First published in 1917 and 1918, with a second edition in 1946, this is the first English translation of Santi Romano's classic work, L'ordinamento giuridico. The main focus of The Legal Order is the notion of institution, which Romano considers to be both the core and distinguishing feature of law. After criticising accounts of the nature of law centred on notions of rule, coercion or authority, he offers a compelling conception, not merely of law as an institution, but of the (...) institution as 'the first, original and essential manifestation of law'. Romano advances a definition of a legal institution as any group who share rules within a bounded context: for example, a family, a firm, a factory, a prison, an association, a church, an illegal organisation, a state, the community of states, and so on. Therefore, this understanding of legal institutionalism at the same time provides a ground-breaking theory of legal pluralism whereby 'there are as many legal orders as institutions'. The acme of a jurisprudential current long overlooked in the Anglophone environment, The Legal Order not only proposes what Carl Schmitt described as a 'very significant theory', but, more importantly, it offers precious insights for a thorough rethinking of the relationship between law and society in today's world. (shrink)

This book fills a major gap in the ever-increasing secondary literature on Hannah Arendt's political thought by providing a dedicated and coherent treatment of the many, various and interesting things which Arendt had to say about law. Often obscured by more pressing or more controversial aspects of her work, Arendt nonetheless had interesting insights into Greek and Roman concepts of law, human rights, constitutional design, legislation, sovereignty, international tribunals, judicial review and much more. This book retrieves these aspects of her (...) legal philosophy for the attention of both Arendt scholars and lawyers alike. The book brings together lawyers as well as Arendt scholars drawn from a range of disciplines (philosophy, political science, international relations), who have engaged in an internal debate the dynamism of which is captured in print. Following the editors' introduction, the book is split into four Parts: Part I explores the concept of law in Arendt's thought; Part II explores legal aspects of Arendt's constitutional thought: first locating Arendt in the wider tradition of republican constitutionalism, before turning attention to the role of courts and the role of parliament in her constitutional design. In Part III Arendt's thought on international law is explored from a variety of perspectives, covering international institutions and international criminal law, as well as the theoretical foundations of international law. Part IV debates the foundations, content and meaning of Arendt's famous and influential claim that the 'right to have rights' is the one true human right. (shrink)

Even though he is mainly known for his concept of constituent power, Sieyès was one of the first constitutional theorists to ask for a guardian of the constitution which closely resembles contemporary constitutional courts. This article reconstructs the main tenets of his proposal, puts them in the larger context of his constitutional theory and then assesses the constitutional nature and functions of this institution. The judgment is mixed: as an organ, Sieyès’ constitutional jury is a hybrid institution, neither a real (...) third chamber nor a full-fledged constitutional court; however, its functions not only are a clear anticipation of the control of constitutionality, but are also intended to tame constituent power and to protect the rights of man in case of legal gaps. (shrink)

Constitutional scholarship has put much emphasis on Montesquieu's principle of separation of powers as developed in the chapter of 'The Spirit of the Laws' devoted to the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu's masterpiece. The starting point of this paper is that there is an alternative, second model of separation powers based on the French monarchy of intermediate powers, which (...) is also an instantiation of limited government. From this premise, the paper's aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is 'in between' ancient and modern, as it is exemplified by Montesquieu's take on the functioning of parliaments. As is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch's legislative rationality, and legally contains political action. (shrink)

The introduction looks at the constitutional situation in Chile since the demand for a new Constitution erupted in demonstrations all across the country, and argues that the notion of ‘constitutional moment’ is inadequate to capture the radicality of the popular mobilisation that is sweeping the country as a pure expression of constituent power.

Critical theory encapsulates the many connections between theory and praxis. This Research Handbook addresses the broad range of these connections in relation to legal thought. Featuring contributions from leading scholars of law and critical theory, the Handbook confronts the logic of the institutional with its specific challenges right across the broad field of legal thought. The Research Handbook initially addresses the question of definition, tracking the origins and development of critical legal theory along its European and North American trajectories. Thematic (...) connections are made between the development of legal theory and other currents of critical thought including feminism, Marxism, critical race theory, varieties of postmodernism, as well as the various 'turns' (ethical, aesthetic, political) of critical legal theory. Finally, particular legal disciplines are examined, including labour, criminal and intellectual property law, exploring what critical approaches reveal about them with the clear focus on opportunities for social transformation. This comprehensive and forward-looking Research Handbook will be of great interest to adherents of critical legal theory and scholars of jurisprudence more widely, as it provides a valuable analysis of the latest research and thinking in this dynamic field. (shrink)

A partire dal commento ad una sentenza sul problema della discriminazione razziale in una scuola privata, Cover presenta una teoria del pluralismo normativo fondata sulla distinzione fra autorità e significato. A tale dicotomia è dovuta la “proliferazione” dei mondi normativi e delle interpretazioni costituzionali. L’autore descrive i processi di formazione dei significati giuridici – la cosiddetta “giusgenesi” – ed offre una teoria della giurisdizione adatta ad un universo giuridico connotato da un radicale pluralismo. Così facendo, Cover intende mettere in luce (...) il potenziale trasformativo del diritto e in particolare del costituzionalismo. (shrink)

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...) to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

L’analisi degli aspetti più innovativi del pensiero di Lawrence Lessig, e in particolare la messa in luce del rapporto fra diritto ed architettura nello spazio digitale, mostra la necessità per le società contemporanee di dotarsi di una “politica” del codice.

Despite a long and venerable tradition, the material constitution almost disappeared from constitutional scholarship after the Second World War. Its marginalisation saw the rise of a normative and legalistic style in constitutional law that neglected the role of social reality and political economy. This collection not only retrieves the history and development of the concept of the material constitution, but it tests its theoretical and practical relevance in the contemporary world. With essays from a diverse range of contributors, the collection (...) demonstrates that the material constitution speaks to several pressing issues, from the significance of economic development in constitutional orders to questions of constitutional identity. Offering original analyses supported by international case studies, this book develops a new model of constitutional reality, one that informs our understanding of the world in profound ways. (shrink)

This Element aims to explore how the relation between societal organisation and legal orders – the question of materiality – has been investigated in philosophy of law. The starting point of the Element is that such relation has often been left invisible or thematised in poor and reductive terms. After having explained the main reasons behind this neglect, the Element provides an overview of the three main approaches to legal philosophy whose contributions, though not always effective, can still provide some (...) insights for a contemporary analysis of legal orders' materiality: materialism, legal institutionalism, and the new materialism. The last section of the Element suggests looking for a footing for the study of materiality in two fields: the metaphysics of relations and the political economy of legal orders. (shrink)