Legalism is an approach to political and legal philosophy characterised by the subordination of politics to law.^{Footnote 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.^{Footnote 6} These have become especially influential within Kant scholarship in the last decade.^{Footnote 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 there exist legislative, judicial, and executive roles in the Kantian state that are defined by obligations to create and sustain through law a rightful condition’.^{Footnote 8} It is thus law and legal processes which secure the freedom and equality of citizens according to Kantian legalism. The effect of this on politics is to subordinate it to law. Free relations between individuals are guaranteed only insofar as politics is subjected to legal processes which are omnilaterally legitimated.

Kantian legalism thus contains substantive commitments, such as to the rule of law. But it is also a philosophical approach that holds a particular view about the purpose of Kant’s political and legal philosophy. Kantian legalism holds that the principles Kant derives are not only realised through law, but that Kantian political principles are the principles of legal systems. The Doctrine of Right is taken to be the elaboration of the philosophical principles that comprise the ideal legal system that would fully realise freedom and equality. The task of politics is to apply these a priori principles in the real world and, when this is done, we achieve a rightful condition. Importantly, rightful politics then becomes a matter of specifying these a priori principles in practice by making law, and all other political action needs to take place within the constraints of this law. Rightful politics becomes a fundamentally legal matter.

Unsurprisingly, then, law is central to Kantian legalism, but what of political judgment? I have signalled that my challenge to Kantian legalism will be to stress the relative importance of political judgment as against that of law in The Doctrine of Right, so what does Kantian legalism say about judgment? As I see it, judgment has three roles within Kantian legalism but each of these roles shares a common dependence upon the existence of a legal order, in virtue of which each of these kinds of judgment might be described as legal and not political. The first role of judgment is as verdict: The decision of a court is ‘a judgment’.^{Footnote 9} Verdict is the judgment, ‘an individual act of public justice’, by which the judge applies positive law in a particular case.^{Footnote 10} That is, the verdict of a judge resolves Kant’s practical syllogism: ‘These are like the three propositions in a practical syllogism: the major premise, which contains the law of that will; the minor premise, which contains the command to behave in accordance with the law, that is, the principle of subsumption under the law; and the conclusion, which contains the verdict (sentence), what is laid down as right in the case at hand’.^{Footnote 11}

Verdict is perhaps the paradigmatic example of legal judgment, but the second role for judgment in Kantian legalism is administrative judgment. State officials are able to make judgments that individuals would not because they hold a legally defined public office that authorises them to make certain judgments. As the office is legally defined and the law is conceived as omnilateral, what would be problematically unilateral for the private person to do is not problematic for the public office holder.^{Footnote 12} The final and third role for judgment in Kantian legalism is legislative judgment. This is the kind of judgment involved in omnilateral public law-making, in which a priori principles of law are specified in positive legislation.

Each of these roles for judgment is premised on the legal order. That is, they are judgments that take place within established institutional and legal constraints – principally the separation of authorities. The judge only passes verdict on laws passed by the legislature, state officials only judge within the constraints of their offices as defined in law by the legislature, and the legislature does no more than pass law as one of three state authorities. Rightful political judgment is, in this sense, legal judgment according to Kantian legalism. Every political judgment can be given effect through law because rightful political judgment always operates within the legal order of the Rechsstaat.^{Footnote 13} It is this feature of Kantian legalism which my argument is intended to challenge. Rightful political judgment need not be given effect through law, nor operate within the legal order on my reading of The Doctrine of Right. In particular, the rightful political judgment of the sovereign need not be legal. Indeed, the legal order itself depends on the sovereign’s political judgment, not the other way around.