Ambiguous Sovereignty: Political Judgment and the Limits of Law in Kant’s Doctrine of Right

Abstract

AbstractKantian legalism is now the dominant scholarly interpretation of Kant and an important approach to legal and political philosophy in its own right. One notable feature is its construal of the relationship between law and politics decisively in law’s favour: Law subordinates politics. Political judgment is constrained by and only permissibly exercised through law. This paper opposes this subordination through a close analysis of an ambiguity in Kant’s conception of sovereignty. Understanding this ambiguity requires seeing that, for Kant, law cannot subordinate the sovereign’s political judgment because it is a condition which makes a legal system possible. Kant was not an exacting legalist, but a practical reasoner struggling with the pressures politics imposes on finite beings. Through discussion of a leading contemporary approach, and close engagement with its historical source, the paper raises new considerations about the relevance of political judgment in the relationship of law and politics.