Legal institutionalism

In the history of legal thought, legal institutionalism is a twentieth-century creation born in reaction to two dominant streams of scholarship, legal positivism and natural law. The social and intellectual context that gave birth to legal institutionalism explains many of the concerns at the forefront of legal institutionalists' work. Gunther Teubner has captured this peculiar trait of legal institutionalism in the following terms: 'Institutionalist theories and, in particular, the new discipline of sociology then came up with a more complex self-description of society'. In a classic institutionalist gesture, Maurice Hauriou draws a distinction between institution and positive law: 'institutions make juridical rules; juridical rules do not make institutions'. Such a distinction suggests an affinity between Hauriou's theory and legal pluralism. The ordering properties of institutions were later taken up as a key premise by Carl Schmitt, who after having read Hauriou and Santi Romano appeared to convert to an institutionalist conception of law.