The bumpy road to institutionalism : Schmitt's way-out of decisionism -- Exploring Schmitt's institutionalism : institutions and normality -- Institutionalist decisionism : law as the shelter of society -- Institution and identity : reassessing Schmitt's political theory -- Schmitt vs. Kelsen : the social ontology of legal life -- Schmitt vs. Hauriou : the politicization of institutionalism -- Schmitt vs. Romano : institutionalism without pluralism? -- Schmitt vs. Mortati : the concretization of the concrete order -- The impossibility of legal (...) indeterminacy -- The inconceivability of legal pluralism. (shrink)

This article deals with the issue of resignification to advance a hypothesis on the way in which social practices are transformed with recourse to the language of institutions. It first discusses the transition from gay liberation to same-sex marriage equality by exploring the trajectory of homosexuals’ rights claims. The article continues by providing a theoretical interpretation of what brought this shift about, that is, what the author calls a movement ‘from the street to the court’: in both civil law and (...) common law jurisdictions, legal means are increasingly being used by individuals and groups to make their claims audible to political institutions and to society at large. Then, an analysis is offered of the shape that social struggles take when socio-political claims are articulated with recourse to the legal language. The conclusion is that reliance on the law as a device to achieve political goals and construct same-sex group identity risks producing but a feeble resignification of the conventional... (shrink)

In this article I contend that the re-emergence of religion in Western liberal states is a feature of a much broader phenomenon, namely, the re-establishment of legal pluralism whereby various social actors claim to be the legitimate producers of their own law. To prove this, I first offer an account of secularization as the successful attempt of modern states to dismantle a legal-pluralist system. Based on this, I argue that the reviviscence of religions is the reviviscence of their practical side: (...) religious practices tend to be perceived by religious group members as providing guidance for conduct, one that challenges the rules of the state legal order and its monistic structure. Finally, by exploring the issue of same-sex union recognition, I defend the claim that, in a truly post-secular society, the state should allow a multiplicity of relationship-recognition models that reflect and meet different interests and needs. (shrink)

This article centres on the legal recognition of same-sex marriage with a view to exploring the issue of unspeakability; that is, the condition whereby some questions cannot be articulated because of a lack of words. More specifically, the article will explore what happens to those social practices that are not given legal speakability and thereby legal recognition/protection. To this end, I first focus on how words are produced in the sphere of everyday life and their dependence on the existence of (...) a widespread normality. I then discuss how the law sees to the preservation and the reproduction of normality by providing a set of categories which are made available to law-abiders to settle disputes when they arise. In doing so, I elucidate the twofold role played by law as both a selective and a creative device. To cast some light on the particular way law operates, I discuss an important decision by the Italian Constitutional Court in 2010, which provides a telling example of how legal officials are able to seal off the set of legal categories and to leave some issues in the sphere of the unspeakable. I then unearth a paradox: while unspeakability reveals a condition of powerlessness, the acquisition of speakability could bring about even harsher exclusionary effects. I conclude by arguing that the entry into the sphere of official law is always a Janus-faced achievement, but can play as an effective instrument of critique. (shrink)

I tackle some major criticisms addressed to Pierre Bourdieu’s notion of habitus by foregrounding its affinities with Ludwig Wittgenstein’s notion of rule-following. To this end, I first clarify the character of the habitus as a theoretical device, and then elucidate what features of Wittgenstein’s analysis Bourdieu found of interest from a methodological viewpoint. To vindicate this reading, I contend that Wittgenstein’s discussion of rule-following was meant to unearth the internal connection between rules and the performative activities whereby rules are brought (...) into life. By portraying rules as tools that allow agents to stabilize and renegotiate practices, I illustrate the active role social agents play in the production of shared accounts of practices. I conclude by showing that, if viewed through this prism, the habitus proves to be meant to provide guidance on how social theory helps historicize and denaturalize the social world. (shrink)

Queer critics talk more and more about a normalization process whereby early lesbian and gay struggles against traditional values and institutions are being replaced by the pursuit of inclusion within mainstream society. The ‘assimilation’ of same-sex practices, critics contend, lowers the critical potential of homosexuals’ claims and marginalizes other less acceptable forms of sexualities. The present article contributes to this literature by tracing the roots and dynamics of normalization. It makes the claim that heteronormative categories infiltrated homosexual culture well before (...) the spread of neoconservative gay movements and produced inner distinctions intended to exclude those who did not fit intergroup classifications. It then maintains that this analysis casts some interesting light on the current quest for gay rights, and in particular for same-sex marriage. By doing so, this article aims to tackle the broader question of how to produce societal changes able to circumvent rearguard reactions from the dominant culture. (shrink)

Philosophy & Social Criticism, Ahead of Print. In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Against this view, I argue that this trend – which some scholars call ‘juridification’ – can be key to giving life to new forms of politics. First, I show why juridification is a political more than a legal process. Second, I illustrate recent (...) critiques of the dangers inherent in the particular type of juridification that involves the growing use of rights. Third, while concurring with these critiques, I make the case that other facets of juridification are often underrated that can ignite a novel kind of politics. On this account, I go on by elaborating on the idea of self-organization of social groups vis-à-vis the state that is entailed in this notion of politics. Finally, I discuss the recognition of non-conventional family networks to exemplify how a politics of juridification could work. The conclusion is that, while juridification calls for a thorough revision of the tasks of politics, it does not thwart it. Rather, traditional representative politics could and should take stock of how it involves social actors in the creation of new bodies of regulation. (shrink)

In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Aga...

ABSTRACTThis article offers an unconventional interpretation of Carl Schmitt’s conception of the political. It first identifies two alternative readings – an ‘exceptionalist’ and a ‘concretist’ one – to make the claim that in the late 1920s he laid the foundations for a theory of politics that overcame the flaws of his theory of exception. It then explains why the concretist reading provides an insightful key to Schmitt’s take on the relationship between politics and law as a whole. Despite this, the (...) chief aim of this analysis is not interpretive. Rather, the article claims that such a paradigm change was related to Schmitt’s pondering on the elements that were menacing to draw the experience of modern statehood to an end even more seriously than any upheavals and revolutions. For he came to the conclusion that the mere claim to political self-sufficiency on the part on non-state social entities was able to defy the idea of the state as the political entity par excellence. While these reflections urged Schmitt to reformulate many features of his conception of the political, the article contends that this particular juncture in his production sheds light on a crucial feature of contemporary politics. (shrink)

This article takes issue with the practical and the cognitive roles of normality within political life and its relevance to the constitution of the groups that comprise a political community. From a practical viewpoint, normality fosters standards of correctness; from a cognitive viewpoint, these standards are what allows individuals to perceive themselves, and to be recognized, as group members. To achieve this aim, the article delves into Carl Schmitt’s and Pierre Bourdieu’s accounts of how politics is a field where semantic (...) struggles take place that are meant to impose alternative visions of the social world. Different types of connections and relationships among individuals and groups shore up a specific vision of the social world. The article concludes by saying that awareness of the normalizing effects of politics is key to producing a counter-politics meant to defy the naturalization and de-historicization that every political representation furthers. (shrink)