Das Wesen der Verfassung selbst. Origini e ragioni dell’istituzionalismo schmittiano

When and why did Carl Schmitt decide to abandon his original decisionism and to adopt the institutional approach to law which in 1933 he labelled “concrete order thinking”? In dealing with this crucial question, the present article advances two closely related arguments: 1) While the ʻofficial endorsementʼ of legal institutionalism by Schmitt cannot be traced back much earlier than the Nazi rise to power, his doubts and the consequent change of mind about the ordering potential of decisionism go back to the second half of the 1920s and appear to be in close connection to the concept of “qualitative total state” he was developing in those same years; 2) Schmitt shares with the theorists of legal institutionalism, and mostly with Maurice Hauriou, the fundamental aim of a legal order able to preserve and reproduce the ordering potential of everyday interactions as well as the normalising function of a well-defined set of timetested communitarian practices, a creative energy that both Schmitt and Hauriou consider to be i) essentially inherent to the social (and ultimately resting on personal beliefs and convictions), ii) in no way reproducible by political means or political intervention, iii) absolutely necessary for the effectiveness of any legal order.