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.

Explore the philosophical intersections between Carl Schmitt and John Rawls. This quiz examines their views on constituent power, the role of 'The Political,' and the blend of normative and social elements in legal theory. Delve into the nuances that underline their similarities and differences.