Rawls, Kelsen and the Law. Discussing Ferrara’s Sovereignty Across Generations

Building on Ferrara’s rejection of Kelsen’s theory of validity, I argue that Ferrara conflates two worries that animate Kelsen: one concerning the analysis of legal phenomena, the other concern- ing the justification of moral values. I argue that while it is true that Kelsen sees moral disagree- ments as intractable, in contrast with the Rawls of TJ and of PL, the content-independent validity of the law addresses a different question. Conflating the two, Ferrara ends up attributing to Rawls the thesis that unjust (unreasonable) laws are not laws or, to put it another way, that an unjust (unreasonable) constitution is not a constitution. I claim that Rawls does not maintain such a theory. However, if Rawls never conflated law and just law, then changes in the justification of the principles seem unrelated to constituent power.