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)

The bumpy road to institutionalism : Schmitt's way-out of decisionism -- Exploring Schmitt's institutionalism : institutions and normality -- Institutionalist decisionism : law as the shelter of society -- Institution and identity : reassessing Schmitt's political theory -- Schmitt vs. Kelsen : the social ontology of legal life -- Schmitt vs. Hauriou : the politicization of institutionalism -- Schmitt vs. Romano : institutionalism without pluralism? -- Schmitt vs. Mortati : the concretization of the concrete order -- The impossibility of legal (...) indeterminacy -- The inconceivability of legal pluralism. (shrink)

This article deals with the issue of resignification to advance a hypothesis on the way in which social practices are transformed with recourse to the language of institutions. It first discusses the transition from gay liberation to same-sex marriage equality by exploring the trajectory of homosexuals’ rights claims. The article continues by providing a theoretical interpretation of what brought this shift about, that is, what the author calls a movement ‘from the street to the court’: in both civil law and (...) common law jurisdictions, legal means are increasingly being used by individuals and groups to make their claims audible to political institutions and to society at large. Then, an analysis is offered of the shape that social struggles take when socio-political claims are articulated with recourse to the legal language. The conclusion is that reliance on the law as a device to achieve political goals and construct same-sex group identity risks producing but a feeble resignification of the conventional heterosexual matrix. In light of that, a more effective way to defy this matrix is to create awareness of what is gained and what gets lost in becoming legally visible. (shrink)

In this article I contend that the re-emergence of religion in Western liberal states is a feature of a much broader phenomenon, namely, the re-establishment of legal pluralism whereby various social actors claim to be the legitimate producers of their own law. To prove this, I first offer an account of secularization as the successful attempt of modern states to dismantle a legal-pluralist system. Based on this, I argue that the reviviscence of religions is the reviviscence of their practical side: (...) religious practices tend to be perceived by religious group members as providing guidance for conduct, one that challenges the rules of the state legal order and its monistic structure. Finally, by exploring the issue of same-sex union recognition, I defend the claim that, in a truly post-secular society, the state should allow a multiplicity of relationship-recognition models that reflect and meet different interests and needs. (shrink)

This article centres on the legal recognition of same-sex marriage with a view to exploring the issue of unspeakability; that is, the condition whereby some questions cannot be articulated because of a lack of words. More specifically, the article will explore what happens to those social practices that are not given legal speakability and thereby legal recognition/protection. To this end, I first focus on how words are produced in the sphere of everyday life and their dependence on the existence of (...) a widespread normality. I then discuss how the law sees to the preservation and the reproduction of normality by providing a set of categories which are made available to law-abiders to settle disputes when they arise. In doing so, I elucidate the twofold role played by law as both a selective and a creative device. To cast some light on the particular way law operates, I discuss an important decision by the Italian Constitutional Court in 2010, which provides a telling example of how legal officials are able to seal off the set of legal categories and to leave some issues in the sphere of the unspeakable. I then unearth a paradox: while unspeakability reveals a condition of powerlessness, the acquisition of speakability could bring about even harsher exclusionary effects. I conclude by arguing that the entry into the sphere of official law is always a Janus-faced achievement, but can play as an effective instrument of critique. (shrink)

Queer critics talk more and more about a normalization process whereby early lesbian and gay struggles against traditional values and institutions are being replaced by the pursuit of inclusion within mainstream society. The ‘assimilation’ of same-sex practices, critics contend, lowers the critical potential of homosexuals’ claims and marginalizes other less acceptable forms of sexualities. The present article contributes to this literature by tracing the roots and dynamics of normalization. It makes the claim that heteronormative categories infiltrated homosexual culture well before (...) the spread of neoconservative gay movements and produced inner distinctions intended to exclude those who did not fit intergroup classifications. It then maintains that this analysis casts some interesting light on the current quest for gay rights, and in particular for same-sex marriage. By doing so, this article aims to tackle the broader question of how to produce societal changes able to circumvent rearguard reactions from the dominant culture. (shrink)

Emergency and exception are central concepts in Schmitt’s theory of decisionism. The present article explores the distinction between the two by focusing on their emergence, i.e. the process by which in times of crisis a potentially alternative or-der comes into existence and becomes visible. The primary aim of the comparison is to provide a more detailed and less conventional account of Schmitt’s excep-tionalist decisionism. In order to achieve this aim, three relevant questions must be raised: How does the sovereign succeed (...) in gaining acceptance, by exploiting what situation, and by convincing whom? Based on the different answers provid-ed by Schmitt over the years, it is possible to distinguish three different phases of his thought: the sovereign decisionism of the early 1920s, the concrete-order thinking of the 1930s, and the jurisprudential institutionalism advanced from 1950s onwards. (shrink)

What is it that determines the identity of an entity? Processualism is a theoretical perspective that offers a startling answer to this question. The identity of an entity—whether human or nonhuman, animate or inanimate—depends on the set of relations in which this entity is located. And as the sets of relations are several, so are the identities that an entity can take. This article discusses this conclusion by integrating processual accounts from different fields of inquiry, such as relativistic physics and (...) actor-network theory. According to a processual interpretation of relativistic physics, speaking of states of things is but an abstraction. For states come from the introduction of arbitrary breakups of the spacetime continuum. Therefore, processes precede states, a process being a set of relations that confers identity on a physical state. According to a processual interpretation of actor-network theory, the same holds true for actors. Again, speaking of states of actors is but an abstraction. For what really acts is heterogeneous networks. When one describes actors in isolation, one is neglecting a whole array of relations with other actors whereby that actor can act or is made to act in such and such a way. These strands of processualism come to the same conclusion as to the identity of entities. These are not characterized by individuality but by individuality: they can be differently individuated according to the set of relations one is able to take into account. The main methodological consequence is that, if one intends to describe what an entity is, knowledge of this entity—whether human or nonhuman, animate or inanimate—should be based on progressively less narrow localizations and mappings of the relations it has to other entities. (shrink)

It is somewhat ironic that this book comes out in the centenary of Political Theology, first published in 1922. In the end, one of the main claims we shall make here is that Carl Schmitt's celebrated essay has been unduly overemphasised and that it formulated a theory of law and a conception of normality that he himself dismantled a few years after its publication. A related claim will be that interpretations that identify a connection between Political Theology and successive works (...) such as The Concept of the Political and Constitutional Theory are wrong in at least one important respect: through those works, Schmitt tried to pull himself out of the quagmire in which he was bogged down in 1922, viz., the problematic conception that we shall dub "exceptionalist decisionism." But we shall have to go further. Works that are coeval with Political Theology, such as Dictatorship and Roman Catholicism and Political Form, offer much leeway for criticising exceptionalist decisionism, either because the notions of exception and decision are thinner and more tenable, or because there is no room at all for any of them. In sum, as a celebration of Political Theology, this book cuts a poor figure. (shrink)

Undoing Ties: Political Philosophy at the Waning of the State is a comprehensive overview of the most significant theories and contributions in the field of political philosophy of the last three decades. It is a journey through contemporary political philosophy that puts forward a basic interpretative hypothesis. Mariano Croce and Andrea Salvatore analyse the theories and proposals of many prominent political philosophers and attempt to arrive at the conclusion that today's politics is characterised by a striking reviviscence of groups (whether (...) ethnic, religious, financial, or else) which is profoundly impacting on the role of traditional political institutions, and on the state in particular. Political philosophers discussed include Giorgio Agamben, Zygmunt Bauman, Mark Goodale, Martha Nussbaum, Charles Taylor, Slavoj Žižek and many others. Undoing Ties also devotes attention to elements that are crucial to a sound analysis of contemporary politics, both at a national and at a global level, such as the law and the transformation of the legal practice and a socio-anthropological analysis of globalisation. It is an exhaustive picture of the debates and discussions in the field of political philosophy in a captivating way, which leads the reader to an informed global understanding of the field, but also to reflect on some vital issues that directly affect their everyday life. (shrink)

Philosophy & Social Criticism, Volume 47, Issue 9, Page 1025-1042, November 2021. In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Against this view, I argue that this trend – which some scholars call ‘juridification’ – can be key to giving life to new forms of politics. First, I show why juridification is a political more than a legal (...) process. Second, I illustrate recent critiques of the dangers inherent in the particular type of juridification that involves the growing use of rights. Third, while concurring with these critiques, I make the case that other facets of juridification are often underrated that can ignite a novel kind of politics. On this account, I go on by elaborating on the idea of self-organization of social groups vis-à-vis the state that is entailed in this notion of politics. Finally, I discuss the recognition of non-conventional family networks to exemplify how a politics of juridification could work. The conclusion is that, while juridification calls for a thorough revision of the tasks of politics, it does not thwart it. Rather, traditional representative politics could and should take stock of how it involves social actors in the creation of new bodies of regulation. (shrink)

ABSTRACT Carl Schmitt is generally considered as the father of exceptionalism – the theory that the heart of politics lies in the sovereign power to issue emergency measures that suspend everyday normality. This is why his name comes up anytime state governments, whether liberal or not, impose limits on constitutional rights and freedoms to cope with emergencies. This article problematises such a received understanding. It argues that Schmitt held an exceptionalist view for a limited period of time and that even (...) in that period his thinking cannot be regarded as unshakably exceptionalist. This interpretation offers a new entry point to Schmitt’s overall theory. While it can hardly be defended from allegations of reactionary conservatism, it remains a juristic theory of the legal order that tries to answer the question of what ensures the stability of social life. The backdrop of this view is an institutional theory of law and politics that is hardly reconcilable with any form of exceptionalism. In this light, the core of Schmitt’s thinking turns out to be the exaltation of legal science as a jurisgenerative practice that shelters a community’s institutional practices and the traditional identity. (shrink)

In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Aga...

ABSTRACTThis article offers an unconventional interpretation of Carl Schmitt’s conception of the political. It first identifies two alternative readings – an ‘exceptionalist’ and a ‘concretist’ one – to make the claim that in the late 1920s he laid the foundations for a theory of politics that overcame the flaws of his theory of exception. It then explains why the concretist reading provides an insightful key to Schmitt’s take on the relationship between politics and law as a whole. Despite this, the (...) chief aim of this analysis is not interpretive. Rather, the article claims that such a paradigm change was related to Schmitt’s pondering on the elements that were menacing to draw the experience of modern statehood to an end even more seriously than any upheavals and revolutions. For he came to the conclusion that the mere claim to political self-sufficiency on the part on non-state social entities was able to defy the idea of the state as the political entity par excellence. While these reflections urged Schmitt to reformulate many features of his conception of the political, the article contends that this particular juncture in his production sheds light on a crucial feature of contemporary politics. (shrink)

This article takes issue with the practical and the cognitive roles of normality within political life and its relevance to the constitution of the groups that comprise a political community. From a practical viewpoint, normality fosters standards of correctness; from a cognitive viewpoint, these standards are what allows individuals to perceive themselves, and to be recognized, as group members. To achieve this aim, the article delves into Carl Schmitt’s and Pierre Bourdieu’s accounts of how politics is a field where semantic (...) struggles take place that are meant to impose alternative visions of the social world. Different types of connections and relationships among individuals and groups shore up a specific vision of the social world. The article concludes by saying that awareness of the normalizing effects of politics is key to producing a counter-politics meant to defy the naturalization and de-historicization that every political representation furthers. (shrink)

This article problematizes the recent comeback of the exceptionalist jargon as it is conjured by both critics and sympathizers. While in the last decades governments across the globe had recourse to emergency measures to cope with far-reaching emergencies, from terrorism to the COVID-19 pandemic, the received view has it that political power takes advantage of states of emergency as they put themselves in the position to circumvent constitutional limitations. Carl Schmitt is claimed to be the major advocate of this conception (...) of emergency politics in that he elaborated on the concept of the state of exception as the heart of the state political power. This article contends that the received view is doubly wrong. First, soon after his espousal of exceptionalism, Schmitt realized that emergency legislation is an ineffective and costly governmental device that should be transitory and is as unstable as the crisis it is meant to overcome. Second, the received view neglects how Schmitt came to his model of ultraconservative substantive constitutionalism as he maintained that the main task of politics is to protect the normative life of a limited set of state-sponsored institutions as well as the substantive contents they produce. (shrink)