This paper explores the contribution by the contemporary legal realist Hanoch Dagan. Dagan’s brand of realism defines law on the basis of its institutions or social practices, not of its norms or rules. The paper first provides a critical overview of this realist theory of law: It is not synonymous with the predictive theory of law, with Leiter’s theory of judges, or Frank’s “breakfast theory”. By focusing on the role of judges and the methodology of legal reasoning, we discover that (...) the core difference between realism and positivism lies in the claim that law is affected by a strong form of indeterminacy, stemming from the plurality of legal sources, not from the open texture of legal language as expressed in rules; and we are also able to distinguish this form of realism from contemporary movements in legal theory, such as critical legal studies and law & economics. The normative dimension of realism is also addressed: This theory of law develops a specific concept of justice, on the ground of a cognitivist theory of value. (shrink)

The aim of my article is to relate Roberto Esposito’s reflections on Europe to his more recent proposal of instituent thought. I will try to do so by focusing on three theoretical cornerstones of Esposito’s thought: the first concerns the evidence of a link between Europe, philosophy and politics. The second is deconstructive: it highlights the inadequacy of the answers of the most important contemporary ontological-political paradigms to the European crisis, as well as the impossibility of interpreting this crisis through (...) theoretical-political categories such as sovereignty. The third relates more directly to the proposal of a new political ontology, which Esposito defines as instituent thought. Esposito’s discussion of political theology is the central theoretical nucleus of this study. This discussion will focus, in particular, on the category of negation, from which any political ontology that is based on pure affirmativeness or absolute negation is criticized. In his opinion, philosophical theories developed on the basis of these assumptions have proved to be incomplete or ineffective in relation to the current European and global philosophical and political crisis. Esposito therefore perceives the urgent need to propose a line of thought that is neither negatively destituent, nor affirmatively constituent, but instituent, capable of thinking about order through conflict. Provided that we do not think of the institution statically–in a conservative sense–but dynamically, as constant instituting in which conflict can become an instrument of a politics increasingly inspired by justice. (shrink)

The author deals with the legal theoretical approach that has been labelled “legal institutionalism.” An old and a new version of this approach are singled out: The old one is identified with the theory defended by the Italian public lawyer Santi Romano in the first half of this century; the second one is seen in the recent work by Ota Weinberger and Neil MacCormick. After a short presentation of Romano's work, his ideas and the development proposed by MacCormick and Weinberger (...) are compared. Similarities and differences between the two versions of institutional theory are worked out. A coda hints at an ambiguity in the definition of institution proposed by the “new” institutionalism. (shrink)