LEGAL PLURALISM FOR LAWYERS AND SOCIAL SCIENTISTS

Up to a point, lawyers have routinely lived with legal pluralism, even if they have avoided the term, let alone any rigorous conception of it. Legal pluralism in some sense often (perhaps always) exists within nation-state legal systems (Woodman Reference Woodman1998).Footnote ⁴ Federalism is an obvious case with its sometimes shifting legal accommodation between federal law, on the one hand, and provincial, state, or regional law, on the other; all of this legal variety sheltering under the umbrella of the constitutional order of the nation-state as a whole. Colonial legal structures provide another familiar example. Here the imposed or “external” law of the colonist is often juxtaposed with, and presupposes, the indigenous customary law of the colonized (Merry Reference Merry1988, 876)—and this indigenous law itself is frequently reshaped by colonial power, and limited in its reach by “repugnancy” rules invalidating custom-based claims seen as incompatible with colonial law. In these various cases of what is sometimes called official or “state law pluralism” the different legal orders (not necessarily seen as comprehensive “systems”) can be associated or integrated with each other in the state legal structure as a whole.

To take a different case, international law, which over the past century has greatly increased its scope and formal significance, forces itself on lawyers’ consciousness. This at least suggests, if not legal pluralism, legal dualism—national state jurisdiction having to coexist with international legal jurisdiction. And international law itself appears to be becoming pluralistic—partly fragmenting into a plurality of relatively distinct fields, sources, and competing or indeterminately related institutional locations (Varella Reference Varella2013). As always, the juristic instinct is to affirm the absolute primacy of state law when faced with the specter of pluralist uncertainty.

So, the fiction is often maintained that international law is merely the consensual legal outreach of states, embodied in treaties that could in practice be terminated at any time without adverse legal consequences for the states involved; so all law is still firmly tied to the state. But many lawyers engage in transnational legal practice in which the interplay of laws across nation-state borders, the negotiation of relations between legal systems, and the complexity of conflicts of legal authorities are commonplace, inevitable, and impossible to wish away. In these conditions, the field of conflict of laws, or private international law, is becoming more important as a bridging mechanism between legal orders, and is perhaps evolving significantly (Berman Reference Berman2002; Joerges Reference Joerges, Joerges and Falke2011; Muir Watt Reference Muir Watt2011).

Thus, even lawyers, their gaze fixed on their own state as the center of their legal universe, try to accommodate a plurality of legal sources not easily reduced to those of state law. Yet they cannot easily think beyond state-focused legal pluralism—sometimes also called weak or juristic legal pluralism (Griffiths Reference Griffiths1986, 5). In other words, juristic thought falters when legal pluralism is not confined within the boundaries of a state legal system, or when the plurality of legal systems to be considered is not just a plurality of state legal systems.

The most imaginative contemporary juristic scholars tend to adopt one or more of four distinct strategies to banish the pluralist specter (Cotterrell Reference Cotterrell2018, 78–81). First, conflict of laws (private international law) rules enable conflicts between legal orders to be addressed in ad hoc fashion, as they arise, without trying to theorize some overall relationship between these orders or systems. A second approach seeks an overall, unifying legal structure to organize plurality within this unity (as with federalism); this may or may not entail asserting a hierarchy of authority between the components of this plurality, but it aims at least to fix a demarcation of jurisdictions. A third approach tries to establish such a hierarchy of authority for practical purposes (with or without any overall unifying normative umbrella) so that conflicts of authority can be easily resolved. A final approach recognizes some normative systems other than state law as juristically significant but judges that significance in terms of how far these systems operate like state law. For lawyers the ongoing issue is whether these devices can keep at bay the potentially disruptive forces of legal pluralism. In particular, can they handle plurality when plural law cannot all be subsumed in the state law model?

Things seem very different from social scientific perspectives. For many sociolegal scholars the question of the definition of law, crucial to many juristic scholars because it allows them to distinguish law from nonlegal regulation, is often marginalized. Legal pluralism in social science indicates how bodies of social regulation interact and sometimes conflict. State law might then be seen as the law of the largest, most comprehensive, or most dominant group in a society. Interesting questions can be asked about the nature of this special lawmaking group. But in this perspective there are other groups with other law, and perhaps other legal aspirations.

This so-called strong or social science legal pluralism (Griffiths Reference Griffiths1986) focuses on studying regulatory diversity empirically. If every social group has law (or at least, more modestly, has the potential for law) then “virtually every society is legally plural” (Merry Reference Merry1988, 869, 871) and “legal pluralism exists wherever one looks” (Woodman Reference Woodman1997, 157). The legal sociologist John Griffiths (Reference Griffiths, Petersen and Zahle1995, 202) claims that “[a]rguing the point that law is pluralistic is thus no longer interesting. The point has been made.” So, lawyers’ conceptual questions no longer impede empirical social science research. The issue of finding an essential or universal definition of law, the fundamental focus of much legal philosophy, ceases to be important. From Bronislaw Malinowski onwards, legal anthropologists have dropped “semantic questions and focus … on how social needs are met”; defining law is “too complex to be worth arguing about” (Conley and O’Barr Reference Conley and William2002, 871; see Benda-Beckmann Reference Benda-Beckmann2002, 48). Specifying a social scientific meaning of the “legal” is just a practical device to set the scope of empirical inquiry for a particular project about certain kinds of social regulation and the conditions of social order.

Clearly much valuable empirical research can be and has been done on this basis. But it can be argued that if legal anthropology or legal sociology takes “law” as its unifying field of research, some sense of the scope of this field is needed and rigorous concepts of law help to provide this. Sociolegal researchers often recognize this. And many concepts of “law” are devised for sociolegal research purposes, just as social theory has many concepts of “society.” But, whereas a concept such as society is entirely within the province of social science to specify, concepts of law are also, and centrally, within jurisprudence’s province.

Hans Kelsen famously claimed (Reference Kelsen and Wedberg[1945] 1961, 177–78) that sociology of law is inevitably parasitic on juristic legal science, on which it relies for its unifying concept of law. He was wrong because social science can and does develop its own concepts of law for its own purposes. However, it is hard realistically to separate the idea of law entirely from the vast overlay of juristic associations (values, traditions, affective associations, instrumental expectations) typically attaching to it. To conduct sociolegal research on contemporary Western law—especially where issues of legal plurality arise—it may be counterproductive to set aside entirely juristic understandings of law; not to accept that the law understood, defined, interpreted, experienced, and promoted by lawyers and reflected in juristic thought will be at least part of the legal pluralism that social science aims to study and that is often at the heart of its concerns with law. Ultimately a question for social scientific studies of contemporary law in its many forms and settings is how to treat jurisprudence—the systematic thought and experience of lawyers—as a social phenomenon.

In the second half of this essay I try to give a partial answer to that question. Debates in jurisprudence can sometimes have independent sociolegal significance when they contribute to and even help to shape wider ideological and political climates of thought about law. In such circumstances they can seem especially urgent and intense, reflecting widespread and serious concerns about the general condition of law and its paths of development. Then such debates might be properly recognized as part of the sociopolitical reality of law itself. I argue later, putting Romano’s juristic ideas in political context, that some legal pluralism controversies in his time and ours are indeed part of this reality.

Where does this approach leave social scientific concepts of law? In a much-quoted statement, Sally Merry (Reference Merry1988, 878) wrote that if law, in strong or “social science” legal pluralism, is no longer seen as limited to state law, “[w]here do we stop talking of law and find ourselves simply describing social life? Is it useful to call all these [nonstate] forms of ordering law?” At first sight this might seem a misconceived worry, because almost all major social scientific theorists of legal pluralism do aim to delimit the scope of what they treat as law so as not to let “law” embrace all social phenomena. Merry’s question is regularly answered instructively in the literature, in a wide variety of ways (Benda-Beckmann Reference Benda-Beckmann2002, 55–56).

But perhaps something deeper is implied by concern about the boundaries of nonstate law. Certainly, sociolegal research does not require the idea of “law” to be tied to juristic or state law for all research purposes. And lawyers’ reluctance to analyze the vast range of contemporary nonstate regulation can be easily and productively bypassed by social science pluralism. But the coherence of the modern sociolegal research field as a whole, as an integrated enterprise, may require some anchoring conceptual link to the juridical, some criteria of law assuming that ultimate link. Perhaps it relies on a sense that state law—as practice, experience, and doctrine—is still the central case of modern law, however distant some legal phenomena seem from this. Maybe it has to be recognized that something intuitively familiar, as well as professionally arcane, holds the idea of “the legal” together.

ROMANO’S RADICALISM

Perhaps surprisingly, it seems that the same shared enigma, for lawyers and social scientists alike, is embedded in the idea of legal pluralism. The enigma, as Romano explores it in his book, is how to combine juristic understanding and social observation, without distorting either. At least this is what I shall suggest in interpreting the key messages of The Legal Order. If jurists and sociolegal scholars tend to see legal pluralism very differently, solving their problems with the concept might ultimately involve bridging the juristic-scientific divide while not denying its existence; presenting legal pluralism in a new light that makes this idea equally meaningful to both constituencies.

On the one hand, jurists need an expansive view of law to facilitate an understanding in legal terms of the variety of social groups (as Pospisil called them) or networks (Cotterrell Reference Cotterrell2018, 112–14, 134–35) that produce law, or of the “law-like” regulation (codes, orders, standards, etc.) that lawyers increasingly have to consider. On the other hand, for social scientists two general questions need to be faced: Can social scientific legal pluralism manage entirely without a concept of law that reflects juristic understandings? And, where juristic understandings of law are completely marginalized in social scientific legal pluralism, is something lost? For example, a criticism of strong legal pluralism has been that, in its willingness to recognize many legal phenomena beyond the state’s jurisdiction, it ignores worries as to how nonstate law can serve ultimate values that state law is typically expected to serve, for example the value of equality before the law (especially gender equality, seen as an issue in some customary or religious legal orders) (Woodman Reference Woodman1997, 159–62). In general, one can ask: Is the rule of law a concept relevant to nonstate law? If so, what meaning is to be given to it?

It is hard now to reject the idea that certain kinds of modern law exist beyond the state, or in unclear relation to it. This is evidenced by the proliferation of transnational regulatory systems such as sports law, Internet law, human rights law, and commercial regulation created by transnational merchant communities, their legal advisors and (private) arbitrating institutions as lex mercatoria. Many kinds of dispute processing, adjudicative lawmaking, code formulation, and standard setting by international organizations provide further evidence. Some of these regulators are “public” and “official” agencies, sponsored by states and set up by treaties; many others are “private” initiatives of transnationally organized industries (e.g., commercial standard-setting authorities supported by the industries funding them to promote collective self-regulation, industry control, and “best practice”). But it cannot be doubted that they often exert powerful regulatory influence on those subject to their authority.

Few of these contemporary phenomena were apparent to Romano when he published The Legal Order in 1918. But from early in the book, his recognition of a vast plurality of regulatory systems in modern society is clear. He emphasizes phenomena that contemporary legal pluralists often focus on, such as the independent legal identity of religious law or of the regulatory systems of corporate entities (such as business enterprises, factories, hospitals, schools, and trade unions). But he goes beyond this: families can also be thought of, under certain conditions, as independent legal orders; so can political parties. And—the claim that has provoked most debate around Romano’s legal radicalism—organized revolutionary groups and even criminal organizations can be properly seen, from their own subjective standpoint, as legal entities, having a legal identity of their own (Romano Reference Romano and Croce2017, 58–60). When states appear to act unjustly some such entities might gain popular approval even if condemned by the state. “After all, everyone knows how arbitrary, contingent and variable the criteria are that the state adopts for considering certain entities as lawful or unlawful” (59).

This is clearly an extreme legal positivism. It allows no moral judgment to be made in recognizing law’s existence. That the state condemns criminal groups or revolutionary cells does not mean they cannot exist as legal entities. Romano’s view of international law may seem less scandalous. The international legal order is an autonomous entity. International law, he argues, is not derived from state law, although its recognition (or not) by nation-states is important, and it presupposes the existence of state law (Romano Reference Romano and Croce2017, 75). In fact, he claims, the independent identity of nation-states has complex connections to international law. The state itself, as an autonomous legal entity, produces the rules through which it acts, as well as those that structure it. However, Romano claims that an international community of states must exist before the system of mutual recognition of states and their sovereignty is legally possible. The system of legally interacting states presupposes an existing international community that makes it possible to recognize states as independent legal actors.

Of course, within the states, the international legal order exerts minimal legal control. Originally Romano saw international law as having no legal significance for the purely internal legal affairs of states (Romano Reference Romano and Croce2017, 73, 75). But in a second edition published in 1945 (the one cited here), he recognized that international law was beginning to assert some legal claims over this internal state activity (77). The key point, however, is that the legal order of the state is far from being the only legal order that can independently exist.

LEGAL ORDERS AS SOCIAL ENTITIES

It might appear, then, that Romano fully embraces what is now called social science legal pluralism. But the book is intended as a contribution to jurisprudence, not social science. His aim is “to include in the legal world a fact of social order [the vast plurality of self-regulating social entities] that was generally believed to be anterior to law”; he seeks “a jurisprudential definition of law,” not a sociological one (Romano Reference Romano and Croce2017, 20). The concept of “institution” is the key to (indeed a synonym for) the concept of legal order; jurists must “draw this concept into their own realm, which is not that of sociology” (20, my emphasis).

The concept of institution, familiar in social science, has a special meaning here. An institution is “any entity or social body” that has “borders,” “organisation,” “a firm and permanent unity” (Romano Reference Romano and Croce2017, 17, 18, 19) and a “yearning towards the realisation of a shared purpose” (Fontanelli Reference Fontanelli2011, 104).Footnote ⁵ Law is nothing but “an arrangement, an organisation” of such an entity (Romano Reference Romano and Croce2017, 25). Crucially, although the institution may be a social group, it is not reducible to the members of such a group or to social relationships between individuals. It has its own existence, irrespective of the individuals associated with it. It can continue although these individuals are all replaced by others. And it facilitates collective projects that transcend individual lives.

An institution need not be made up of individuals at all (it could be an enduring trust, capital fund, or organizational structure), although it always needs individuals to manage it (Romano Reference Romano and Croce2017, 18). This idea could suggest the legal personality of a corporation, distinct from those of its officers or employees. But personality is, for Romano, a different concept from institution. An institution only “takes on the character of personality when it is considered as an entity with a will of its own” (38). Asserting its personality (so enabling individuals to act for it in fulfilling its “will”) or having its personality recognized by others presumably allows it to interact legally with these others.

It could be easy to see this as indicating the kind of law-producing social units that social science legal pluralism presupposes, a way of conceptualizing numerous law-creating groups or associations. If so, the next step would surely be to study institutions empirically to see how, and in what sense, they have law, and what kind of law. But, strangely, this approach is not Romano’s. If the institution is a social entity, a feature of observable social life, “institution” is nevertheless a legal concept. It is not that institutions create law (or, as in Pospisil’s previously noted view, that social groups have legal systems). For Romano institutions are themselves legal orders; “legal order” and “institution” are synonyms. So, juristic theory has to recognize the vast plurality of law, which is equally the vast plurality of organized social life regulating itself.Footnote ⁶ The entire second part of Romano’s book considers the numerous ways in which legal orders in this plurality can interact legally or, more broadly, may be “relevant” to (have some effect, influence, or bearing on) others.

Legal orders appear fully formed, as integrated, unified entities; it seems that, in Romano’s view, they cannot be recognized as legal orders unless they have this unity. Thus French law, US law, and the law of the Roman Catholic Church are legal orders to the extent that they can be seen as totalities to which all legal issues relating to them can be referred. This juristic perspective does not deny the vast complexity of social regulation, or sociological questions as to how it comes to exist. But it leaves aside these questions (Romano Reference Romano and Croce2017, 46–47). It presumes that legal thought can only work when related to what appears as a unified legal order.

Social entities can be legal orders when they are institutions in Romano’s sense. It follows that legal rules are not the fundamental phenomena of law. Behind the legal rules stands the legal order (institution) to which they relate. A legal order operates by means of, and is structured by, its rules but is much more than them. The institution is “the body, the frame, the limbs of law” and, equally, law is “as inseparable from the institution … as life from the human body” (Romano Reference Romano and Croce2017, 22). Romano notes, as an analogy, the idea of the relation of soul and body: “we are spiritual and corporal entities at the same time” (23). The implication is that, at base, law is the spirit of organized social life. This spirit cannot exist without being embodied in social form, but social existence would be lifeless without it.

Although these ideas are very abstract, they suggest something important: that law is more than regularities of social action or relations and that to be understood realistically it has to be seen as something even beyond social observation, a kind of animating spirit, although it presupposes and cannot exist without the social entities that social science observes. Law is a juristic idea that arises directly out of social life and motivates and organizes social life. So, Romano’s theory is a rare bridging, from a juristic point of view, of pluralist social observation and jurisprudence. As such it has been influential (Fontanelli Reference Fontanelli2011, 70–71; Francescakis [1975] Reference Francescakis, Romano, Francois and Gothot2002, xiv–xvi).

Beyond its abstraction, the book addresses some important issues of Romano’s time that are not irrelevant to ours—notably the legal position of collective bargaining in industrial relations (Romano Reference Romano and Croce2017, 61, 96–98). He notes that the state legal order typically sees in the workplace only legal relations between individuals and the enterprise, governed by the individual employment contract and that this is part of a wider legal marginalization of social groups. But the institution of collective bargaining, he insists, is its own legal order, distinct from that of the state, and recognized subjectively as important by those involved in collective bargaining processes. The theory of the institution gives no inevitable primacy to either the state legal order or the collective bargaining legal order. So, it forces jurists to consider each, and their relations—not (arbitrarily) to assume that only one (state) legal order deserves juristic attention.

Essentially the question is posed: When two legal orders confront each other how are they to be coordinated, if each is subjectively valid in the eyes of those who represent and operate through it? What social science legal pluralism identifies empirically is, in Romano’s work, sharply rethought as an often extremely difficult normative problem: What actually should be done when the state’s law confronts society’s law—that is, the regulatory understandings of many different social groups?

FASCISM AND THE CONTEXT OF THE LEGAL ORDER

In Romano’s theory all legal orders are viewed “from the inside,” as from the perspective of a legal participant, someone inside the institution: the approach is “perspectival” (Croce Reference Croce and Romano2017, 127). It postulates what is involved in experiencing a regulatory system as an enveloping environment, and then what is needed to be able to look beyond any particular legal order to try to appreciate the way the reality of other such orders is experienced. Any idea of the inevitable centrality of state law is rejected as a matter of legal theory, while the internal viewpoint of the jurist (which is the experience of anyone trying to make normative sense of law as an insider in a legal order) is retained and infinitely extended.

So, social life is brought inside jurisprudence. But equally, it seems, in Romano’s understanding the concerns of jurisprudence are part of organized social life. In other words, the social experience of living inside regulatory systems can be subjected to analyses drawing on a long accumulation of methods of legal interpretation and of juristic management of regulatory conflicts. And, insofar as legal orders are recognized subjectively, the issue of conclusively defining law might seem peripheral. One just inhabits law (and recognizes others doing the same), rather than looking at it as an object to be delineated. As regards the state, once in being, it is undoubtedly a legal order and from a certain point of view is all-embracing and dominant. But its legal significance is not necessarily obvious to those who do not subjectively experience it strongly as a legal order (as, for example, its officials typically do). They may be utterly alienated from it, and have a legal consciousness set up in opposition to it, or indifferent to it. State law has to coexist with other legal orders subjectively recognized as real by those associated with them.

Romano’s book, with its laconic, lawyerly style, leaves it entirely to the reader to draw conclusions about where a radical legal pluralism might lead. We can ask what really motivated him to present the most radical conception of legal pluralism ever proposed by a jurist—and to do so in the face of lawyers’ clear general hostility to strong pluralist perspectives on law. He makes scarcely any reference to political context and offers no systematic survey of social issues of his time. Yet many of these issues must have been in his mind when he wrote his book, and they are strongly in evidence in some of his other writings. Looking at these might suggest the hidden politics of The Legal Order, and—as I shall argue—provoke reflection on the politics of legal pluralism today.

In 1909, a few years before The Legal Order first appeared, Romano published a paper on “The Modern State and Its Crisis.”Footnote ⁷ It came at more or less the midpoint of a glittering academic career, which was then subordinated to a no less spectacular judicial career. From 1929 to 1944 Romano was President of the Council of State, Italy’s highest administrative court.Footnote ⁸ So, it is hard to visualize him as any kind of legal outsider, and the apparent iconoclasm of his radical legal pluralism seemed to do him no harm in terms of his career in the state establishment. He is always described as a political conservative and is said to have “had no penchant for the limelight of politics” (Croce Reference Croce and Romano2017, 112); in fact, a technically minded lawyer through and through.Footnote ⁹ He held high judicial office during the fascist period in Italy, but it is claimed that his appointment to the Council of State “did not imply at all a ‘fascistization’ of the Court” over which he presided “with a great dignity” (Sandulli Reference Sandulli and Mariniello2009, 30). The context of fascism, however, is an important matter to return to later.

“The Modern State and Its Crisis” suggests an acute political awareness. Some themes of The Legal Order are present in the paper but take on much clearer political significance in it. For example, he writes that the state, an entity in itself, transcends the ephemeral existence of individuals with their particular interests (Romano Reference Romano2015, 3). It must present itself as a synthesis of diverse social forces. But new social associations proliferate in modern society—trade unions, agricultural, merchant, industrial and public officials’ organizations, cooperative societies, mutual institutions. The formation of organized groups centered on economic life is “the major fact of the present era” and “a more solid and organic social cohesion is needed” (6).

The state prefers to recognize legally individuals, not social groups, he notes, and it cannot control these groups (Romano Reference Romano2015, 7). It confronts a social movement that “organises itself according to its own laws” (8).Footnote ¹⁰ And some powerful social forces are implacably hostile to the state, aiming at replacing it with syndicalist social organizations. Corporatist developments (self-regulating groups) are not entirely unwelcome; they can challenge excessive individualism (11), and might cure some deficiencies of the state. But inadequate current electoral systems undermine faith in the state; electoral colleges representing the diversity of social groups would give a way forward and need not challenge the state’s unity (13–14).

Despite all its problems, the state is essential because there must be “a higher organization to unify, moderate and harmonise the minor organizations. This higher organization can for a long time continue to be the state” (Romano Reference Romano2015, 14). So, it seems that when he wrote this paper Romano in no way wished to displace state law from the center of the universe of legal plurality, as The Legal Order a few years later seemed to suggest (Romano Reference Romano and Croce2017, 50–53). Instead the paper advocates a form of state corporatism; that is, state supervision of self-regulating social groups.

Significantly, the ideology of Italian fascism also promoted state corporatism starting in the 1920 s but it is unlikely that Romano would have gladly approved of fascism’s total idolization of the state—“everything in the state, nothing against the state, nothing outside the state” (Mussolini Reference Mussolini and Schnapp2000a, 66). The fascist state controlled society in part by creating and supervising social corporations—syndicates representing occupational groups. But it envisaged the state pervading all aspects of social life (Mussolini Reference Mussolini and Schnapp2000b, 164), whereas The Legal Order proclaimed the autonomous legal existence of entities distinct from that of the state (Romano Reference Romano and Croce2017, 53–54). Occupational syndicates approved by the fascist state were legal entities (Welk Reference Welk1938, 54–55) but had no significant autonomy from the fascist regime and the state legal order.

Why are these comparisons of fascism with Romano’s writings important? They might suggest a link or even a progression from a certain attitude to legal pluralism toward an authoritarianism addressing this pluralism and aimed at controlling it. There seem to be significant differences between Romano’s ideas and the politico-legal environment that arose a few years later in fascist Italy. However, it is hard to imagine that, even if The Legal Order treats the state as just one legal entity in a vast plurality of such entities, he was writing as anything other than a loyal state jurist (Soldini Reference Soldini2015, 16). He has been called “theoretically a pluralist but ideologically a monist,” propounding “pluralism in the service of the state” (quoted in Soldini Reference Soldini2015, 11).Footnote ¹¹

The real aims of The Legal Order are never revealed in it.Footnote ¹² Perhaps he wanted no more than to represent the fundamentally pluralist sociolegal reality he saw around him (on which see Zanetti Reference Zanetti2011). But the book may have been intended to alert jurists to the seriousness of threats to the state from social fragmentation. It certainly highlights phenomena that Romano no doubt thought must be brought to the attention of the state and its officials but had been neglected.

So, it highlights a need to regulate collective bargaining properly by presenting this need in the dramatic form of legal pluralism—a confrontation of state and nonstate legal orders. And when the suggestion is made that some organized crime groups and revolutionary political groups could be seen as having their own law even though the state utterly rejects this perspective, that could be a way to emphasize the threat of weakening or collapsing state authority in the face of organized social groups that might usurp or completely destroy that authority. Finally, Romano’s insistence on the total legal autonomy of international law, independent of national interests, might be a reaction to the disastrous fracturing of the international community in World War I, which was still being waged when he wrote. International law, The Legal Order strongly suggests, must not be subordinated to the play of state interests.

LEGAL PLURALISM IN CONTEMPORARY POLITICS

A general theme that can readily be associated with Romano’s book is, I suggest, critical for contemporary analyses of legal pluralism. This is the idea of self-determination of legal orders, and of legal identity as a vehicle for asserting claims to self-determination by social groups and population sectors within the jurisdiction claimed by a state. For Romano, any legal order has, for those associated with it and often for outsiders, a unique identity and this may be legally “relevant” to other legal orders in many different ways (Romano Reference Romano and Croce2017, 69ff.). Can we go further and say that the appeal to group legal identity is experienced as collectively empowering, and that it may be similarly empowering to reject group subordination to what is perceived as an alien legal identity?

This question has great significance in the context of contemporary multicultural societies or those experiencing various kinds of social fragmentation. Sometimes, perhaps often, it is against the state and state law that assertions of separate legal identity, or claims to legal self-determination of social groups, are directed. Independence movements sometimes begin to make their claims around the idea of autonomous legal orders, or freedom from “alien” legal orders. The effort to assert legal self-determination has, for example, been important in the politics of Native American identity and efforts toward greater cultural autonomy (Goldberg Reference Goldberg2000, 264–65).

The claim to legal self-determination is strongly present in the movement to “take back control” that led to the British vote in favor of leaving the European Union in the Brexit referendum of 2016. The integration of Member States’ law and the structures of European Union law can easily be seen as a kind of legal pluralism (for example, Arnaud Reference Arnaud, Petersen and Zahle1995; La Torre Reference La Torre1999; Barber Reference Barber2006), or a component in a larger legal pluralism that includes varieties of international law. So, Brexit can be viewed, in one perspective, as an effort to take back control of national law as an entirely autonomous legal order and to redefine afresh the points of “relevance,” to use Romano’s term, of national law to other legal orders, including European Union law. So, “take back control” is said to mean “control our own borders,” “make our own laws,” “have only British judges to enforce them,” “set our own trade rules,” “be masters of our own budget.”Footnote ¹³

General resistance to international legal entanglements created by treaties establishing transnational trade rules that are intended to be relatively permanent can be seen in a similar light. Legal monism (here the exclusive, autonomous identity and jurisdiction of the law of the independent national political society) is asserted against legal pluralism (here the uneasy coexistence of state law and various regimes of international law as distinct, but interacting or competing, legal orders applicable in the same territory). This resistance may also be driven by suspicions that transnational law based partly on treaties made by participating states is slowly building a global legal order to which important parts of state law will be subordinated.

In other words, the concept of state legal pluralism, in which various legal orders are all organized and coordinated under the umbrella of the state, might appear to be a template for a comparably structured transnational legal pluralism—that is, a global regime in which all national legal orders are organized and coordinated. This vision is far from reality. There is no such overarching legal umbrella. But the imagined specter of something like this may be a factor in resistance to the legal pluralism created by intersections of the law of nation-states with proliferating transnational and international legal structures.

In some ways more pressing, perhaps especially in Europe, are other fears about legal pluralism within the political society of the state. These arise in some parts of public opinion from the legal aspirations and claims of particular population groups in multicultural societies. As is well known, these aspirations and claims often center on religious law, and especially on the place of Islamic law in Western societies. Many commentators frame debates around this specifically in the terminology of legal pluralism. To assert elements of Islamic law, or perhaps varieties of customary law, as resources for individuals or groups wishing to use these, is treated as a claim for recognition of legal pluralism within the state (for example, Fourneret Reference Fourneret2006; Bader Reference Bader and Ralph2009; Tas Reference Tas2014).

The terminology of legal pluralism is easy to adopt in this context (both by those who welcome such regulatory diversity and those who want to resist it) because few doubt that the regulatory orders involved are “law” in some sense. Islamic law is readily recognized (and not only by those subject to it) as a legal order, but not, of course, as a state legal order in Western societies. So, the issue of legal pluralism here is, from one perspective, very much like that presented by Romano. When can nonstate regulatory orders be accepted juristically as law, on the basis that they are undoubtedly subjectively experienced as law by those associated with them and are distinct organized social entities; that is—as Romano would term them—institutions?

Certainly, an organized Muslim community is an institution in Romano’s sense and so, to use his terms, it is “the body, the frame, the limbs of law” and, equally, law here is “as inseparable from the institution … as life from the human body” (Romano Reference Romano and Croce2017, 22). The new politics of legal pluralism thus centers, in this kind of case, on a degree of cultural legal self-determination, which is just another way of referring to relatively autonomous communal social organization and regulation.

Today, these issues of legal pluralism are never seen as purely juristic but always sociolegal in a broad sense—inseparable from social scientific perspectives. Romano’s statement in The Legal Order that he adopts the concept of “institution” to make it possible for jurists to conceptualize organized social life in “their own realm, which is not that of sociology” (Romano Reference Romano and Croce2017, 20) might reflect an unease at the popularity of sociological perspectives on law early in the twentieth century. Sociological jurisprudence at that time, in the United States and several European countries, was a critical response to the failure of state legal systems, and juristic thought, to adapt to changed social and political conditions (Cotterrell Reference Cotterrell2018). Today, as when The Legal Order was written, jurists are challenged to understand social conditions. Correspondingly, a sociolegal challenge is to assess how social scientific study of law relates to the juristic responsibility to make legal sense of social complexity.

AN UNCERTAIN ROLE FOR THE STATE

Sociology in the early twentieth century emphasized a need to understand the social bases of political processes realistically. Romano’s Italy was still a relatively new nation-state with limited experience of stable democratic structures and of parliamentary government. Both in The Legal Order and in his 1909 paper he stressed that the state must be juristically seen as a unity, a single legal entity, independent of elite groups, factions, and interests associated with it. But a very different account of the state was developed at around the same time by Romano’s more famous compatriot, the political scientist Gaetano Mosca. Mosca’s book The Ruling Class (Reference Mosca and Kahn1939)—a foundation text of modern elite theory in political sociology—argued that distinct elite groups will always dominate in any state, democratic or not, whatever the legal structures.

Mosca suggested that the separation of powers doctrine should be radically reinterpreted and developed—not just as a formal separation of legislature, executive, and judiciary, but as the conditions for a plurality of social groups to influence events, competing with and checking each other through state institutions and beyond them. By this means, dominating elites might at least be productively transformed. Romano fiercely rejected Mosca’s sociological treatment of the state, insisting that it must be seen as an entity distinct from interest groups. But Mosca saw how, without these checks, essentially social rather than legal, the state might be monopolized by a despotic faction with entrenched monopolistic power. When fascism arose in Italy Mosca became its outspoken opponent (Benewick Reference Benewick, Benewick and Green1992).

Compared with Mosca’s thought, Romano’s is politically ambiguous. What kind of pluralism, in practice—as a matter of sociolegal reality—would follow from his legal pluralism? He does not tell us but three possible scenarios can be suggested.

• In the first scenario a stable state asserts exclusive dominance over all legal regulation by coopting other legal orders within it. A preliminary step toward this might be the recognition of nonstate legal orders in order to work out their relations with the state juristically (a task The Legal Order undertakes). But these relations would ultimately be those of subordination, with one legal order (that of the state) dominating all others (which might themselves be arranged hierarchically). This would be some kind of state corporatist order. Toward the extreme (as the state becomes more powerful and more ambitious) this order moves toward fascist corporatism—that is, corporatism that confines individual liberty in a legally framed, hierarchical structure of collective organizations. The possible endpoint is totalitarianism—organized, state controlled, direction of all social and individual life and destruction of all opposition to this direction. But there is certainly no reason to suppose that state corporatism must move to this extreme.

• A second scenario is a more “evenhanded” pluralism, entailing a respectful conversation between legal orders to produce social-political equilibrium. The same preliminary step (of juristic recognition of legal orders) as for the first scenario would be required. But, as it moves toward an extreme, this second scenario becomes what might be called full or genuine legal pluralism, a pluralism in which the jurisdictions of legal orders as well as the nature and extent of their authority are negotiated between these orders and, depending on contingencies, revised. The underlying assumption is the value of, or need for, maximum legal self-determination. In political terms the objective is pragmatically ordered liberty and local justice.

This genuine legal pluralism, if it is not to disintegrate into a third possible case outlined below, needs coordination. Typically, this is likely to be by the state, but it could be by some other superior legal order. This superiority is not exercised, as in the first case, to subordinate inferior legal orders but to supervise legal plurality with the aim of maximizing legal self-determination, doing so under a structure of overarching minimal common values necessary to guarantee overall social solidarity across this plurality and membership and participation rights within it. Some such value structure may be indispensable to realize pluralism with any degree of stability (Cotterrell Reference Cotterrell2018, 164–67, 190–93). But it should “have nothing sacred and immutable about it. When power rests on a system of ideas and beliefs outside of which it is felt that there can be neither truth nor justice, it is almost impossible that its acts should be debated and moderated in practice” (Mosca Reference Mosca and Kahn1939, 139). The superior legal order itself should be responsive to pluralist negotiation.

• A third scenario is one of irreconcilable conflict between legal allegiances, with no centripetal force such as a strong, controlling state (as in the first scenario) or ordered, negotiated and principled compromises between legal orders (as in the second) to provide legal stability. If this third scenario arises in the political society of a nation-state, each faction often seeks to capture state institutions to make them instruments of its purposes. This becomes a serious crisis when not enough forces aim primarily at maintaining the integrity of state institutions apart from politically partisan purposes, and not enough social forces assume an overriding value of solidarity as essential to the whole political society. This situation moves, at the extreme, toward anarchy (the lack of any effective regulation), perhaps resolved by the triumph of one political force over all others.

If Romano’s juristic pluralism is not concerned to set out any scenario such as those above, it ought to inspire an inquiry as to how legal pluralist concepts translate into political consequences. In other words, where can the politics of legal pluralism lead when pluralism appears in extremely radical light as in The Legal Order, and the state is required to come to terms with it?