Crítica al institucionalismo clásico como teoría: irrupciones y disputas (para)estatales por el control social

Institutionalism, as a theory, in its two orientations, French and Italian, rejects the legislative omnipotence of the State, voluntarism and contractual subjectivism, the logical-formal abstraction and the static character of state law with respect to the social, affirming, in contrast, the plurality of legal systems, different from State law, the preeminence of the collective over the individual, the sociality of legal experience and the dynamism and legal concretion of facts, values and norms (dialectic of factual order– axiological, as a manifestation of continuous change and the permanent stability of social institutions). Institutionally, the relationship between power and law is inverted, since now it is not the will of the state that orders society sovereignly and normatively, but rather the plurality of social, organized and disciplined entities, which create and exercise power. The institution is, effectively, an organized social force, regardless of the goals it pursues, which is transformed into law. The legal nature of any social institution, ordered and disciplined, is therefore undeniable, regardless of its purposes and its relationships (integration, collaboration or confrontation) with other forces that may affirm or repudiate it. Now, the advantages of legal pluralism are undeniable, and also its risks. Currently, the irruption of non-state, parallel and subterranean institutions, which dispute control of individual and collective life, expand and dilate punitive power, reinvigorating old discourses and practices of social and punitive discipline (collectivist, retributive, informal, spontaneous, unlimited, decentralized), which increasingly ignore liberal guarantees, in the name of popular justice.