Francesco Pallante

At the Origin of Juridical Institutionalism: The Conception of Law in Émile Durkheim

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The article illustrates the conception of law present in the work of Émile Durkheim - through the analysis, in particular, of the book on the division of labour (De la division du travail social) - for the purpose of highlighting the ascendancy thereof on institutionalistic theories of law. The tie that Durkheim identifies between the legal system and the 'social conscience' proper to the society which that system expresses - a tie that induces the French sociologist to define law as the 'visible face' of socially shared mores - represents the fundamental idea beginning from which the institutionalistic legal theories were later developed, the distinctive trait of which is precisely the intimate connection between law and social order. After having briefly illustrated how this common matrix after Durkheim has been elaborated differently by authors such as Maurice Hauriou, Santi Romano and Léon Duguit, the work concludes with some observations on the contribution of intuitionalists to reflection on the foundation of validity of the legal system, maintaining that the way in which these scholars resolve the problem presupposes a notion of society that, going beyond the individual contributions that concur to form it, clearly draws on Durkheim's thought.


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