Podcast
Questions and Answers
What does Kelsen argue is necessary when making a decision?
What does Kelsen argue is necessary when making a decision?
- Shared premises among all parties
- Compromise on most issues
- Majority agreement on all matters
- Ultimate truths for decision making (correct)
According to Rawls, what is the basis for deriving binding conclusions?
According to Rawls, what is the basis for deriving binding conclusions?
- Ultimate truths known only to the sovereign
- The authority of historical legal traditions
- Majority rule in all circumstances
- Shared premises and normative argumentation (correct)
What distinguishes Hobbes' view of the social contract from that of Locke and Rousseau?
What distinguishes Hobbes' view of the social contract from that of Locke and Rousseau?
- Hobbes requires a direct vote on all issues
- Hobbes supports individual sovereignty over collective governance
- Hobbes emphasizes safety and protection by the sovereign (correct)
- Hobbes allows greater freedom than Locke
How does Rousseau's perspective on the social contract differ from Hobbes and Locke?
How does Rousseau's perspective on the social contract differ from Hobbes and Locke?
What is a fundamental aspect of the Grundnorm according to the different theories presented?
What is a fundamental aspect of the Grundnorm according to the different theories presented?
What is the primary basis for the validity of law according to Kelsen?
What is the primary basis for the validity of law according to Kelsen?
How does Rawls' view on the legality of law differ from Kelsen's?
How does Rawls' view on the legality of law differ from Kelsen's?
What do both Kelsen and Rawls reject concerning democratic processes?
What do both Kelsen and Rawls reject concerning democratic processes?
What is Kelsen's stance on the intrinsic merit of overarching norms?
What is Kelsen's stance on the intrinsic merit of overarching norms?
In which aspect do Rawls's and Kelsen's theories particularly diverge?
In which aspect do Rawls's and Kelsen's theories particularly diverge?
Flashcards
Ultimate Truths in Decision-making
Ultimate Truths in Decision-making
Kelsen believes that decisions require ultimate truths, not just reasons, to avoid everything being up for grabs and compromise.
Shared Premises for Binding Conclusions
Shared Premises for Binding Conclusions
Rawls argues that normative arguments should start from shared premises to reach conclusions that are widely acceptable.
The Groundlessness of the Grundnorm
The Groundlessness of the Grundnorm
The Grundnorm, the fundamental norm of a legal system, doesn't have a clear origin or justification according to Kelsen.
Constituent Power and the Grundnorm
Constituent Power and the Grundnorm
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Retrospective Reconstruction of the Grundnorm
Retrospective Reconstruction of the Grundnorm
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Kelsen's Grundnorm
Kelsen's Grundnorm
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Kelsen's Formalism
Kelsen's Formalism
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Rawls's Justice-Tracking Law
Rawls's Justice-Tracking Law
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Rawls's Critique of Kelsen
Rawls's Critique of Kelsen
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Shared Aversion to Ultimate Truth in Democracy
Shared Aversion to Ultimate Truth in Democracy
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Study Notes
Kelsen and Rawls on Judicial Review and Law
- Both Kelsen and Rawls support judicial review.
Kelsen's Theory of Law
- Kelsen's theory emphasizes the formal validity of law, not its content.
- The validity of a law hinges on its connection to the Grundnorm (fundamental norm).
- The Grundnorm's intrinsic merit and justice aren't evaluated; only its legality matters.
- Legality hinges on the law's formal structure.
- Kelsen's theory reflects a degree of political realism.
Rawls' Theory of Law
- Rawls' theory connects law to justice.
- Law is valid if the legislative power conforms to the constitution, assuming the populace endorses the constitution's foundational ideals.
- Justice is rooted in fundamental constitutional principles.
- A law can be legally valid yet invalid by justice standards (contrasting Kelsen).
Law and the Reasonable
- Both Kelsen and Rawls oppose the introduction of absolute truths into the democratic process (e.g., establishing religion via vote).
- Certain matters are unsuitable for majority vote.
- Kelsen argues for ultimate truths as a basis for decisions; otherwise compromise becomes boundless.
- Rawls proposes deriving conclusions from shared premises instead of absolute truths, aiming for consensus.
- Rawls champions the normative argumentation process and hope for shared conclusions.
The Groundlessness of the Grundnorm
- Kelsen's Grundnorm's origin is problematic and reflective of existing legal systems.
- The Grundnorm resembles concepts of constituent power from social contract theories.
- Hobbes' perspective: Constituent power seeks protection from the sovereign.
- Locke's perspective: Constituent power contributes to a commonwealth seeking protection of rights (life, liberty, property).
- Rousseau's perspective: Constituent power craves the same freedoms pre-state.
- Legal theorists develop accounts of the Grundnorm retrospectively.
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Description
Explore the theories of Kelsen and Rawls regarding judicial review and the nature of law. This quiz delves into their contrasting views on legality and justice, emphasizing Kelsen's focus on formal validity and Rawls' connection of law to constitutional ideals. Test your understanding of their key concepts and theories.
