Andrea Salvatore

Ethical substance and the coexistence of normative orders : Carl Schmitt, Santi Romano, and critical institutionalism

Abstract This article argues for an interactional conception of law, within an institutionalist legal perspective. Through a comparison between Carl Schmitt’s and Santi Romano’s concepts of law, we underscore (in (Section 1) the relevance and the role of an ethical residue in the understanding of the relationships between the legal order and society. Although both Schmitt and Romano are to be considered as institutionalist thinkers, in that their concepts of law portray the positive norm as a product of a previous social context, their final conclusions are very different. Taking up the outcomes of such a comparison, we elucidate (in Section 2) the pivotal role of interaction within the norm-making process. In doing this, we seek to justify the four main tenets which underpin our legal conception. (a) Law is made up of a set of rules which are the conditions of possibility for durable forms of interaction. (b) A rule is a condition for the successful accomplishment of an interaction, that is to say, the condition without which the interaction would not achieve its intended aim. (c) An institution is a typified set of reiterated practices. (d) Positive law is the reflexive outlining of the effective and institutionalised rules. These steps allow us to outline the framework of a ‘critical’ institutionalism (in Sections 3–5). Critical institutionalism, we argue, is able to integrate the interactional/ institutionalist theory with the main results of the legal pluralism paradigm. It achieves this while avoiding the weakness of ‘new institutionalism’, represented especially by MacCormick and Weinberger, that it cannot explain why interactional practices come into existence and produce institutions.

The Tragic Theory of Carl Schmitt

The Winter 2010 issue of Telos has clearly highlighted the relevance of Carl Schmitts Hamlet or Hecuba to both the interpretation of Schmitts political theory and Shakespearean criticism. The main thesis concerning Schmitts intrusion into the literary field deals with the structural relationships between historical context and tragic dimension, between politics and aesthetics; the tragic drama can be properly understood only in relation to the historical context to which it refers and the concrete situation that it aims to re-present. The historical reality that can be glimpsed by focusing on the tragic masks against the light of their contexts represents…

A counter-mine that explodes silently: Romano and Schmitt on the unity of the legal order

ABSTRACT This contribution is intended to provide an answer to a controversial question: Why does Carl Schmitt – perhaps the firmest advocate of the state unity – not only mention and praise Santi Romano’s book on the legal order – a work that can be rightfully considered an uncompromising defence of legal pluralism – but even list him among his inspirers? While a given (and essentially flawed) interpretation of Romano’s institutional model, like that provided by Schmitt, actually makes his concrete-order thinking better suited to cope with the legal pluralism of modern social theory (and this is a possible answer to the opening question), it ultimately reveals the serious deficiencies of what can be defined as Schmitt’s institutional decisionism. Contrary to what Schmitt believes, indeed, Romano’s social ontology decisively contributes to demonstrate how the argument Schmitt uses in his general attack on social pluralism can also be re-deployed in its defence. Yet, Schmitt’s reappraisal of Romano’s concept of institution, questionable as it may be, addresses and tackles a crucial issue – probably, the crucial issue of both the entire book and his legal institutionalism as a whole – that Romano himself appears to be unable to solve and that still remains an open and challenging question for most social theorists.

Normality as social semantics. Schmitt, Bourdieu and the politics of the normal:

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 (which rule out alternative connections and relationships) shore up a specific vision of the social world (which rules out alternative visions). 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.