Kelsen's Theory of Constituent Power

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Questions and Answers

According to Rawls, what primary function does constituent power serve within a society?

To establish a system of legal precedents that can be flexibly applied.

To operate outside of the positive legal order, allowing for radical societal change

To create a structure of mutually agreed-upon principles ensuring societal stability. (correct)

To act as a mechanism for enforcing pre-existing societal norms.

How does Rawls' conceptualization of constituent power differ from Kelsen's?

Rawls views it as a legally unbounded force, while Kelsen sees it as a process of democratic agreement.

Rawls sees it as foundational to the legal structure, while Kelsen views it as part of the social contract process.

Rawls positions it as an element of societal justice, whereas Kelsen considers it a fundamental legal act. (correct)

Rawls regards it as a way to create stable legal principles, while Kelsen sees it as a way to create mutual agreements.

Which best describes the limitations on constituent power according to the theories of Rawls and Kelsen?

Kelsen believes it is independent of legal constraints, while Rawls sees it as bound by principles of justice. (correct)

Both Kelsen and Rawls consider that it is unconstrained due to the power's fundamental role.

Both consider it equally constrained by pre-existing legal frameworks.

Kelsen considers it to be bound by justice, while Rawls considers it free from all constraints.

What is a core difference in the objective of constituent power according to Kelsen and Rawls?

Rawls prioritizes establishing societal justice, while Kelsen prioritizes creating a functional legal order. Signup and view all the answers

In what context does Rawls position the role of 'the people' in the exercise of constituent power?

as a collective entity with the aim of establishing a just political order Signup and view all the answers

According to Kelsen, what is the primary characteristic of constituent power?

It is fundamentally a presupposition needed to establish the legal order. Signup and view all the answers

How does Kelsen view the relationship between the constituent power and a constitution?

The constitution is the outcome of the exercise of the constiuent power. Signup and view all the answers

Which description best represents Rawls's perspective on constituent power?

A collective power rooted in justice and fairness. Signup and view all the answers

How does Rawls's theory of constituent power differ from Kelsen's?

Rawls sees constituent power as constrained by justice and fairness, unlike Kelsen, who sees it as unconstrained. Signup and view all the answers

What is the significance of the 'original position' in Rawls's theory of constituent power?

It is a thought process where the principles of justice that guide the constitution are agreed upon. Signup and view all the answers

Which statement best describes Kelsen's view of the constitution within his theory of constituent power?

The constitution is a starting point of a new order, not derived out of a previously existing order. Signup and view all the answers

According to Rawls, what is the primary objective of constituent power?

To establish a legal order based on fairness and democratic legitimacy. Signup and view all the answers

What key distinction separates the perspectives of Kelsen and Rawls?

Whether constituent power is subject to prior legal or moral constraints. Signup and view all the answers

Study Notes

Kelsen's Constituent Power

Kelsen's theory distinguishes between constituent and ordinary state power.
Constituent power creates the constitution; ordinary power operates within constitutional limits.
Constituent power is not legally limited; it exists outside the legal order.
This power can establish rules for both constitution-making and subsequent ordinary power exercise.
The constitution is a creation, not a constraint.
Constitution creation establishes a new legal order, not an amendment to existing ones.
The act of establishing the constitution isn't subject to the laws it subsequently creates.
Kelsen believed no higher legal norm exists than the constitution within the positive legal order.
Constituent power is a pre-existing condition of the legal order—essential for its creation but not part of its system.

Rawls's Constituent Power

Rawls's theory, unlike Kelsen's, frames constituent power within justice and fairness, drawing on "political constructivism" and the "original position."
Rawls emphasizes a well-ordered society based on shared justice principles.
Constituent power is the collective power of citizens agreeing to a fundamental charter (social contract).
This isn't a power above the law, but a mechanism for establishing a just legal order.
Rawls's constituent power is constrained by fairness, justice, and equality.
Rawls emphasizes democratic legitimacy, with constitutional principles reflecting the most reasonable agreement achievable.
Power directly links to the collective will of the people for a just political order.
Rawls's approach aims for a stable society where rules are accepted by all members in good conscience.
A process of reasoned, mutually agreed-upon principles underpins the societal structure.

Key Differences Summarized

Kelsen sees constituent power as logically prior and outside the legal order, fundamentally creating the constitution; Rawls connects it to justice and fairness, with a focus on societal construction.
Kelsen's constituent power is unrestricted by existing legal constraints; Rawls's is constrained by justice and equality principles.
Kelsen views constituent power as the act of creating a legal order; Rawls sees it as part of the democratic process to construct a just and stable society.
Kelsen's focus is establishing a legal system; Rawls's focuses on creating a just and stable social order.

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Description

Explore the core principles of Kelsen's theory of constituent power, which distinguishes between the power to create a constitution and the ordinary power bound by it. This quiz delves into the implications of constituent power existing outside of legal order and its significance in political theory.