Santi Romano before legal institutionalism: the order above and beyond positive law

All those who lend themselves to the study of Santi Romano’s jur¬isprudence and intellectual legacy are required to perform a sort of initiation ritual, something that readers will find in almost all texts about him. Romano scholars somewhat feel a compulsion to take sides on the vexed question of how genuine his legal pluralism was, and conversely, how much he remained loyal to a picture of legal reality where the state still hovers over all other legal and non-legal entities. A particular step in this ritual is the conjuring of Norberto Bobbio’s self-reassuring sentence that ‘Romano was a pluralist from a theoretical standpoint, but a monist from an ideological one.’1 In the face of it, interpreters part ways. Those who advocate Romano’s innovative view of legal reality as one that includes but is not dominated by the state confront those who draw attention to his intermittent opinion that the state is and should remain the fundamental legal entity, one that can include others but should never cease to be the institution of, rather than among, institutions. As we will see, the two essays translated in this book nicely expose such a seeming contradiction. At some junc¬tures, Romano appears to be utterly prepared to do away, if not with the state, with its normative pre-eminence. Yet, at other junctures, he is adamant that the state is the platform on which other normative entities can negotiate the terms of their coexistence. There is no need for quotations here, as I will get back to the issue time and again in this introductory writing.