Institutions of Law from a Global Perspective: Standpoint, Pluralism and Non-State Law

Abstract

This chapter looks at the 'illegitimate' version of institutionalism, whose essential traits are sketched out paradigmatically in 'Three Types of Juristic Thinking', an essay that Carl Schmitt wrote in 1934 for a specific occasion. It finds an important difference between Neil MacCormick's neo-institutionalism and traditional institutional theories of law. For Santi Romano, law takes shape by spontaneous production and is always already in effect wherever there are social relations that support it. An institution, Maurice Hauriou says, is 'a project-idea behind an undertaking that gets carried out through the law over time in a social environment. In Hauriou, institutions properly called are constitutional and representative in form, meaning that they must effect a sort of rule of law, on however small a scale. Cornelius Castoriadis understands institutions to the point of intersection of two constant movements to human sociality its 'instituting' moment and its 'instituted' one in a continuing dialectic by which meanings and forms of life fuse and crystallise.