In order to see the important role of political judgment in The Doctrine of Right, we need to look carefully at the role of the sovereign. There is a core and systematic ambiguity in Kant’s concept sovereignty which can best be understood as being resolved by political judgment and in relation to a political conception of sovereignty, not through legal judgment and a legal conception. Now, to say that there are ambiguities in the concept of sovereignty would not strike political philosophers as being anything new.Footnote 14 The most frequently discussed ambiguities in the notion of sovereignty involve either the relation of the state to the sovereign, or that of the people to the sovereign state, and one finds these in The Doctrine of Right too.Footnote 15 But there is a different ambiguity in Kant that relates to the relationship of law and politics, and it concerns the scope of the sovereign’s authority in relation to the other authorities of the state.Footnote 16
As noted above, Kant distinguishes three state authorities – sovereign or legislative, executive and judicial – and three persons who each hold one of these authorities – sovereign or legislator, regent and judge. Each authority has different powers in the Kantian state. Sovereign authority gives general or universal laws for the state.Footnote 17 The laws are ‘the same (…) for all and all for each’ meaning that the laws are given by all (united) and to all (general). For this reason, sovereign authority belongs to the general united will of the people, though vested in the person of the legislator.Footnote 18 The executive authority provides coercive physical power and other incentives to enforce the laws. It is held by the person of the regent, who is also called the governor, the directorate or government.Footnote 19 The regent provides directives and decrees, not laws, and governs the state. The regent is the only authority which can exercise coercion and punish, but, as an agent of the state, they are subject to the laws of the sovereign.Footnote 20 The judicial authority provides verdicts on applications of the law to particular cases. As with the executive authority, the judicial authority is constrained by the laws of the sovereign and may not deviate from them.Footnote 21 These three authorities are essential for the establishment of a state and are ‘dignities’, meaning they are ‘eminent estates without pay’ or what we could call political or civil statuses.Footnote 22
Kant’s discussion of the three authorities has been noted for its obscurity.Footnote 23 One reason for this may be that when considered in relation to these three authorities of the state, Kant’s concept of sovereignty appears to be ambiguous between two conceptions. The first is the conception of sovereignty as public authority, which refers to the three authorities of the state taken together:
The three authorities in a state, which arise from the concept of a commonwealth as such (res publica latius dicta), are only the three relations of the united will of the people, which is derived a priori from reason. They are a pure idea of a head of state, which has objective practical reality. But this head of state (the sovereign) is only a thought-entity (to represent the entire people) as long as there is no physical person to represent the supreme authority in the state and to make this idea effective on the people’s will.Footnote 24
In this passage, the sovereign – as a thought entity – represents the people as united in a commonwealth and so contains within it the three authorities.Footnote 25 This thought entity is then represented by a physical person, the sovereign, and so this physical person also represents public authority in general. This person, Kant goes on to say, could be an autocrat, or an aristocratic or democratic assembly.Footnote 26
The second, opposing, conception of sovereignty is sovereignty as legislature. Instead of conceiving of sovereignty as containing all three authorities, this conception conceives of sovereignty as only one of the authorities: ‘the sovereign authority (sovereignty) in the person of the legislator’.Footnote 27 This sovereign authority only has part of the authority of the state, that of legislation. As a consequence, Kant describes the sovereign as interacting with the other state authorities: ‘The sovereign may take the regent’s authority away from him…’ and ‘the sovereign must also have in his power, in this case of necessity (casus necessitatis), to assume to role of the judge (to represent him) and pronounce a judgment…’Footnote 28 This sovereign holds not public authority in general but only one part of public authority, that of legislation.Footnote 29
This ambiguity between sovereignty as public authority and sovereignty as legislature is carried over into Kantian legalism. I say ‘carried over’ because it is not actively theorised by Kantian legalists, but nonetheless remains present in their texts. Jacob Weinrib is an exception in noting the ambiguity, but his purposes lead him away from discussing it further.Footnote 30 More often the ambiguity is carried over without comment. As an example, Ripstein states that ‘the three branches: legislature, executive and judiciary. Together, they comprise the sovereign’.Footnote 31 Yet he also writes ‘the sovereign (legislature) also has the power to tax and to spend monies on the creation of public spaces…’Footnote 32 I suspect the ambiguity is untheorized simply because the legalist approach calls for precise definition and delineation of important concepts, and Kant’s imprecision on this point can be chalked up to poor drafting, his self-confessed rushed exposition, or The Doctrine of Right’s troubled publication history.Footnote 33 Yet it is because I noticed that this ambiguity is carried over, even into the very phrasing and formulation of these texts, that I first began to suspect it had systematic importance.
If confronted by the ambiguity, however, a Kantian legalist might attempt to argue that with a more precise delineation of terms the ambiguity could be eliminated. There are two approaches that are most promising for this task, but neither is successful. The first is to draw on the distinction between a public office and the person who holds it, as discussed in Section I in the context of administrative judgment. Using this distinction, one could argue that there is no ambiguity in Kant’s concept of sovereignty, it is just that Kant sometimes refers to the office and at others to the person. However, the ambiguity transcends this distinction. I have highlighted above how when conceiving of sovereignty as public authority, the sovereign is a thought entity that comprises the three authorities taken together which is itself represented by a physical person. By contrast, when sovereignty is conceived as legislature, the sovereign authority as an office is represented in the person of the sovereign (legislator). In other words, Kant conceives of both sovereignty as public authority and sovereignty as legislature as both an office and a person and so the ambiguity remains.Footnote 34
The second approach is to argue that the concept of representation can be invoked to defuse the ambiguity.Footnote 35 As again discussed in Section I, for Kant and for Kantian legalists, the sovereign represents the general united or omnilateral will. One might think there is some way to explain the ambiguity away by these means. One might think, for example, that because the sovereign as legislature is closely connected to the general united will, that this is what needs to be represented by a physical person, and this physical person is the sovereign as public authority; however, this would be to miss the point. The question is, what is the idea or thought entity of sovereignty that is represented? Is it the conception as one legislative authority, or the conception of three public authorities together?