Justice and Legitimacy: Rawls,Schmitt and the Normativity of Law

Abstract

This article argues that the later work of John Rawls offers the best hope for establishing a justifiable and sustainable concept of liberalism. The context for this concern is the work of Carl Schmitt, whose attack on liberal legal practices exposes a deep weakness in most liberal approaches to the concept of law. The divide between positivism and normative legal approaches (expressed in the debates among H.L.A. Hart, Ronald Dworkin, and Hans Kelsen) seems to wither in the face of Schmittian critique, leaving only a depoliticized husk of legal practice. Rawls offers a different approach, a justificatory regime capable of engaging the problem of the sovereign exception while preserving the force of liberal normativity.