Arthur Ripstein, Force and Freedom: Kant’s legal and political philosophy (Cambridge (MA): Harvard University Press, 2009); B Sharon Byrd and Joachim Hruschka, Kant’s Doctrine of Right: A commentary (Cambridge: Cambridge University Press, 2010).

Japa Pallikkathayil, ‘Neither Perfectionism nor Political Liberalism’, Philosophy and Public Affairs, 44 (3) (2016): pp. 171–196; Louis-Philippe Hodgson, ‘Kant on the Right to Freedom: A Defense’, Ethics, 120 (4) (2010): pp. 791–819.

Arthur Ripstein, Private Wrongs (Cambridge (MA): Harvard University Press, 2016).

For example, theorists have attempted to understand how Kant’s philosophy could ground welfare systems. For discussion and criticism of some of these views, see Luke Davies, ‘Kant on Welfare: Five Unsuccessful Defences’, Kantian Review, 25 (1) (2018): pp. 1–25. See also Japa Pallikkathayil on issues related to bodily autonomy such as the right to sell or donate organs, ‘Persons and Bodies’, in S. Kisilevsky & M. Stone (eds.), Freedom and Force: Essays on Kant's Legal Philosophy (Oxford: Hart Publishing, 2017), pp. 35–54.

The classic study surely remains Judith Shklar, Legalism: Law, Morals and Political Trials (Cambridge (MA): Harvard University Press, 1986).

On taking The Doctrine of Right as the key text for Kant’s political and legal philosophy, see Byrd and Hruschka, Commentary, pp. 13–15.

Other approaches can, of course, still be found. One such alternative is Arendtian, such as the work of Linda Zerilli, see A Democratic Theory of Judgment (Chicago: University of Chicago Press, 2016). See notes 108 and 109 for more on why I don’t follow this approach. Other, non-Arendtian and less legalist approaches are available, but less prominent in the current literature, for example, see Katrin Flikschuh, Kant and Modern Political Philosophy (Cambridge: Cambridge University Press, 2000); Elisabeth Ellis, Kant’s Politics: Provisional Theory for an Uncertain World (New Haven (CT): Yale University Press, 2005).

Thomas Sinclair, ‘The Power of Public Positions: Official Roles in Kantian Legitimacy’. In D. Sobel, S. Wall and P. Vallentyne (eds.), Oxford Studies in Political Philosophy, Volume 4 (Oxford: Oxford University Press, 2018): pp. 28–51, p. 34.

MM 6:297. References to Kant’s work are to volume and page number following the Prussian Academy pagination. I use the following abbreviations: Critique of Pure Reason – CPR; Critique of Practical Reason – CPrR; Critique of the Power of Judgment – CPJ; The Metaphysics of Morals – MM; On the common saying: That may be correct in theory, but it is of no use in practice – TP; Toward Perpetual Peace – PP; On a supposed right to lie from philanthropy – OSR; The Conflict of the Faculties – CF; Reflections – R; drafts for Theory and Practice – dTP; drafts for Toward Perpetual Peace – dPP; drafts for The Metaphysics of Morals – dMM; Natural right course lectures notes by Feyerabend – F. All translations are from the Cambridge Editions but see fn. 16 and fn. 19 for discussion of some amendments.

MM 6:317.

MM 6:313.

Ripstein, Force and Freedom, pp. 190–198; Sinclair, ‘The Power of Public Positions: Official Roles in Kantian Legitimacy’, cf. TP 8:300.

I thank an anonymous reviewer for helping me formulate the Kantian legalist position this way.

See, for example, discussions in Quentin Skinner, ‘Hobbes and the Purely Artificial Person of the State’, Journal of Political Philosophy, 7 (1999): pp. 1–29; Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016); Richard Bourke and Quentin Skinner (ed.), Popular Sovereignty in Historical Perspective (Cambridge: Cambridge University Press, 2016); Lucia Rubinelli, Constituent Power: A History (Cambridge: Cambridge University Press, 2020).

These ambiguities are most clearly in play at MM 6:340 where Kant discusses the obligation of the ‘Konstituierenden Gewalt’, the constituting authority, to reform ‘the kind of government’.

There is some debate as to whether the Kant’s term Gewalten should be translated as ‘authorities’ or ‘powers’. As Paul Guyer points out, ‘powers’ would be the usual translation, though Mary Gregor’s standard English translation of The Metaphysics of Morals also uses ‘authorities’. I use ‘authorities’ here to emphasise the moral and normative quality of Kant’s use of the term. This is also the translation used by Kantian legalists for the most part. As Guyer also points out, use of one English term for each German term is preferable, so I stick to the use of ‘authorities’ throughout. See Paul Guyer, ‘Achenwall, Kant, and The Division of Government Power’. In M. Ruffing, A. Schlitte and G. Sadun Bordoni (Eds.), Kants Naturrecht Feyerabend: Analysen und Perspektiven (Berlin: De Gruyter, 2020), pp. 201–228, p. 201, fn. 1.

MM 6:313.

MM 6:314.

MM 6:316. I diverge from Gregor’s standard translation of The Metaphysics of Morals consistently throughout this paper to clearly distinguish sovereign (legislative) and executive authorities. Gregor uses the same term ‘ruler’ to translate terms connected with sovereign (legislative) authority (‘herrscher’ and ‘beherrscher’) and those connected with executive authority (‘regierers’ and ‘Regent’). I amend Gregor’s translation accordingly and use ‘regent’ to refer to the executive authority.

MM 6:316–317. When referring to authorities by pronoun I use ‘they’ to account for moral personality of authorities (see MM 6:316) which could involve more than one physical, or natural, person. For example, an executive government, a sovereign aristocratic or democratic assembly, or a court. I note this because of the difficulties and tensions in the gendering of Kant’s political philosophy. See discussion in Pauline Kleingeld, ‘The Problematic Status of Gender-Neutral Language in the History of Philosophy: The Case of Kant’, The Philosophical Forum 25 (1993): 134–150.

MM 6:317–318.

MM 6:328. Cf. dPP 23:159; dMM 23:258.

Guyer, ‘Achenwall, Kant, and The Division of Government Power’, p. 201.

MM 6:338. Cf. R 7653 19:477.

Cf. R 7971 19:567; R 7989 19:574.

As this ‘person’ could be an aristocratic or democratic assembly, the person could be a moral but not natural person (see above, fn. 20). Kant’s use of autocrat, as opposed to monarch, reflects his hostility to hereditary succession. On this see Helga Varden, ‘Self-Governance and Reform in Kant’s Liberal Republicanism – Ideal and Non-Ideal Theory in Kant’s Doctrine of Right’. Doispontos 13 (2) (2016): pp. 39–70. I take it from Kant’s claim that reform of the state cannot include reform of the sovereign itself from one of the three forms into another’ that the sovereign can take on a non-democratic form permanently, see 6:338–340. This is a contested view. For opposing views, see Byrd & Hruschka, Commentary, p. 181 and Paul Guyer, “‘Hobbes Is of the Opposite Opinion’ Kant and Hobbes on the Three Authorities in the State”. Hobbes Studies 25 (2012): pp. 91–119, p. 114. The arguments of this paper do not depend on one’s views of Kant’s endorsement or not of democracy. They apply to any morally legitimate form of sovereignty, be that autocratic, aristocratic or democratic, or only democratic. Cf. F 27:1383; R 7977 19:570.

MM 6:313.

MM 6:317; MM 6:334.

In these passages, Kant contrasts the sovereign with the regent and the judge. There are thus two tripartite distinctions at play. Here, the sovereign is a species of the genus of state authorities, which also includes the regent and the judge. In the above passages containing the conception of sovereignty as public authority, the sovereign is the genus and autocrat, aristocratic assembly and democratic assembly are the species.

Jacob Weinrib, ‘Sovereignty as a Right and as a Duty: Kant’s Theory of the State’. In C. Finkelstein and M. Skerker (eds.), Sovereignty and the New Executive Authority (Oxford: Oxford University Press, 2018) pp. 21–46, p. 28 fn. 21.

Ripstein, Force and Freedom, p. 173.

Ibid, p. 194. The formulation ‘sovereign (legislature)’ is directly carried over from MM 6:317.

On Kant’s self-admitted less than thorough drafting, see MM 6:209. On the publication history, see the introduction to The Metaphysics of Morals in the Cambridge Edition of Kant’s Practical Philosophy; Bernd Ludwig, “‘The Right of a State’ in Immanuel Kant's Doctrine of Right”. Journal of the History of Philosophy, 28 (3) (1990): pp. 403–415; Thomas Mautner, ‘Kant's Metaphysics of Morals: A Note on the Text’. Kant Studien, 72 (3) (1981): pp. 356–359. Such are the issues with the published version of the text that Ludwig has published a revised edition, and such is the controversy about these extensive changes that only some are incorporated into the Gregor translation, see Bernd Ludwig, Immanuel Kant, Metaphysische Anfangsgründe der Rechtslehre, (Hamburg: Felix Meiner Verlag, 1986).

This distinction between office and person elides Kant’s own distinction between an office and dignity (MM 6:328). Offices are ‘salaried administrative positions’, whilst dignities are ‘eminent estates without pay’. This distinction is not of consequence in this context though it is below (see fn. 55).

My thanks to Daniel Peres for this objection.

MM 6:316.

See Paul Guyer, ‘Achenwall, Kant, and The Division of Government Power, p. 202.

Ripstein makes this point convincingly in Force and Freedom, pp. 174–175.

As opposed to the internal law of the will, which is the subject of The Doctrine of Virtue that accompanies The Doctrine of Right.

Kant’s use of the general will is distinctive and far from straightforward. Although not necessarily followed in all their details here (and, indeed, despite being opposed in some respects), two useful accounts which grapple with the concept in Kant are Katrin Flikschuh, ‘Elusive Unity: The General Will in Hobbes and Kant’, Hobbes Studies 25 (2012): pp. 21–42; Macarena Marey, ‘The Ideal Character of the General Will and Popular Sovereignty in Kant’. Kant-Studien, 109 (4) (2018): pp. 558–580.

MM 6:314.

Cf. Guyer, ‘Achenwall, Kant, and The Division of Government Power, p. 211; Marie Newhouse, ‘The Legislative Authority’. Kantian Review, 24 (4) (2019): pp. 531–553, p. 535.

MM 6:327. Cf. F 27:1384.

MM 6:341–342. Something like this relinquishment of sovereign right is what Kant argues happened during the summoning of the estates general.

MM 6:317.

Ibid.

Cf. R 7752 19:507.

MM 6:320. Cf. dPP 23:164.

MM 6:234–235.

Cf. Byrd & Hruschka, Commentary, p. 162.

Ibid, pp. 143–147.

Ripstein, Force and Freedom, pp. 145–181.

Newhouse follows Ripstein on this point in her account of the legislative authority, ‘The Legislative Authority’, p. 534.

MM 6:317.

The sovereign’s authority to strip dignities is discussed at MM 6:328–6:330, and it is here that the earlier distinction between dignity and office is consequential (see fn. 34). Kant holds that civil offices (including, not incidentally, university professors) cannot be removed by the sovereign except in the case of a crime being committed, whilst dignities can. Even then, unless a crime has been committed, the person will still be left with the dignity of citizenship, hence why the regent is rendered a private citizen. Cf. dPP 23:172.

MM 6:317.

MM 6:334. The circumstances Kant discusses are outlandish, a ‘population-wide murder conspiracy’. I discuss Kant’s reasoning behind this bizarre case in detail below.

MM 6:337.

Ibid. This restriction of clemency to crimes against the sovereign parallels the restriction of judgments of equity in legal cases to crimes against the crown, see MM 6:234–235.

Ibid. Cf. dMM 23:348.

This odd case is little discussed in the literature. An exception is Thomas Mertens ‘Emergencies and criminal law in Kant’s legal philosophy’, ethic@ - An international Journal for Moral Philosophy, 16 (3) (2017): pp. 459–474.

MM 6:334.

MM 6:333.

MM 6:331.

Cf. subjective and objective right at MM 6:236.

MM 6:325.

MM 6:326, second emphasis added.

PP 8:347 & 8:373. Cf. dPP 23:184.

There is something Schmittian about this aspect of Kant, and especially the notion of the Machtspruch. That the sovereign authority, and their political judgment (as I argue in Section V), undergirds law and that it can overturn it is especially uncomfortable for Kantian legalists, just as Schmitt’s account of ‘the exception’ was abhorred by the neo-Kantian legalist Hans Kelsen. However, there are clear differences between Schmitt and Kant. The most important is that Kant gives moral justifications for when the sovereign should exercise their authority. For a traditional analysis of the differences between Schmitt and Kant, see Seyla Benhabib, ‘Carl Schmitt’s Critique of Kant: Sovereignty and International Law’, Political Theory, 40 (6) (2012): pp. 688–713. For an analysis closer to the spirit of the interpretation of Kant offered in this paper, see Paola Romero, ‘Why Carl Schmitt (and others) got Kant wrong’, Con-Textos Kantianos. International Journal of Philosophy, 13 (2021): pp. 186–208.

Byrd and Hruschka, Commentary, p. 161.

MM 6:316.

MM 6:317.

Ibid, emphasis mine.

Risptein, Force and Freeedom, pp. 173.

Ibid.

Newhouse, ‘The Legislative Authority’, p. 536.

MM 6:334.

MM 6:325.

Guyer’s analysis of the separation and hierarchy of authorities does differ from those of Byrd and Hruschka, Ripstein and Newhouse, which are my focus, but on this point the interpretations are relevantly similar.

Guyer, ‘Achenwall, Kant, and the Division of Governmental Powers’, pp. 222–223.

Ibid, p. 223. Interestingly, in a separate paper Guyer argues that, in fact, the executive is de facto sovereign over the legislature although the latter is de jure sovereign. If I understand Guyer correctly, his claim that Kant’s coordinate and subordinate claim is a rhetorical flourish would only apply to the de jure allocation of sovereignty. As my concern here is Kant’s moral and political conception of sovereignty, it is who is sovereign de jure which counts for my argument. See Paul Guyer, ‘Is Sovereignty Divided Still Sovereignty? Kant and The Federalist’, University of Pittsburgh Law Review, 83 (2) (2022): pp. 365–396.

In the Preface to The Metaphysics of Morals Kant distinguishes the system of right from its application, which is put into remarks, MM 6:205–206.

MM 6:316; MM 6:319.

MM 6:313.

MM 6:340; PP 8:352; CF 7:88.

MM 6:322. In the same passage, Kant limits reforms to the executive authority, and not the sovereign itself. We can infer that, as citizens are prohibited from attempting to reform through revolution and overthrowing the sovereign, since this would amount to ‘abolishing the entire legal constitution’ and ‘destroying the fatherland’, so too the sovereign may not reform themselves, for example by transitioning from an aristocracy to a democracy. If they did, they would no longer be sovereign and so would have destroyed the state, see MM 6:320; MM 6:340. Perhaps because of this Kant also holds at MM 6:342: ‘The right of supreme legislation in a commonwealth is not an alienable right, but the most personal of all rights’. Self-reform would alienate the sovereign’s right which they have no right to alienate.

MM 6:319.

Cf. dMM 23:283.

A critique of legalistic readings along these lines is Katrin Flikschuh, ‘Exactitude and Indemonstrability in Kant’s Doctrine of Right’. In E. Herlin-Karnell and Enzo Rossi (Eds.) The Public Uses of Coercion and Force (Oxford: Oxford University Press, 2021): pp. 117–132.

MM 6:239.

For the importance of the first-personal orientation of the agent to Kant’s philosophy in general, see Karl Ameriks, Kant and the Fate of Autonomy: Problems in the Appropriation of the Critical Philosophy, (Cambridge: Cambridge University Press, 2000).

MM 6:334.

Ibid.

Ibid.

MM 6:339; MM 6:320.

I thank an anonymous reviewer for prompting me to clarify this. As the reviewer pointed out, one might read each of the public right chapters of Ripstein’s Force and Freedom as engaged in these questions of political judgment.

I term the sovereign’s judgment ‘political’ because the judgment concerns decisions of state and the exercise of power over others in that context unconstrained by law. Though ‘the political’ is notoriously hard to define, I hope that the contrast to ‘the legal’ is sufficiently clear in the context of this paper. For avoidance of doubt, I do not suggest Kant affirmed any hard distinction between ‘the political’ and ‘the moral’, see fn. 106.

For more on this notion of orientation, see Kant’s What does it mean to orientate oneself in thinking and Katrin Flikschuh’s What is Orientation in Global Thinking, (Cambridge: Cambridge University Press, 2017).

CPR, A569/B597.

This is not quite accurate as Kant seems to hold that ideals are realisable in the noumenal world beyond the phenomenal world of sense experience. Hence in the Critique of Practical Reason, Kant argues that the highest good – happiness in proportion to perfect virtue – is realisable only outside of the phenomenal world characterised by space and time. For this reason, he endorses moral beliefs in the immortal soul and God, see CPrR, 5:110 on the highest good. These considerations take us far beyond the subject of this paper. For present purposes, it is enough to say that ideals can orientate practical agents, even if they are not realisable in this world. Jakob Huber has argued for the relevance of this idea in contemporary theory, see his ‘Pragmatic Belief and Political Agency’, Political Studies 66 (3) (2018): pp. 651–666.

MM 6:224.

Jens Timmermann ‘Kantian Dilemmas? Moral Conflict in Kant’s Ethical Theory’, Archiv für Geschichte der Philosophie, 95 (1) (2013): pp. 36–64.

Ibid, p. 58. Cf. dTP 23:136; dPP 23:163; dMM 23:345.

They have ‘taken on the most sacred office on earth’ dPP 23:166.

PP 8:372–373.

This invites a discussion of the debate over the relationship of morality and politics in The Doctrine of Right, which for reasons of space I cannot discuss at length. The debate concerns those who view The Doctrine of Right as grounded on Kant’s fundamental moral principle ‘act on a maxim which can also hold as a universal law’ (MM 6:226) such as Jürgen Habermas and Guyer; those who view it as independent of it such as Allen Wood and Marcus Willaschek; and those who hold positions in between these polls such as Ripstein, which we might call ‘complex dependency’ views. In reality the substance of these positions constitute a spectrum, rather than clearly delineated camps. For example, one might reasonably disagree with my classification of Guyer under the dependency rather than complex dependency view. In this debate, I find the complex dependency position most convincing, and my arguments can be read in light of that. A full argument for this position is well beyond the scope of the present paper. See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1996) (Trans.) William Rehg, pp. 104–106; Ripstein, Force and Freedom, pp. 355–388; and all in M. Timmons (Ed.) Kant’s Metaphysics of Morals: Interpretative essays (Oxford: Oxford University Press, 2002): Allen Wood ‘The Final Form of Kant’s Practical Philosophy’, pp. 1–22; Paul Guyer, ‘Kant’s Deductions of Principles of Right’, pp. 23–64; Marcus Willaschek, ‘Which Imperatives for Right?’, pp. 65–88.

Putting the point this way might bring Christoph Horn’s Nichtideale Normativität: Ein neuer Blick auf Kants politische Philosophie (Berlin: Suhrkamp, 2014) to mind. There is much my account has in common with Horn’s, though naturally mine has a narrower focus. The major difference, as I see it, is that I emphasise political judgment rather than the non-ideal normativity that is the centre of Horn’s interpretation.

A very good example of this is Miguel Vatter, ‘The People Shall Be Judge: Reflective Judgment and Constituent Power in Kant’s Philosophy of Law’, Political Theory 39 (6) (2011): pp. 749–776. Whilst there is much I agree with in Vatter’s account, for the purposes of this paper I cannot share his focus on reflecting judgment. In the Critique of the Power of Judgment, Kant distinguishes two kinds of judgment. Along with reflecting, there is also determining judgment. In the latter the judgment takes the form of the application of a prior universal to a particular, such as the application of a moral law. In the former, the universal to be applied to the particular is found through judgment itself, and this characterises aesthetic and teleological judgment. Whilst an account of reflecting judgment, especially as concerns teleology, would be necessary for a full account of political judgment in Kant, in the context of the practical, and hence, moral reasoning of The Doctrine of Right specifically, it is determining judgment, the kind which characterises moral judgment, that is crucial for understanding the deep philosophical relationship between law, judgment and politics in Kant. See CPJ, 20:221–226.

Hannah Arendt, Lectures on Kant’s Political Philosophy (Brighton: The Harvester Press, 1982), p. 7; Ronald Beiner, Political Judgment (Chicago: University of Chicago Press, 1983), p. 68. Arendt, as noted, went on to develop a Kantian political philosophy out of Kant’s conception of aesthetic judgment in the Critique of The Power of Judgment. Whilst this has been hugely influential, and especially notable for me due to my focus on judgment, it is Arendt’s account of political judgment. My focus here has been Kant’s account in his political philosophy and how this relates to law.

I thank an anonymous reviewer for pushing me to clarify this.

OSR, 4:429.