Legal Institutions and Norms: the Problem of Validity and Efficacy of the Law in Legal Institutionalism
The concept of "institutionalism" in the usual word use covers a whole range of influential philosophical and legal doctrines of the XX century. Due to fundamental differences between them, the general theoretical and legal reconstruction of institutionalism as a single doctrine and, consequently, the clarification of its content cause difficulties. At the same time, the popularity of this trend is growing in the discussions of contemporary legal scholars, and some of the representatives of the Russian philosophical and legal thought believe themselves to be the followers of this tradition. The paper proposes to proceed from the established division of institutionalism into "old" ("classical") and "new". Representatives of classical institutionalism (M. Hauriou, S. Romano) predictably believed that the basis for the validity of norms was institution, but the source of the validity of institutions themselves as legal phenomena was understood by them differently. For M. Hauriou, this was the "idea" which, from within, structured the institution and organized its activities. Among other things, it also determined the fair balance of power and individual autonomy for a particular institution, which, in the end, predetermined the legal character of this or that institution. S. Romano, adhering to more positivist positions, believed that the reality of so-called "original" institutions (whose reality is not justified by other institutions) is a consequence of their effective organisation, which distinguishes the institution from any other social group. An important step in the theoretical understanding of institutionalist ideas in law was Schmitt's teaching about three types of legal thinking: decisionism, normativism, and thinking about law as a specific order and form. The latter was formulated by a German lawyer under the influence of the ideas of institutionalism and, according to his idea, should have included it as one of the subspecies. Despite the fact that Carl Schmitt's affiliation to institutionalism is a subject of discussion, the ultimate basis of the reality of the rule of law postulated by him is quite within the logic of the latter - these are the collective metaphysical notions that exist within a specific order. The modern version of institutionalism is legally represented by the institutional legal positivism of O. Weinberger and N. MacCormick. The "new" institutionalism is based on the concept of institutional fact, which differs from the facts of the physical world. Institutions themselves are understood as systems of human action based on practical information (legal norms). In contrast to the "old" institutionalists, O. Weinberger and N. MacCormick do not consider norms secondary to institutions - one simply cannot be imagined without the other. The reality of norms is understood in the spirit of H. Kelsen's theory, as based on their origin and having a complex connection with the notion of efficacy. The historical development of legal institutionalism reflects the evolution of ideas about the relationship between reality and efficacy of law - while classical institutionalism denied any connection between them, "new" institutionalism considers these categories as interrelated, which reflects the normative tendencies of the latter.