Once we have the political quality of Kant’s concept of sovereignty in view, the ambiguity in sovereignty eventually resolves into a contradiction between two obligations on the sovereign, which is itself resolved through the political judgment of the sovereign. One might say that this amounts to clearing up the ambiguity and restoring consistency to Kant. In one sense, this is correct. In so far as Kant’s political philosophy should enable us to make consistent political judgments, the ambiguity is not problematic. But if the text is supposed to be the blueprint for an ideal legal state or system of law as Kantian legalists would have it, then the ambiguity still presents a problem. Kant does not define the circumstances in which sovereign judgment may subordinate the ordinary processes of rightful law and the separation of authorities, he leaves it to the judgment of the sovereign. We might be able to say that if the sovereign is wrong about whether there is a threat to the state, then they have exercised judgment poorly. We might also be able to say that if the sovereign is not acting in good faith and is using the threat to the state as a pretext for usurping other authorities, then this is wrong. But in both cases, what we don’t have is a set of conditions and circumstances by which the rightfulness is to be judged without either relying on empirical judgment about how bad a threat to the state is, or on suppositions about what the sovereign is really thinking.

Kantian legalism favours a discourse of legal precision, set categories, and fine distinctions, and I suspect would reject this tolerance of the ambiguity inherent in political sovereignty.^{Footnote 89} More importantly, however, the interpretation I have given suggests that Kant’s political principles are principles of political judgment, not principles of ideal legal systems or even of legal judgments. This is the core of my challenge to Kantian legalism. Whilst it would be wrong to say of The Doctrine of Right, and Kant’s political philosophy in general, that it is not concerned with the elaboration and justification of a system of a priori legal principles which are to serve as the normative ideal for all positive legal systems, my point is that it is concerned with much more besides. The Doctrine of Right is a system of external duties that concern interaction between agents from which all rights derive.^{Footnote 90} Such external duties are not exhausted by those a priori legal principles that ground a system of law but concern all external duties including those that cannot be captured within a legal system. This renders The Doctrine of Right an inherently political text; it aims to orientate the agent in a world shared with others by establishing grounds for external duties and principles for practical judgment.^{Footnote 91}The Doctrine of Right is thus best understood as offering a sustained attempt at political and practical reasoning of which the ambiguous concept of political sovereignty is, I suggest, a key part. Kant’s aim is not legal precision, but principles that guide the judgment of political agents. In Kant’s practical reasoning in The Doctrine of Right the perspective of the finite, which is to say the human, judging agent is never lost. If sovereignty is political, ambiguous, and active, rather than legal, precise, and static, then it is not possible to eliminate judgment from our politics. Nor is it (always) possible to constrain it through law. Judgment is needed at each stage of political thinking and acting, never allowing us to rest assured that law grounded on a priori principles justifies everything we do. The political sovereign is active within the Kantian state and must exercise judgment in contending with all the vagaries of empirical political circumstance.

There are no explicit conditions that could frame a constitutional provision determining when the sovereign exercises their judgment, because the framing of such an ideal constitution is not Kant’s primary concern. Indeed, the means by which he could do this are ruled out. As we have already seen, positive law (constitutional or otherwise) does not constrain the sovereign’s judgment. Recall that Kant claims that the sovereign’s usurpation of the judge in population-wide murder conspiracy case ‘cannot be done in accordance with public law’.^{Footnote 92} This is an explicit statement that when the sovereign usurps the role of the judge, the sovereign does not act through law by changing it or introducing a loophole. It is perhaps because Kant invokes ‘justice, as the idea of judicial authority’ as the grounds for his policy of an-eye-for-an-eye that such legal solutions are unacceptable in this case.^{Footnote 93} This is all the more likely if we also accept my earlier characterisation of this law of punishment as objective law. Kant instead turns to a different solution, one that takes us beyond the law, to a ‘Machtspruch’ or executive decree.^{Footnote 94} As we saw in Section IV, this also applies to other cases in which Kant argues for the sovereign to act extra-legally in defence of the existence of the state, such as that of forced loans, or in violation of the separation of authorities, such as deposing the regent. We might add to this last point that Kant’s rejection of ‘mixed constitutions’ and his claim that a ‘moderate constitution, as a constitution of the inner rights of a state, is an absurdity’ show that he is also not concerned with other legal institutions constraining the sovereign’s judgment.^{Footnote 95} The other authorities do not hold rightful authority over the sovereign and so cannot constrain the sovereign’s judgment.

The core difference between the reading of The Doctrine of Right presented here and that of Kantian legalists, is the claim that Kant’s primary concern is not framing the ideal constitution because his political principles are principles of political judgment not of ideal legal systems. I am not arguing that an ideal legal system is unimportant for Kant. Indeed, the necessity of creating and maintaining a system of law is Kant’s justification for the separation of authorities. Moreover, I also accept that ideals play a key role in Kant’s political philosophy. Nor am I claiming that Kantian legalism sees no place for political judgment.^{Footnote 96} Instead, I am making a claim about the relationship of this ideal of a legal system to political judgment. For Kantian legalists, political judgment is legal in the sense that it is constrained within the established legal order. State authorities are empowered by law to make judgments that would otherwise be wrongful. This leaves open the matter of the political judgments reached by different state authorities, but it requires that these judgments be grounded in law or given expression through law. It is this understanding of political judgment in Kant that I reject. Political judgment in Kant is not constrained by the ideal legal system, but rather the latter depends on the former. The sovereign’s judgment is political.^{Footnote 97} It is, as Kant terms it in the population-wide murder conspiracy example, a ‘Machtspruch’. It is an exercise of power, unconstrained by law upon which the possibility of the legal system and of rightful law-making depends.

Kant’s ideal legal system or the ideal ‘state in idea’ is then a regulative ideal that orientates for the sake of practical action.^{Footnote 98} Ideals in Kant’s practical philosophy are the realisation of ideas of reason. A useful example of what this means can be found the Critique of Pure Reason where Kant says that the idea of wisdom has as its counterpart ideal the perfectly wise person or sage.^{Footnote 99} An ideal is an individual thing entirely determined by the idea. Whether this is the ideal sage by the idea of wisdom, or the ideal legal system by the idea of rightful law. Such ideals are impossible for us to realise, but they serve to orientate the action of practical moral agents.^{Footnote 100} Thus in so far as wisdom is a virtue, we ought to strive to realise sagacity in our own person, even though being perfectly wise is impossible. The same is true of Kant’s ideal legal system in so far as the sovereign ought to rule through rightful law, with the attendant separation of authorities, so they are constrained by the idea of law in the form of an obligation. But for this argument to support a legalistic constraint on judgment it would require that this idea of law must be decisive in the sovereign’s judgment. Political judgment must be made the mere application of the idea of law to empirical circumstances.

However, we have already seen that the sovereign is also under an obligation to maintain the state. Moreover, we have seen that this obligation is grounded in Kant’s ideal ‘state in idea’. The ideal is thus complex and arises from to two imperatives, both binding on the sovereign, that are not inherently contradictory but might become so under particular empirical circumstances. Put another way, the sovereign is stuck between two orientations. Again, think of the population-wide murder conspiracy. It is only under the empirical circumstances in which there is such an enormous conspiracy that the sovereign is forced into a judgment between two obligations. The first is to allow the verdict to go ahead in accordance with objectively rightful law, the second is to usurp the function of the judge in order to maintain the state. Faced with this dilemma, the a priori idea of rightful law cannot be decisive in the sovereign’s judgment since there is nothing a priori that allows for a judgment between the two obligations.

This dilemma is a conflict of duties. Strictly speaking, Kant denies that a true conflict of duties is possible, but in the introduction to The Metaphysics of Morals he discusses the potential for conflicts in what he calls the grounds of obligation.^{Footnote 101} Following Jens Timmermann’s analysis, such grounds of obligation are best conceived of as pro tanto duties which can be defeated by other grounds of obligation judged to be stronger.^{Footnote 102} To find the stronger ground of obligation, the judger cannot simply look to a priori principles, but must judge according to the moral conditions of their experiential circumstances. This is a moral judgment that can only be made by the judging agent in the conditions they find themselves. The conflict ‘arises in moral practice’.^{Footnote 103} Applying this idea to the case of the sovereign exercising political judgment, the sovereign must judge which of the grounds of obligation – the idea of rightful law, or the maintenance of the state – is stronger in the circumstances of their moral practice. In this political instance of a conflict of duties, the sovereign will have to make a kind of prudential judgment: Will ruling rightfully, through the law and the separation of authorities, threaten the state? In the case of the population-wide murder conspiracy the answer is clear, it will do so and so the ground of obligation to maintain the state is stronger. In other cases, the answer won’t be so clear, and the sovereign may have to accept some risk to the state in order to rule rightfully.

The ideal legal state thus cannot provide definitive orientation to political judgment, and nor can the idea of law itself be decisive. Kant’s ideal for the legal state is part of his practical reasoning in The Doctrine of Right, but it is not his only focus. His focus is on the rightfulness of political judgment, and the principles that guide it. He finds that the application of law, and the formulation of a legal ideal is not sufficient for this task. The picture of moral and political judgment that emerges in Kant is a good deal more complicated than that.