Italian legal theory legitimated parallel institutions rivaling the state.

Evidence

These statements are the corollary of a relativist approach in the relationship between the state and the law. Romano argues that since the former is not a necessary condition of the latter (p. 111), the state cannot justifiably claim a monopoly over the law. The state is only one institution among many, and there is no reason why its legal order should be regarded as superior. Correspondingly, “To deny … the character of lawfulness [giuridicità]” to the order of parallel institutions “can be done only on the basis of an ethical judgment, because such associations are often criminal or immoral.” But such a judgment is not generally warranted because “we all know how arbitrary, contingent, and variable are the criteria with which the state rules on the legality or illegality of some associations.” There are political associations which fight against the state and whose ideals of justice are ethically superior to those of the state which defines them as illegal. And “there are religious establishments which have at times been banned and yet reflected the predominant moral sentiments” (p. 124). Romano says nothing about the criteria for settling disputes between institutions whose lawful orders clash: whether they compromise or combat each other is deemed irrelevant by the jurist. … Romano’s position has been very influential in Italy, not so much on mainstream legal thinking, which is firmly statist, as on politics. It has enjoyed popularity with all kinds of antiliberal circles right, left, and center. It was used in support of corporatism, of the state as mediator between organic independent bodies (Romano himself endorsed the Fascist regime and became president of the State Council). And it provided legal grounds for the claims to independence of the Catholic church and its institutions (in one chapter of his book Romano discusses at length why the church should be regarded as above the law of the state). But it also supplied the left with arguments against any attempt by the state to ban unions, popular associations, and revolutionary parties. — Diego Gambetta, The Sicilian Mafia The Business of…, 21

Categorization

• XREF: Directly parallels the Mafia-as-parallel-state argument and Gambetta’s own thesis; also resonates with Milgrom’s private judges as non-state legal orders.
• DEFINE: Introduces Santi Romano’s ‘institutional pluralism’ — the state as just one legal order among many — a key conceptual foundation for understanding the Mafia as legitimate (in a legal-theoretical sense) private protection.