Romano, Santi (1875–1947)

Santi Romano was a leading figure of the Italian general theory of law in the first half of the twentieth century [Page 1327]and a prominent representative of institutionalism. He was the professor of constitutional law at the universities of Pisa, Milan, and Rome and president of the Consiglio di Stato, the apex Italian administrative court. His main works were Lo Stato moderno e la sua crisi (1910, The Modern State and Its Crisis), L'ordinamento giuridico (1917, The Legal Order), and Frammenti di un dizionario giuridico (1947, Fragments of a Legal Dictionary).

Romano took part in the antiformalist movements concerning the general theory of law. He criticized normative theories of law grounded in the concept of a legal system as a mere set of norms, which in his view were conditioned from private law's concepts and assumptions, and instead elaborated an institutionalist approach to the definition of law. In his view, an institution is a social organization that produces and enforces norms, and it is in itself a legal order. The concept of legal order, which is different from that of legal system, is a holistic concept that allows for a deeper understanding of the nature of law as a totality of norms, procedures, and sanctions defining a social organization as a concrete unity. In Romano's view, one could apply the concept of legal order not only to the state but also to any other social organization—even an organization that competes with the state, such as the Mafia—and to embryonic forms of organization such as a queue.

Romano's approach aimed to be juridical and not sociological. He believed all organizations could be seen as properly legal and analyzed following a legal method. In this sense, Romano's approach, like other institutionalist approaches, does not distinguish neatly between the legal and the nonlegal spheres. It makes the legal order a general category that may be applied to every context in which an organization may be envisaged.

The concept of institution provides Romano's theory with a powerful tool for the analysis of intermediate legal bodies between the state and individuals, such as associations, labor unions, and political parties, as well as supranational organizations in the international community. Romano therefore challenged the identification of law and the state, which was dominant in his epoch, and supported the theory of plurality of legal orders. The state is only one among the several existing legal orders, even if it has a special position encompassing and organizing other minor legal orders, such as territorial suborganizations and intermediate social groups. Even if Romano's thought was liberal and antistatist, his theory of plurality of legal orders became important to corporativism as developed in fascist ideology.