As well as a separation of the three authorities, Kant also establishes a hierarchy of the three authorities with the sovereign at the top. Beyond the direct functions of the state authorities with regard to the establishment of law, the sovereign legislature holds powers over the other two authorities which are not matched with symmetrical powers. This creates a hierarchy, not equality, between the three separate authorities. Consider the following passage, which I referenced in extract above:
The sovereign can also take the regent’s authority away from him, depose him, or reform his administration. But it cannot punish him (and the saying common in England, that the king i.e. the supreme executive authority, can do no wrong, means no more than this); for punishment is, again, an act of executive authority, which has the supreme capacity to exercise coercion in conformity with the law, and it would be self-contradictory for him to be subject to coercion.Footnote 54
The first sentence shows that the sovereign has authority over the regent – i.e. the person who holds executive authority – in a right to remove, depose or reform them. The sovereign legislature’s authority here does not manifest in a right to exercise executive authority against the regent, but to strip their authority rendering them no more than a private citizen.Footnote 55 The sovereign has the authority to decide who can exercise executive authority and, to that extent, how they exercise it.
The Doctrine of Right also gives the sovereign legislature authority over the judge or judicial authority. First, the sovereign has power of appointment of judges: ‘neither the head of state nor regent can judge, but can only appoint judges as magistrates’.Footnote 56 Second, in certain circumstances or ‘cases of necessity’ the sovereign has the power to ‘assume the role of judge’ and decree a different sentence to that pronounced by the judge.Footnote 57 Finally, the sovereign also has the right to grant clemency of which Kant says: ‘This right is the only one that deserves to be called the right of majesty’.Footnote 58 The right of clemency is limited. Firstly, it is restricted to cases of ‘wrongs done to himself’ i.e., to the sovereign, and never ‘crimes of subjects against one another’.Footnote 59 One plausible interpretation of this restriction is that the right of clemency only applies in the case of a crime against the state, not a private person, or crimes of public law, and not private law. Secondly, even then the right of clemency may not be invoked if it ‘could endanger the people’s security’.Footnote 60 Nonetheless, the right of clemency is a second right of the sovereign legislature to annul the verdict of the judge. There are no symmetrical powers for the judge over the sovereign legislature. Nor are there such powers for the regent.
Kant has a principled reason for endorsing this hierarchy of authorities as well as the separation of authorities. This is the necessity of the state as the condition for possible law-making. To see why this is the case, it will be helpful to consider the example of Kant’s ‘population-wide murder conspiracy’, before moving on to the justification in general.Footnote 61 It is worth quoting in full:
Accordingly, every murderer – anyone who commits murder, orders it, or is an accomplice in it – must suffer death; this is what justice, as the idea of judicial authority, wills in accordance with universal laws that are grounded a priori. – If, however, the number of accomplices is so great that the state, in order to have no such criminals in it, could soon find itself without subjects; and if the state still does not want to dissolve, that is, to pass over into a state of nature, which is far worse because there is no external justice at all in it (and if it especially does not want to dull the people’s feeling by the spectacle of a slaughterhouse), then the sovereign must also have it in his power, in this case of necessity (casus necessitatis), to assume the role of judge (to represent him) and pronounce a judgment that decrees for the criminals a sentence other than capital punishment, such as deportation, which still preserves the population. This cannot be done in accordance with public law but it can be done by executive decree [Machtspruch] that is, by an act of the right of majesty, which as clemency, can always be exercised only in individual cases.Footnote 62
In this case, the judge is confronted by a murder conspiracy encompassing the whole, or nearly whole, population. By law the rightful judgment is to execute each of the citizens. The reason for this is that for the crime of murder, no punishment is adequate but that the perpetrator die.Footnote 63 Earlier in the section from which this passage is taken, Kant also states that the law of punishment in general is a categorical imperative.Footnote 64 So it is not only that by positive, or what Kant calls subjective, law that the judge ought to pronounce this verdict, but by objective law, grounded a priori and established by the sovereign legislature.Footnote 65 Following this, the executive regent ought to carry out the executions. This course of action would be the three authorities performing their respective functions in accordance with the separation of authorities. The sovereign establishes the lawful punishment for murder in accordance with a priori principles; the judge applies the law through their verdict; and the executive regent carries out the extreme coercive function of executing the entire population. Yet Kant still holds that the sovereign must intervene via a ‘Machtspruch’ to prevent this from happening. How can this be justified and made compatible with the justification for the separation of authorities?
The key is to see how the sovereign still represents the omnilateral will throughout this case. Kant’s reasoning is that carrying out the original verdict would lead to the risk that the state would ‘pass over into the state of nature, which is far worse because there is no external justice at all’. In the unlikely empirical circumstances Kant imagines, the normally desirable fact that the particular willing of the regent and the judge cannot be directed at anything other than applying a general law in a particular case has created a situation in which the state, lawfully and rightfully, might rule itself out of existence, thus destroying any possibility of rightful lawgiving. Without population there cannot be a state and without a state there cannot be rightful laws. The judge’s particular will is constrained by omnilateral law to will the destruction of the conditions that make such willing possible: But this is a contradiction in willing. For this reason, the sovereign acts in a particular case whilst still representing the omnilateral will because that act secures the conditions for the possibility of the omnnilateral willing of rightful laws. The sovereign assumes the role of the judge, exercises their authority to pronounce a sentence that maintains the population, such as deportation to another province, and carries it out through executive decree. The separation of authorities is violated, but the sovereign does not act from their particular will, and so is rightful and justified in doing so.
The population-wide murder conspiracy is not the only place in which Kant explicitly makes clear his commitment to justifying the sovereign’s right to maintain the existence of the state. Kant also argues that the sovereign, in addition to rights of taxation, may further levy forced loans, even in cases where that deviates ‘from previously existing law’ when ‘the state is in danger of dissolution’.Footnote 66 In a similar vein, Kant’s justification of the right of the state to tax where it is necessary to maintain ‘the poor, foundling homes and church organizations’ is based on his view that ‘The general will of the people has united itself into a society which is to maintain itself perpetually; and for this end it has submitted itself to the internal authority of the state in order to maintain those members of the society who are unable to maintain themselves’.Footnote 67 Beyond The Doctrine of Right, in Toward Perpetual Peace, Kant discusses the possibility of permissive laws that allow the sovereign to postpone putting laws into effect lest that see the state ‘devoured by other states’.Footnote 68 Again, Kant justifies the sovereign acting in defence of the state. This indicates that, although the population-wide murder conspiracy is an incredibly unlikely and exceptional circumstance, this authority of sovereign is invoked in the normal course of politics.Footnote 69 However, the population-wide murder conspiracy is the most important example in the present context because it is in that case that Kant says explicitly that the sovereign is justified in violating the law and the separation of authorities in order to maintain the state.
This line of reasoning can be expanded to cover the other cases in which the sovereign violates the separation of authorities and thus justifies the hierarchy overall. The sovereign intervenes on the executive and judicial authorities when doing so is necessary for maintaining the state, as the condition which makes rightful lawgiving possible, under empirical conditions that may not always be favourable to this. For example, the authority to strip the regent of executive authority means that should the regent, who is of course a finite human being and therefore fallible, begin to threaten the state, then the sovereign is able to rightfully intervene. Therefore, the sovereign’s authority allows them to maintain the state in cases where the application of law through separated authorities is not sufficient to the task, or even where the application of the law itself is the source of the threat.