Why Does the Law Want Us to Be Normal?: Schmitt’s Institutionalism and the Critique of the Liberal Legal Order

With a greater or lesser degree of sympathy and approval, Carl Schmitt has always been a point of reference for the critics of the liberal state. The pitiless denunciation of (what he viewed as) liberals’ hypocritical faith in the balance of powers and the neutrality of state law characterizes his oeuvre as a whole, despite the frequent adjustments his thinking underwent throughout his life. In this article, however, we claim that there is a phase in Schmitt’s theoretical development that is as instructive and enlightening as it is underestimated by most Schmitt scholars. In this phase, which we believe to be central to the understanding of Schmitt’s overall conception of politics, law, and society, he unraveled many of the theoretical impasses that he had incurred and left unsolved in the previous texts. More specifically, we claim that, notwithstanding his execrable allegiance to the Nazi regime, in the 1930s Schmitt set forth a thought-provoking institutional theory of law that allowed him to make his critique of liberalism deeper and more effective.

In the first section of this article we scrutinize the reasons why Schmitt moved from his well-known decisionist paradigm to an institutional conception of law. In doing so, we cast light on the renewed role of normality in his legal theorizing and the way it is key to the existence of legal norms. In the second section we pin down Schmitt’s conception of the nature of norms vis-à-vis his polemic targets, normativism and legal positivism, to highlight the gist of his critique of the liberal legal order. On the basis of this, we contend that Schmitt’s institutionalist critique offers precious insights into the nature of the way law works on social reality. To vindicate this claim, in the third section we juxtapose his view with François Ewald’s Foucauldian view of norms to pinpoint interesting convergences in their critical analyses on how norms serve as standards carrying out both cognitive and practical tasks. To show the import of our analysis, we bring Schmitt’s institutionalism to bear on the topical phenomenon of homonormativity, or rather, the normalizing effect of legal recognition on same-sex sexualities. In doing so, our goal is to show that Schmitt’s understanding of the foundational role of normality and its relation to the production of legal norms reveals something relevant to the nature of the legal order of liberal regimes, and in particular on the way these regimes try to conceal their selective and exclusionary activity with recourse to the claimed neutrality of state legal rules.

The objective of this article, therefore, is twofold. On the one hand, it aspires to offer a novel contribution to the interpretation of Schmitt, well beyond a deep-seated reading that draws on his texts of the 1920s. On the other hand, we seek to do so in such a way that this analysis may help us decipher the ambiguous transitions of our time, where unquestionable progressions (such as the gradual accommodation of once-despised forms of kinship and sexuality) are accompanied by (barely visible) processes of exclusion, often disguised by the rhetoric of rights and equality.

BEYOND DECISIONISM: SCHMITT’S INSTITUTIONAL TURN

The identification of Schmitt’s theory with what is labeled “decisionism” is widely regarded as a platitude, if not a truism. Consequently, Schmitt is generally considered as the outstanding theorist of the notion of exception and its relevance for legal and political thought. According to this interpretation, the concept of exception lies at the heart of his theoretical framework as a whole and is the dominant element in the dialectical relationship between normality and exception. Based on this mainstream interpretation, normality is but the conceptual backdrop that allows the exception to emerge as the element that gives life to the legal order. Nevertheless, this can be considered a tenable account of Schmitt’s theoretical view only as long as one refers to the texts he published in the 1920s—that is, the period usually labeled his “decisionist phase...