Institutionalism in law

‘Institutionalism’ is the name for an approach to the theory of law worked out in the late nineteenth and early twentieth centuries by a number of scholars from continental Europe, working mainly in independence from each other. Their common characteristics can be stated only in rather generic and negative terms. They are all critical of statalism, that is, too readily identifying law and state; of voluntarism, that is, treating will as an essential element of law; and of normativism, defining law as a body of norms. In positive terms, they have in common a generic emphasis on the social character of law, and a sense of the need to take a view of legal experience broader than that defined by its traditional boundaries, and to extend the ‘official’ catalogue of the sources of law.

Nowadays, there is new talk of institutionalism in the philosophy of law, but in a different sense, with reference to the idea of law as made up of institutional facts, that is, facts whose meaning depends on norms. This neo-institutionalism is normativist, analytical and hermeneutic in approach and has only the most tenuous links with classical institutionalism.