Publication
Title
Does legal institutionalism rule out legal pluralism? Schmitts institutional theory and the problem of the concrete order
Author
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.
Language
English
Source (journal)
Utrecht law review. - Utrecht
Publication
Utrecht : 2011
ISSN
1871-515X
Volume/pages
7:2(2011), p. 42-59
Full text (open access)
UAntwerpen
Faculty/Department
Research group
Publication type
Subject
Law 
External links
VABB-SHW
Record
Identification
Creation 04.04.2013
Last edited 20.10.2014
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