The people shall be the judge: Reflective judgment and constituent power in Kant's Philosophy of Law. Reflective judgment and constituent power in Kant's philosophy of law

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Abstract

This essay offers an interpretation of Kant's republicanism in light of the problem of political judgment. Kant is sometimes thought to base his conception of law on an idea of sovereignty drawn from Hobbes and Rousseau, which would leave little room for popular contestation of the state. In this essay, I reconstruct Kant's account of the rule of law by bringing out the importance of his theory of judgment. I argue that for Kant the civil condition is ultimately characterized by a contest between the judgment of the sovereign and the judgment of the people, which corresponds to the determinative and reflective employments of political judgment, respectively. On this view, popular sovereignty is ultimately located in the people's power to judge politically and contest publicly the state.

Original languageEnglish
Pages (from-to)749-776
Number of pages28
JournalPolitical Theory
Volume39
Issue number6
DOIs
Publication statusPublished - 2011

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