{"title":"Legal Pluralism from History to Theory and Back: Otto von Gierke, Santi Romano, and Francesco Calasso on Medieval Institutions","authors":"Emanuele Conte","doi":"10.1017/s0738248023000159","DOIUrl":null,"url":null,"abstract":"\n This paper considers the historical contexts in which theories of legal pluralism grew and developed between the final third of the nineteenth century and the first half of the twentieth century. Theories of the state as a pluralistic system, as opposed to the absolute supremacy of state-made law, were the focus of German legal historical scholarship in the late nineteenth century, represented by the towering figure of Otto von Gierke. Gierke's image of a pluralist German Middle Ages largely influenced legal scholarship in Europe, even affecting the Italian scholar Santi Romano, whose book on the “legal order” has been considered a milestone in the construction of pluralist legal theories. Once passed from a legal historian like Gierke to a theorist like Romano, the model of a pluralist legal order returned to legal historiography, inspiring the innovative historical interpretation of medieval law proposed by Francesco Calasso. Gierke was a conservative, right-wing socialist, and Romano was a fascist and counselor of the fascist Italian government. Calasso, on the contrary, was a liberal opponent of the fascist regime. The three versions of legal pluralism, then, decline the same basic vision in three different ways, being influenced by the political contexts in which the three authors operated.","PeriodicalId":17960,"journal":{"name":"Law and History Review","volume":null,"pages":null},"PeriodicalIF":0.8000,"publicationDate":"2023-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Law and History Review","FirstCategoryId":"98","ListUrlMain":"https://doi.org/10.1017/s0738248023000159","RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"HISTORY","Score":null,"Total":0}
引用次数: 0
Abstract
This paper considers the historical contexts in which theories of legal pluralism grew and developed between the final third of the nineteenth century and the first half of the twentieth century. Theories of the state as a pluralistic system, as opposed to the absolute supremacy of state-made law, were the focus of German legal historical scholarship in the late nineteenth century, represented by the towering figure of Otto von Gierke. Gierke's image of a pluralist German Middle Ages largely influenced legal scholarship in Europe, even affecting the Italian scholar Santi Romano, whose book on the “legal order” has been considered a milestone in the construction of pluralist legal theories. Once passed from a legal historian like Gierke to a theorist like Romano, the model of a pluralist legal order returned to legal historiography, inspiring the innovative historical interpretation of medieval law proposed by Francesco Calasso. Gierke was a conservative, right-wing socialist, and Romano was a fascist and counselor of the fascist Italian government. Calasso, on the contrary, was a liberal opponent of the fascist regime. The three versions of legal pluralism, then, decline the same basic vision in three different ways, being influenced by the political contexts in which the three authors operated.
本文考察了法律多元主义理论在19世纪最后30年至20世纪上半叶之间成长和发展的历史背景。将国家作为一个多元体系的理论,与国家制定的法律的绝对霸权相对立,是19世纪晚期德国法律历史学术研究的焦点,以奥托·冯·基尔克(Otto von Gierke)为代表。基尔克对多元主义的德国中世纪的形象在很大程度上影响了欧洲的法学研究,甚至影响了意大利学者圣蒂·罗马诺(Santi Romano),后者关于“法律秩序”的著作被认为是多元主义法学理论建设的里程碑。一旦从像吉尔克这样的法律史学家传到像罗马诺这样的理论家那里,多元法律秩序的模式就回到了法律史学,并激发了弗朗西斯科·卡拉索对中世纪法律的创新历史解释。基尔克是保守的右翼社会主义者,罗马诺是法西斯主义者和意大利法西斯政府的顾问。相反,卡拉索是一个反对法西斯政权的自由主义者。因此,受三位作者所处的政治环境的影响,法律多元主义的三个版本以三种不同的方式否定了相同的基本愿景。
期刊介绍:
Law and History Review (LHR), America"s leading legal history journal, encompasses American, European, and ancient legal history issues. The journal"s purpose is to further research in the fields of the social history of law and the history of legal ideas and institutions. LHR features articles, essays, commentaries by international authorities, and reviews of important books on legal history. American Society for Legal History