Title
Does legal institutionalism rule out legal pluralism? Schmitts institutional theory and the problem of the concrete order Does legal institutionalism rule out legal pluralism? Schmitts institutional theory and the problem of the concrete order
Author
Faculty/Department
Faculty of Law
Publication type
article
Publication
Utrecht ,
Subject
Law
Source (journal)
Utrecht law review. - Utrecht
Volume/pages
7(2011) :2 , p. 42-59
ISSN
1871-515X
vabb
c:vabb:328624
Carrier
E
Target language
English (eng)
Abstract
The present paper explores the background of the institutional perspective of law that Carl Schmitt develops in On The Three Types of Juristic Thought (1934), and draws a comparison between this view and the institutional theory of Santi Romano (explicitly recalled by Schmitt). In doing so, I will shed some light on the complex relation between law and pluralism. While Schmitt portrays the law as a political means for preserving identity and excluding diversity within a homogeneous community, Romano depicts law as a form of organisation which inevitably reflects the plurality of social life. To this end, I will attend to some crucial problems of social and legal theory, such as the relation between norms and normality, the role of institutions in human life, and the way the law affects and is affected by the dynamics of its social surroundings. My final goal is to show that the law does not exclude pluralism at all, but is in itself a plural phenomenon.
Full text (open access)
https://repository.uantwerpen.be/docman/irua/4141e9/e0d45fd3.pdf
Handle