The hierarchy of authorities thus rests on the principled need to maintain the existence of the state as the condition of possible law-making. But how are we to understand this principle and in turn understand the nature of sovereignty in The Doctrine of Right? In the literature, the hierarchy of authorities, and therefore sovereignty, is most often understood in legal terms, but this approach runs into problems. Byrd and Hruschka argue the sovereign is “‘higher’ than both the highest executive and the highest judge and thus stands above them, because the second and third powers are subject to, or under the law”.^{Footnote 70} This is true, but it does not seem to me to account for the features of the hierarchy as just described. The fact that executive and judicial authority must be exercised in accordance with law seems to be more of an expression of the separation of authorities with regard to law-making than an account of the hierarchy. The subordination of the regent and judge to law is perfectly compatible with the three authorities being ‘coordinate and subordinate’.^{Footnote 71} That describes the separation of authority with regard to law-making, rather than the hierarchy of authorities. Indeed, in the passage cited by Byrd and Hruschka in support of this understanding of the hierarchy, Kant does say ‘the regent is subject to the law’.^{Footnote 72} However, he also says ‘The sovereign can also take the ruler’s authority away’ indicating that the authority of the sovereign over the regent consists in more than the subordination of executive authority to law.^{Footnote 73}

Ripstein also argues that ‘the legislative will takes priority’ because ‘the exercise of judgment and the enforcement of rights’ by the judge and regent respectively ‘must be done in accordance with law’.^{Footnote 74} But he goes further to argue that ‘The only way a judge or enforcer can be empowered consistent with right is through an act of legislative will’.^{Footnote 75} This is suggestive that not only is the sovereign higher because the powers of the regent and judge must be exercised under law, but the hierarchy also consists in the power of the sovereign to appoint the regent and the judge through legal means. This, I think, does address the hierarchy of authorities, because these powers of appointment are not reciprocal. This idea is expanded by Marie Newhouse who argues ‘the legislative authority is first among equals’ because it has ‘the capacity to make constitutional laws that allocate authorities among institutions within the empirical state’.^{Footnote 76} However, the legalistic understanding of the hierarchy still faces problems. One is that it makes it hard to understand how the sovereign’s judgment in the population-wide murder conspiracy case can be rightful. Recall that the sovereign does not act through ‘public law’ and, indeed, acts contrary to established positive legislation.^{Footnote 77} The same problem applies at least to the case of forced levies which deviate ‘from previously existing law’.^{Footnote 78} Whilst it might be possible to understand the sovereign’s powers of appointment in legal terms, if one is available, an understanding of the hierarchy that can explain all its facets together is preferable.

A second problem with understanding the hierarchy as an assertion of the legal supremacy of the sovereign over the regent and judge is it causes one to wonder in what sense a separation of authorities really obtains at all. In his analysis, Guyer argues that the hierarchy of authorities overrides any claim Kant might have to a separation of authorities. Relying on a similarly legal understand of the hierarchy, Guyer presents us with a useful challenge.^{Footnote 79} Guyer claims ‘there is no clear sense in which the legislature is ever subordinate to the executive’ and ‘As long as the entire judicial process – finding of fact, application of law, enforcement of law – is governed by the laws of the legislature, the authorities involved in the judicial process remain subordinate to the legislature. There is no obvious sense in which the judiciary is coordinate to the legislature’.^{Footnote 80} Hence, Kant’s claim that the three authorities are coordinate and subordinate to each other is a ‘rhetorical flourish’.^{Footnote 81} Yet given that Kant’s coordinate and subordinate claim occurs within the main text of The Doctrine of Right, hence as part of Kant’s system of right and not, for example, in the remarks or in the preface, it would be surprising if the claim were entirely rhetorical.^{Footnote 82} How, then, can we explain the hierarchy but not reduce Kant’s subordinate/coordinate claim – and hence the separation of authorities – to mere rhetoric?

The key, I believe, is the distinction between the two conceptions of sovereignty distinguished in Section II. Over the previous two sections, we have been looking closely at Kant’s conception of sovereignty as legislature. We have seen that this sovereign is embedded in complex relations with the regent and the judge with the purposes of establishing rightful law and ensuring the sovereign has the authority to maintain the state. I now want to bring the conception of sovereignty as public authority into the discussion. Recall that on this conception all the authorities and all the authority of the state adhere to the sovereign. What we can now see is that there is a certain fuzziness to the conception of sovereignty as legislature that blurs the distinction with the conception of sovereign as public authority. The sovereign legislature does not hold all authority in the state, but it does hold some authority over all other authorities in the state. In other words, Kant’s sovereign legislature does not hold all state authority, but is not simply one authority among three either.

Narrowing the gap between two conceptions of an ambiguous concept is not to eliminate the ambiguity, but in this case it does help us understand it. I suggest that the best way of understanding this ambiguity is not as a failure of precise definition of a legal concept, but as the use in practical reasoning of a political concept – hence I call this interpretation the political conception of sovereignty. According to this reading, the sovereign in the Kantian state holds all the authority of the state. However, they are also under an obligation to alienate their authority over judicial and executive matters onto other persons. The regent and the judge hold and enact the authority of the sovereign in executive and legislative matters. This is what I take Kant to mean when he describes the regent as an ‘agent of the state’ or the ‘organ of the sovereign’.^{Footnote 83} The authority of the regent and the judge is ultimately the sovereign’s but ought to be actioned by different persons. This also means that in cases such as the population-wide murder conspiracy and the others discussed above, the sovereign has the authority and right to intervene on the executive and judge in their functions because the sovereign is only interfering with rights to executive and judicial authority that they already hold.

On the political conception of sovereignty, both the conception as legislature and the conception as public authority hold it certain respects. The sovereign is regarded as holding all public authority but is also regarded as obligated to rule as a sovereign legislature. Rightful law is established through a separation of authorities, and so the sovereign is obligated to alienate executive and judicial authority onto other persons in order to rule rightfully. In contrast to Guyer’s claim, then, there is a sense in which the regent subordinates the sovereign. The sovereign is ideally subordinate to the regent and the judge with regard to their functions in law-making. Kant’s claim that the three authorities are coordinate and subordinate to each other thus holds in the form of an imperative on the sovereign. Given that the separation of authorities comprises part of the ideal state in idea, this imperative structure of the claim is not out of place.

However, as we have seen, under some empirical circumstances maintaining or attaining such a separation of authority becomes impossible without thereby imperilling the state upon the existence of which the possibility of rightful law depends. So, the sovereign is also under another obligation to maintain the state. These two obligations are not inherently contradictory but can become so under certain empirical circumstances. Kant’s ambiguous and political conception of sovereignty seems to leave us with a threat of contradiction, but it is here that the role of political judgment emerges most clearly, and most decisively. Kant’s sovereign is ambiguous because they are active in the politics of the state, not a static legal institution which frames political life. The sovereign is tasked with judging when the empirical circumstances permit rule through rightful law, and when they require the sovereign to exercise their extra-legal authority. Once we understand this extra-legal or political quality of Kant’s sovereign, we can also see how the sovereign’s judgment in the population-wide murder conspiracy case can be understood as rightful, and do so in a way consistent with other instances where the hierarchy is either expressed or invoked in The Doctrine of Right. This gives us reason to favour a political over a legal reading of Kant’s conception of sovereignty.

As an example of political sovereignty in action, consider the right to punish. This is a coercive right, and as such a right of executive authority.^{Footnote 84} What the political conception implies is that the right to punish is a right of the sovereign, because all rights of the state ultimately adhere to the sovereign. However, given the obligation to establish rightful law and hence to rule through a separation of authorities, the exercise of this authority ought to be carried out by the regent. The sovereign then rules rightfully as a sovereign legislature without executive or judicial functions. This is ‘to make the kind of government suited to the idea of the original contract’ or, as Kant would put it elsewhere, to rule in ‘the spirit of a representative system’ or in a republican ‘manner of governing’.^{Footnote 85} Fulfilling this obligation may require reforms of the state, which Kant holds must ‘be carried out only through reform by the sovereign itself…’^{Footnote 86} The sovereign is required to judge when doing so is compatible with the ongoing existence of the state. However, even once this step to separate authority is taken, the sovereign cannot absolve themselves from affairs of state other than giving law. Recall the previously discussed right of the sovereign to depose the regent if the regent becomes a threat to the state. It is easy to imagine how a rogue regent with the right to punish through the exercise of coercion might be such a threat and why Kant would want the sovereign to act against them by deposing them. According to the political conception of sovereignty, the political judgment as to when this is necessary falls to the sovereign.

What is interesting about this is that it allows a certain flexibility for the sovereign to approximate as closely as possible to rightful rule, even in circumstances which make this very difficult. Kant is very hesitant about allowing the sovereign to exercise executive authority under any circumstances. He writes ‘In that case the sovereign behaves through its minister as also the regent and so as a despot’.^{Footnote 87} He is also concerned that any form of coercive resistance to the regent would be self-contradictory as the executive authority is the supreme coercive authority. If another authority could resist them, they would no longer be supreme. But the sovereign still has a course of action open to them which they can take if they judge it necessary to maintain the state. They can strip the regent of executive authority and appoint another in their place. The previous regent would then return to being only a private citizen. Were they to continue to try to exercise coercion this would be a clear wrong, and the new regent would be acting rightfully in coercively putting down what now could only be described as a rebellion. These are the kind of fine political judgments that the political sovereign is tasked with whether or not a separation of authorities has already been established. The challenge for the sovereign is to come as close to rightful ruling as the circumstances allow, which may even involve backwards steps if the circumstances demand it.^{Footnote 88}