation, and also to the notion of norms as the manifestation of a will, an intentional and reflexive purpose. But it is only with Santi Romano and Maurice Hauriou that the notion of institution becomes explicitly and specifically relevant in legal theory, so much so that they use it to bring out the very concept of law. An institution, says Romano, is “any entity or body having a stable and permanent framework and forming a body in itself, with a life of its own.”

On this definition, an institution looks very much like a community, and therefore finds its theoretical antithesis in the notion of an individual. It carries an anti-individualistic normative conception by implying an ontological primacy of the community over the individual, and in Romano’s formulation it also implies a separation of law and morality, with law pertaining to the sphere of community, and morality to the subordinate sphere of individuals and subjectivity. The same theoretical scheme frames the notion of institution in the definition of it offered by Maurice Hauriou: an institution is “the idea that stands behind an effort or undertaking and is carried through and lasts under the law in a social environment.” For Hauriou, who distinguishes between “people-institutions” and “object-institutions,” even norms are institutions (they are “object-institutions”). This institutionalist reductionism is driven by a communitarian engine that grows ever more powerful, beginning with the Thomistic radicalization of Hauriou’s doctrine that we find in the French scholar George Renard, all the way to the raving aggrandizement the notion of institution goes through in German legal philosophy at the hands of scholars like Carl Schmitt, Karl Larenz, and Arnold Gehlen. For Schmitt and Larenz, law is an institution understood as Selbstgestaltung: as the community’s self-formation. For Gehlen, even the individual is an institution!

It is a different series of reflections that leads to the notion of institution such as it takes shape in neo-institutionalism—not only legal but also political neo-institutionalism. In fact, even in political science there has been, in a more recent past, a renewed interest in the notion of institution, no longer studied from the merely behavioural perspective informed by the myth of an idealized homo oeconomicus. From legal neo-institutionalism we get a notion of institution based on that of “institutional fact,” only it is a more advanced notion of “institutional fact” understood as pertaining to the sphere of constitutive rules and as resulting from such rules. From the neo-institutionalism of political science, which finds two effective defenders in James G. March and Johan P. Olsen, we instead have a reaction against the reductionism proper to decision theory and to the methodological individualism of empiricist origin. Also important is the theory of institutions developed by Cornelius Castoriadis (he died in Paris in 1997). For him an institution designates in the first instance human social reality at large, and the law can be said to be only a “second institution.” Castoriadis understands institutions to be the point of intersection of two constant movements proper to human sociality—its “instituting” moment and its “instituted” one—in a continuing dialectic by which meanings and forms of life fuse and crystallize. Castoriadis’s theory is underpinned by an articulate and refined metaphysic and could serve to impart philosophical direction to the research project carried on by legal institutionalism, a project that has so far proved rather ambiguous in its attempt to free itself of the dogmas of neo-empiricism and positivism.

Select Bibliography

S. Romano, L'ordinamento giuridico, 3rd ed., Florence 1977.

M. Hauriou, Précis de droit constitutionnel, 2nd ed., Paris 1925.

M. Hauriou, Aux sources du droit: Le pouvoir, l'ordre, et la liberté, Paris 1933.

C. Schmitt, Die drei Arten des rechtswissenschaftlichen Denkens, Hamburg 1936.

Santi Romano, Frammenti di un dizionario giuridico, 2nd ed., Milan 1983.

C. Castoriadis, L'institution imaginaire de la société, Paris 1974.

N. MacCormick, O. Weinberger, An Institutional Theory of Law, Dordrecht 1986.

O. Weinberger, Norm und Institution, Vienna 1988.

Ota Weinberger, Law, Institution, and Legal Politics, Deventer 1991.

Massimo La Torre, "Institutionalism Old and New", in Ratio Juris, 1993, vol. 6, pp. 190–201.

J. G. March, J. P. Olsen, Institutional Perspectives on Political Institutions, Oslo 1996.

M. La Torre, Norme, istituzioni, valori, 2nd ed., Rome–Bari 2002.

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