Ethical Substance and the Coexistence of Normative Orders: Carl Schmitt, Santi Romano, and Critical Institutionalism

This article argues for an interactional conception of law, within an institutionalist legal perspective. Through a comparison between Carl Schmitt’s and Santi Romano’s concepts of law, we underscore (in (Section 1) the relevance and the role of an ethical residue in the understanding of the relationships between the legal order and society. Although both Schmitt and Romano are to be considered as institutionalist thinkers, in that their concepts of law portray the positive norm as a product of a previous social context, their final conclusions are very different. Taking up the outcomes of such a comparison, we elucidate (in Section 2) the pivotal role of interaction within the norm-making process. In doing this, we seek to justify the four main tenets which underpin our legal conception. (a) Law is made up of a set of rules which are the conditions of possibility for durable forms of interaction. (b) A rule is a condition for the successful accomplishment of an interaction, that is to say, the condition without which the interaction would not achieve its intended aim. (c) An institution is a typified set of reiterated practices. (d) Positive law is the reflexive outlining of the effective and institutionalised rules. These steps allow us to outline the framework of a ‘critical’ institutionalism (in Sections 3-5). Critical institutionalism, we argue, is able to integrate the interactional/ institutionalist theory with the main results of the legal pluralism paradigm. It achieves this while avoiding the weakness of ‘new institutionalism’, represented especially by MacCormick and Weinberger, that it cannot explain why interactional practices come into existence and produce institutions.