Mariano Croce and Marco Goldoni
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9781503612112
- eISBN:
- 9781503613126
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9781503612112.003.0005
- Subject:
- Law, Legal History
Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the ...
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Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.Less
Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.
Mariano Croce and Marco Goldoni
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9781503612112
- eISBN:
- 9781503613126
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9781503612112.001.0001
- Subject:
- Law, Legal History
Book Abstract: How should the state face the challenge of radical pluralism? How could constitutional orders be changed when they prove unable to regulate society? Santi Romano, Carl Schmitt, and ...
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Book Abstract: How should the state face the challenge of radical pluralism? How could constitutional orders be changed when they prove unable to regulate society? Santi Romano, Carl Schmitt, and Costantino Mortati, the leading figures of Continental legal institutionalism, provided three responses that deserve our full attention today. Mariano Croce and Marco Goldoni introduce and analyze these three towering figures for a modern audience. Romano thought pluralism to be an inherent feature of legality and envisaged a far-reaching reform of the state for it to be a platform of negotiation between autonomous normative regimes. Schmitt believed pluralism to be a dangerous deviation that should be curbed through the juridical exclusion of alternative institutional formations. Mortati held an idea of the constitution as the outcome of a basic agreement among hegemonic forces that should shape a shared form of life.
The Legacy of Pluralism explores the convergences and divergences of these towering jurists to take stock of their ground-breaking analyses of the origin of the legal order and to show how these help us cope with the current crisis of national constitutional systems.Less
Book Abstract: How should the state face the challenge of radical pluralism? How could constitutional orders be changed when they prove unable to regulate society? Santi Romano, Carl Schmitt, and Costantino Mortati, the leading figures of Continental legal institutionalism, provided three responses that deserve our full attention today. Mariano Croce and Marco Goldoni introduce and analyze these three towering figures for a modern audience. Romano thought pluralism to be an inherent feature of legality and envisaged a far-reaching reform of the state for it to be a platform of negotiation between autonomous normative regimes. Schmitt believed pluralism to be a dangerous deviation that should be curbed through the juridical exclusion of alternative institutional formations. Mortati held an idea of the constitution as the outcome of a basic agreement among hegemonic forces that should shape a shared form of life.
The Legacy of Pluralism explores the convergences and divergences of these towering jurists to take stock of their ground-breaking analyses of the origin of the legal order and to show how these help us cope with the current crisis of national constitutional systems.
Mariano Croce and Marco Goldoni
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9781503612112
- eISBN:
- 9781503613126
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9781503612112.003.0007
- Subject:
- Law, Legal History
Chapter abstract: This conclusion offers a brief summary of the main findings of the book. The central concerns of these legal institutionalists—namely, how nomic force molds social relations and the ...
More
Chapter abstract: This conclusion offers a brief summary of the main findings of the book. The central concerns of these legal institutionalists—namely, how nomic force molds social relations and the role of legal science in this process—are recapitulated. In the other part of the Conclusions, the emphasis is placed on the relevance of these approaches to law for the contemporary debate, with a focus on the issues caused by globalization and the proliferation of legal orders at different levels. A brief comparison with the methodology adopted by global administrative law, global legal pluralism, and constitutional pluralism is proposed as an illustration of the rich contribution Romano, Schmitt, and Mortati can make to the understanding of the present.Less
Chapter abstract: This conclusion offers a brief summary of the main findings of the book. The central concerns of these legal institutionalists—namely, how nomic force molds social relations and the role of legal science in this process—are recapitulated. In the other part of the Conclusions, the emphasis is placed on the relevance of these approaches to law for the contemporary debate, with a focus on the issues caused by globalization and the proliferation of legal orders at different levels. A brief comparison with the methodology adopted by global administrative law, global legal pluralism, and constitutional pluralism is proposed as an illustration of the rich contribution Romano, Schmitt, and Mortati can make to the understanding of the present.
