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

Law and Philosophy https://doi.org/10.1007/s10982-023-09486-w  The Author(s) 2023 TOM BAILEY AMBIGUOUS SOVEREIGNTY: POLITICAL JUDGMENT AND THE LIMITS OF LAW IN KANT’S DOCTRINE OF RIGHT (Accepted 15 June 2023) ABSTRACT. Kantian 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. This paper addresses the relationship between law and politics in the context of legalistic readings of Kant’s political philosophy, as found in its most mature statement The Doctrine of Right. This ‘Kantian legalism’ refers to the recent interpretation and development of Kant’s political philosophy that is best exemplified in Arthur Ripstein’s Force and Freedom, Sharon B. Byrd and Joachim Hruscka’s Kant’s Doctrine of Right: A commentary,1 and subsequent work influenced by these two texts. There the relationship between law and politics is decisively in law’s favour: Law subordinates politics. Political judgment is constrained by and only permissibly exercised through law. In other words, political judgment has its place, but this 1 Arthur Ripstein, Force and Freedom: Kant’s legal and political philosophy (Cambridge (MA): Harvard University Press, 2009); B Sharon Byrd and Joachim Hruschka, Kant’s Doctrine of Right: A commentary (Cambridge: Cambridge University Press, 2010). TOM BAILEY place is within the legal order. This is now the dominant approach to Kant’s political philosophy in English and it is not only a scholarly project. Kantian legalism is now proposed as a liberal and republican approach to legal and political philosophy in its own right.2 Ripstein is as engaged in the philosophy of law as well as historical scholarship.3 Moreover, Kantian legalism is applied to contemporary questions in the philosophy of law and politics.4 I have a good deal of admiration and sympathy for Kantian legalism, so my project in this paper is not oppositional, but cautionary. I cannot endorse the full-throated subordination of politics to law, nor do I think Kant himself would either. Kantian legalism leaves out something distinctly political in Kant which makes law possible. This is the role of political judgment, which I highlight through a close analysis of Kant’s conception of sovereignty. Only a political, rather than legalist reading explains how an ambiguity in Kant’s conception of sovereignty is resolved through judgment. The substantive consequence of this for our reading of Kant is a reappraisal of the nature of his commitment to the rule of law. It should also give us pause before reading Kant’s political philosophy as exacting legalism. I suggest it is better read as a sustained work of practical reasoning which embraces the limitations of all human thought and struggles against the pressures that politics imposes on us as finite beings. It is only judgment, not law, that gives human beings a chance to manage these pressures. This thought is left out of Kantian legalism because it doesn’t attend to what is ambiguous and political in Kant’s concept of sovereignty. Through this discussion of a leading contemporary approach to legal and political philosophy, and close engagement with its historical source, I hope to raise new considerations about the role of political judgment in our thinking about the broader, general, and perhaps perennial question of the relationship of law and politics. 2 Japa Pallikkathayil, ‘Neither Perfectionism nor Political Liberalism’, Philosophy and Public Affairs, 44 (3) (2016): pp. 171–196; Louis-Philippe Hodgson, ‘Kant on the Right to Freedom: A Defense’, Ethics, 120 (4) (2010): pp. 791–819. 3 Arthur Ripstein, Private Wrongs (Cambridge (MA): Harvard University Press, 2016). 4 For example, theorists have attempted to understand how Kant’s philosophy could ground welfare systems. For discussion and criticism of some of these views, see Luke Davies, ‘Kant on Welfare: Five Unsuccessful Defences’, Kantian Review, 25 (1) (2018): pp. 1–25. See also Japa Pallikkathayil on issues related to bodily autonomy such as the right to sell or donate organs, ‘Persons and Bodies’, in S. Kisilevsky & M. Stone (eds.), Freedom and Force: Essays on Kant’s Legal Philosophy (Oxford: Hart Publishing, 2017), pp. 35–54. AMBIGUOUS SOVEREIGNTY I. KANTIAN LEGALISM Legalism is an approach to political and legal philosophy characterised by the subordination of politics to law.5 Political problems are resolved by subjecting them to legal processes, and rightful political action takes place within the constraints of law. More than this, the idea is that rightful political action, especially state action and power, ought to be exercised through law and legal processes. I introduce and use the term ‘Kantian legalism’ here to refer to readings of Kant’s political philosophy, especially in The Doctrine of Right, along these lines.6 These have become especially influential within Kant scholarship in the last decade.7 Kantian legalists differ on the details, but they all agree that, for Kant, the freedom and equality of all citizens is realised through law and the legal state; the Rechtsstaat. The freedom and equality of citizens cannot be achieved in the state of nature. This is because in the state of nature the relations between individuals are in some way problematically unilateral when it comes to rights claims such as property and contract. The thought is that if individuals are free and equal, then there is a problem to explain how the ability of any individual to place others under obligations through rights claims (such as to not interfere with an object by claiming that object as my property) can be compatible with the equal freedom of all. The solution to this is law grounded on the omnilateral or general united will. The sovereign of the legal state represents this will while making laws and thus the law is not unilateral, and the law can then underly the actions of individuals. The state is structured to achieve this end which Kant calls a rightful condition. As Thomas Sinclair puts it: ‘The most important means by which this is achieved is that (...truncated)