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Questions and Answers
What does Kelsen argue is necessary when making a decision?
What does Kelsen argue is necessary when making a decision?
According to Rawls, what is the basis for deriving binding conclusions?
According to Rawls, what is the basis for deriving binding conclusions?
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?
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?
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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?
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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?
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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?
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What do both Kelsen and Rawls reject concerning democratic processes?
What do both Kelsen and Rawls reject concerning democratic processes?
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What is Kelsen's stance on the intrinsic merit of overarching norms?
What is Kelsen's stance on the intrinsic merit of overarching norms?
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In which aspect do Rawls's and Kelsen's theories particularly diverge?
In which aspect do Rawls's and Kelsen's theories particularly diverge?
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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.
