Maurice Hauriou’s Living Institutes: The Discovery of Sociolaw

Abstract

The paper analyzes the so-called institutional theory of the state and law, a significant role in the development of which was played by the French jurist and philosopher of law M. Hauriou. Legal institutionalism as a trend in a legal science is as fundamental as normativism or sociologism. C. Schmitt, who paid great attention to M. Hauriou’s research on public law problems, defined the direction of his French contemporary’s thought as a third way between normative and decisionist solutions to scientific and legal problems: if a normativist thinks with impersonal norms, then a decisionist sees only a personal solution that implements the law of a properly understood political situation. Thus, institutional legal thinking is deployed in structural supra-personal institutions and forms.The main provisions of the institutional theory were used in the further development of European jurisprudence. Institutions are considered as corporate, organic and instrumental formations that consolidate and fix the processes of legal formation. In this case, the state itself acquires the qualities of an institution. The problem of institutionalization is inextricably linked with the problems of state sovereignty, forms of implementation of political power, and the construction of legal systems. M. Hauriou argues with various subjectivist concepts of the state and law, insisting on the priority of an objectivist approach to the problem of state power. His approach was supported by a number of prominent jurists, whose views are considered in this paper in comparison with the basic postulates of the theory of M. Hauriou. It was this scholar, along with another outstanding jurist L. Duguit, who formed the origins of the theory of the so-called sociolaw that has become so relevant in our time.