Transcending an Ossified Binary

Abstract

AbstractChapter 3, ‘Transcending an Ossified Binary: Political Liberalism on Constituent Power’, places the constitutional theory of John Rawls in a virtual dialogue with Kelsen’s paradigm of ‘pure law’ and with Schmitt’s legal philosophy. The dialogue is built as an investigation of the several points of convergence and divergence of Rawls with each of these legal theorists (Sections 1 and 2). In the end the received wisdom of a radical opposition of these two constitutional models, especially concerning the relation of the law to constituent power, is challenged by a refreshing look from a Rawlsian perspective. If compared with Rawls’s normative view of the constitution as responding to a political conception of justice, Kelsen’s and Schmitt’s approaches appear as two variants of a ‘realist’ take on the cogency of the constitution and law in general. Both share a view of the constitution as self-validating and beyond substantive questioning. For Rawls, as shown in Section 3, constituent power instead always operates ‘under law’ (Michelman). Section 4 identifies the standard of ‘the most reasonable for us’ as the form of normativity that could bind constituent power, consistently with the ‘political, not metaphysical’ design of Political Liberalism. The innovative philosophical status of this normative standard and its relation to public reason are elucidated. Then, in the concluding subsection, a ‘liberal principle of constitutional legitimacy’ is introduced in order to supplement the liberal principle of legitimacy, argued to account primarily, if not exclusively, for the legitimacy of the exercise of constituted powers.