Schmitt vs. Rawls: Points of Convergence

Points of Convergence Between Schmitt and Rawls

• Both authors acknowledge constituent power, a concept absent in Kelsen's work.
• Both recognize two forms of constituent power: one for amending the constitution (secondary/amending power), and another for initiating constitutional changes.
• Both distrust purely procedural approaches to legal theory, emphasizing the importance of substance (content) in valid law. Their specific approaches on this aspect, however, differ.
• Both highlight the crucial importance of "The Political" as an identity-forming element in a polity. This concept, used in the masculine form, distinguishes it from "normal politics."
• Both recognize the interplay between normative and social elements within a legal order.
• Both perceive a core set of values that shape the society, with Schmitt focusing on an "us versus them" aspect (friend-enemy), and Rawls on an "overlapping consensus."

Divergence

• Schmitt's conception of "The Political" emphasizes a static and potentially divisive friend-enemy dichotomy. Rawls sees it as a dynamic and potentially more inclusive space built on overlapping consensus.
• Schmitt's understanding of constituent power is aligned with an absolute sovereign (similar to Hobbes, where constituent power is self-authorizing). Rawls emphasizes a constituent power bound by a concept of justice and fairness.
• Schmitt's idea of political stabilization hinges on self-validation through the sovereign's continued presence; meanwhile, Rawls emphasizes stability based on rational agreement and overlapping consensus.

Nature of Constituent Power

• Schmitt views constituent power as above the law, the very source of it.
• Rawls sees constituent power as bound by a system of justice and fairness, working within the law.
• Rawls connects constituent power to the concept of justice as fairness for those creating the legal order.

The Political

• The political shapes the polity by distinguishing those who belong (insiders) from those who don't (outsiders).
• Schmitt's "political" relies on a definitive friend-enemy distinction, while Rawls' incorporates a broader overlapping consensus allowing for internal pluralism.
• The political manifests in diverse contexts, such as medical/social conflicts.
• The state's role is to manage the potential for political conflict.

Reasonableness and Containment

• Schmitt criticizes Rawlsian reasonableness as a liberal construct excluding alternative perspectives.
• Containment is a recurring theme, with Schmitt seeing it as a "normal" approach, while Rawls views it as a last resort.

Stabilization of the Political

• Rawls's approach to stabilizing the political is centered on the "right reasons," meaning the overlapping consensus emerges from rational agreement.
• Schmitt's stability is validated by the lack of opposition to existing power (the sovereign).

Fluidity of the Political

• Schmitt views the political as static, while Rawls highlights a dynamic progression towards an overlapping consensus.
• Rawls's dynamic "political" involves engagement with the "enemy" to expand consensus.

Basic Structure of the Constitution

• Rawls's perception of the constitution assumes initial agreement on basic rights.
• Schmitt, on the other hand, has a viewpoint of the constitution needing agreement on the application/ consequences of those rights.

Critical Points

• Schmitt's position was associated with Nazi ideology.
• Rawls's conception aligns with liberal democratic principles.