The Legal Order (Law and Politics)

Cover
Title
Copyright
Contents
Editor’s acknowledgements
Santi Romano and the institutional theory of law
Translator’s note
Preface
Chapter 1
	§ 1. The law commonly conceived as a norm: deficiency of this conception.
	§ 2. On some general hints of this deficiency, and in particular those evinced by the likely origin of the current definitions of law.
	§ 3. The need to distinguish the distinct legal norms from the legal order considered as a whole. The logical impossibility of defining the legal order as a set of norms.
	§ 4. How the unity of a legal order has been sometimes intuited.
	§ 5. How a legal order is not only a set of norms, as it also encompasses other elements.
	§ 6. How such elements are implicitly postulated by the common inquiry into the distinguishing characteristics of law.
	§ 7. Assessment, from this point of view, of the so-called objectivity of law.
	§ 8. The element of sanction.
	§ 9. The expression ‘legal order’.
	§ 10. The essential elements of the concept of law. The law as an institution and the law as a precept.
	§ 11. The preceding doctrine on the concept of institution.
	§ 12. My concept of institution and its fundamental characteristics
		1. The objective existence of the institution
		2. Institution and social body
		3. The institution’s selfness
		4. The unity of the institution.
	§ 13. Equivalence of the concept of institution and the concept of a legal order.
	§ 14. Evidence for this equivalence based on the doctrine that the law is only ‘form’.
	§ 15. Mention of some problems that need solving in the light of this equivalence.
	§ 16. Cases in which the original establishment of a law does not depend on norms, but on the emergence of an institution, and the impossibility of reducing the institution to norms.
	§ 17. The concept of institution and the international legal order.
	§ 18. The institution and the legal relationship: relationships between more persons.
	§ 19. Relationships between persons and things: examples of some of these relationships that, considered more broadly, can be portrayed as institutions.
	§ 20. The institution and the legal person.
	§ 21. My conception of the law with respect to certain problems relating to
		1. The legal character of state power
		2. The extension of the state personality
		3. The legal relevance of its territory and citizenry.
	§ 22. Critical assessment of some opinions that attach importance to the legal order only insofar as it reflects relationships between persons. Applications to
		1. The legal sanction
		2. The state territory and citizenry
		3. The state bodies
		4. The limits of the legislative function.
	§ 23. Some consequences of my conception with regard to the subjective aspect of the law: the legal relationship; the status of persons; rights in rem ; the correlation between rights and obligations; the subjects’ position of equality or inequality.
	§ 24. Recapitulatory remarks.
Chapter 2
	§ 25. The plurality of legal orders and the doctrine that reduces all law to state law.
	§ 26. The untenability of this doctrine from a historical and theoretical point of view.
	§ 27. Its untenability with respect to the existing law.
	§ 28. Non-state legal orders; international law.
	§ 29. Ecclesiastical law.
	§ 30. The order of entities that are considered unlawful or are ignored by the state.
	§ 31. Entities that are regulated by the state, but also have an order of their own that is not recognized by the state (private disciplinary orders; the internal organization of workplaces; so-called unrecognized associations or institutions, etc.).
	§ 32. Doctrines that confine the concept of a legal order to the order of communities in general and specifically to necessary communities.
	§ 33. The relations between different legal orders. Principles that have to be taken into account with respect to
		1. Original or derivative institutions
		2. The particular or general ends of institutions
		3. Their diverse basis
		4. Simple or complex institutions
		5. Perfect or imperfect ones
		6. With or without personality ones
		7. Independent, coordinated or subordinated ones.
	§ 34. The concept of relevance of one order to another.
	§ 35. The title for this relevance:
		a. The relation of superiority and correlative dependence between two orders
		b. The relation whereby an order presupposes another
		c. The relation whereby reciprocally independent orders depend on a further one
		d. The relevance unilaterally attributed by an order to another on which it does not depend
		e. The relation of succession between orders.
	§ 36. Diverse aspects (existence, content, effectiveness) expressing the relevance of an order to another one. Cases in which the existence of an order depends on another
		a. Complete subordination of the former to the latter that directly establishes the former or assigns limited autonomy to it. Independence, as far as its existence is concerned, of an order in case of a less expansive subordination (some spheres of the order of the member states of a federal state vis-à-vis the latter; the order of states vis-à-vis international law) and general principles
	§ 37. b. In the hypothesis of an order that represents the presupposition of another (state law vis-à-vis international law).
	§ 38. The relevance of an order to another with respect to its content. Various cases
		a. The superior order as the mediated or unmediated source of an inferior order; the superior order (international law, ecclesiastical concordats) that is not the source, and yet affects the content of inferior orders
	§ 39. b. The superior order that effects the content of more orders subjected to, which however are independent from each other
	§ 40. c. The order that determines its own content by considering a subjected or independent order: private international law; ecclesiastical law as it refers to civil laws; the law of the state; that refers to ecclesiastical law
	§ 41. d. An order that incorporates another.
	§ 42. The relevance of an order to another with respect to its effects: external and internal effectiveness of an order. Various cases of external effectiveness
		a. The relationships between orders where the one partially or totally depends on the other
		b. Relationships between more orders that are independent from each other because of a unilateral disposition of one or each of them. Private international law; civil effectiveness of ecclesiastical law
		c. Relationships meeting more orders in which one is of the presupposition of the other
		d. Relationships between orders that succeed each other.
	§ 43. Diverse extension of the relevance of an order to another. Applications with regard to the problem of so-called natural obligations.
	§ 44. The irrelevance of an order to another; total or partial, reciprocal or unilateral.
	§ 45. A legal order that as such is irrelevant to another; but is relevant in other respects (orders that are considered unlawful by the state; industrial organizations, de facto institutions).
	§ 46. Total irrelevance of an order to another: possibility of such an irrelevance also with respect to the order of the state.
	§ 47. Critical assessment of the opposite doctrine. The limitations of the state order; various figures and consequences; examples of matters that are legally indifferent to the state (private disciplinary orders; particular religious orders; the orders of some non-patrimonial associations; etc.).
	§ 48. The internal orders of the institutions, especially state ones, vis-à-vis the order of other institutions in which they are included.
Afterword
Bibliography
Index