Why does the law want us to be normal? Schmitt's institutionalism and the critique of the liberal legal order

This article aims to explore the relation between the legal order of the liberal state and its tendency to protect the boundaries of normality, that is, roughly speaking, a consistent set of widespread practices and normative standards within a political community. If the idea that some sort of normality unavoidably represents the innermost substance of liberal constitutions is hardy new, we will rather be concerned with law’s effort to conceal how normality is nurtured. We will capitalize on Carl Schmitt’s critique of the concept of law on which the liberal state is founded. Yet, we will unearth an unknown and underestimated Schmitt, namely, the one who in the 1930s set forth a thought-provoking institutional theory of law. We will suggest that the overemphasized Schmitt of the 1920s should be partially dismissed and that more attention should be drawn to his reconsideration of decisionism in the light of institutionalism. We will claim that, notwithstanding Schmitt’s deplorable support for Nazism, his rediscovery of institutionalism allowed him to strengthen his critique of liberalism. We will finally highlight the import of this view by considering a case in point, i.e. how today’s liberal regimes are contributing to the enforcement of new standards of homonormativity.