Kelsen's Theory of Constituent Power

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.

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.