The Legislative Authority
M.E. Newhouse 'The Legislative Authority' 24(4) Kantian Review (2019), pp. 531-53.
31 Pages Posted: 10 Sep 2019 Last revised: 20 Apr 2020
Date Written: September 2, 2019
This article develops an account of the nature and limits of the state’s legislative authority that closely attends to the challenge of harmonising Kant’s ethical and juridical theories. Part one clarifies some key Kantian concepts and terms. Part two explains the way in which the state’s three interlocking authorities — legislative, executive, and judicial — are metaphysically distinct and mutually dependent. Part three describes the emergence of the Kantian state and identifies the preconditions of its authority. Part four offers a metaphysical model of the Kantian state and uses it to argue that the activity of juridical lawgiving is an act of the omnilateral will itself. Part five argues that the legislative authority is limited in the sense that it does not include the capacity to create juridical laws that are conceptually incompatible with the idea of universal external freedom. Part six argues that my proposed account of the legislative authority is wholly consistent with that authority’s exclusive lawgiving capacity and does not threaten the possibility of legal finality: the sine qua non of a civil condition.
Keywords: Kant, Metaphysics of Morals, Doctrine of Right, state authority, legislative authority, legislation, positive law, legal obligation, juridical duties, rightful honour, legal finality
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