Schmitt vs. Rawls: Points of Convergence

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Questions and Answers

What does constituent power refer to in the context of constitutional theory?

The power to amend the constitution without limits

The power to eliminate all forms of legal content

The power to create a constitution from scratch

The power to change the constitution while still being subordinate to it (correct)

How do Schmitt and Rawls view procedural approaches to legal theory?

They believe only procedural compliance defines valid law

They mistrust purely procedural approaches and seek substantive content (correct)

They consider procedural approaches to be superior to substantive ones

They strongly endorse purely procedural frameworks

What concept is central to understanding the political order according to both Schmitt and Rawls?

The relative importance of economic factors in law

The relationship between law and morality

The distinction between insiders and outsiders in a polity (correct)

The role of individual freedom in legal structures

Which of the following best describes Schmitt's view of the 'friend-enemy' distinction?

It defines the boundaries of consensus within a political community Signup and view all the answers

Which philosophical perspective does Rawls emphasize regarding consensus within a political community?

The overlapping consensus as a foundation for political legitimacy Signup and view all the answers

What does the concept of 'The Political' signify in the works of Schmitt and Rawls?

A recognition of the substantive content required for political identity Signup and view all the answers

What is indicated by the term 'basic structure of the constitution' in the context of the content provided?

The underlying principles that define the constitution’s framework Signup and view all the answers

What does Schmitt define as the 'scope of consensus'?

The historical and philosophical artifacts that shape societal beliefs Signup and view all the answers

What concept describes the idea that conflicts can become ultimate and irreconcilable?

Polarization Signup and view all the answers

According to Rawls, what is integral for ensuring fair cooperation among people with different perspectives?

Overlapping consensus Signup and view all the answers

How does Schmitt view the concept of containment compared to Rawls?

It is a normal way of neutralization. Signup and view all the answers

What does Rawls mean by 'stability for the right reason'?

Achieving overlap within a consensus. Signup and view all the answers

What is the nature of constituent power, according to Schmitt?

It is self-authorizing. Signup and view all the answers

What criticism does Rawls face regarding his construct of reasonableness?

It presumes a liberal thinker. Signup and view all the answers

What does Rawls identify as more fundamental than overlapping consensus?

Constitutional consensus Signup and view all the answers

What does the term 'Volksgeist' refer to in the context of law according to the provided content?

The collective spirit of a nation. Signup and view all the answers

What conclusion can be drawn about Rawls' view on justice in relation to the law?

Justice must reflect the most reasonable view. Signup and view all the answers

In Rawls' perspective, what is necessary for laws to be seen as legitimate?

Reflection of shared human experience. Signup and view all the answers

What essential role does political legitimacy play, according to Schmitt?

It is validated through the sovereign's rulings. Signup and view all the answers

What does Rawls argue is the key to growing an overlapping consensus?

Seeking common ground with adversaries. Signup and view all the answers

How is the concept of reasonableness viewed among differing political positions?

It is deemed a liberal construction by Schmitt. Signup and view all the answers

What distinguishes the political domain from personal and familial domains?

The requirement for collective agreement. Signup and view all the answers

Study Notes

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.

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Description

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.