Governing through normality: law and the force of sameness

This article claims that the existence of social groups hinges on the production of sameness, which allows distinguishing members from non-members. Sameness is described as a shared set of standards whereby social subjects can provide mutually understandable accounts of themselves, their practical activities and their environment. The author argues that sameness is not an intrinsic property of groups but is produced within the very practices that it is meant to support. By building on a Wittgensteinian interpretation of meanings and rules, he illustrates how sameness is an intrinsic feature of the process through which the members of a practice construct the latter by issuing its rules and establishing roles. At the same time, the article draws on Carl Schmitt’s institutional thinking, elaborated in the 1930s, and particularly his analysis of the relevance of normality to the existence of law. In doing so, the author claims that sameness and normality are key, co-original aspects of there being an effective legal order. Against this analytical background, the article goes on to claim that the legal orders typical of liberal regimes hold sway on social practices through the protection of normality and the revision of its boundaries as new challenges arise. As a case in point, the author examines the hypothesis that today’s push for legal recognition of same-sex marriage could be interpreted as an immunity response of liberal regimes to homosexual sexualities’ former critique of traditional models of kinship.