Kantian republicanism and the internal relation between justice and legitimacy

Abstract

It is a commonplace to observe that, under the influence of Rawls, Kantian ideas displaced utilitarianism from its dominant position within analytic political philosophy. And yet considerable obstacles remain to the assimilation of the Kantian framework, and the wider tradition of the philosophy of right. Much contemporary political philosophy remains Platonic in its focus on justice and the role of law in promoting justice, Lockean in its voluntaristic, natural rights view of the demands of legitimacy, and consequentialist in its concern for promoting just and/or legitimate states of affairs. As a result, all too often it fails to engage with central categories of modern political thinking centred around the idea and reality of the law-governed sovereign state. The growing body of work developing realist approaches to political theory offers resources for remedying this inattention. While I follow the realist move away from external moral standards of justice and towards a focus on legitimacy - understood as a form of normativity intrinsic to politics - I will argue that all too often realists fail to go far enough. A realistic approach to political theory requires a broader shift from a moral to a juridical frame of reference, in which legitimacy is understood in the context of the idea of sovereignty and the closely related concept of public law, or political right. The approach that I favour is the form of Kantian Republicanism defended by Habermas. In seeking to render this position coherent and attractive, I will contrast it with the republicanism of Phillip Pettit, particularly Pettit’s important recent work developing a republican conception of legitimacy. In section 1, I set out Pettit’s approach to legitimacy and his reasons for preferring what he calls the Italian-Atlantic tradition of republicanism over the Continental strain of thought that I will refer to as the Rousseauian-Kantian tradition. My response will develop in three steps. In section 2, I sketch an alternative genealogy of the development of political philosophy from the perspective of the concepts of sovereignty and political right and seek to restore these concepts to their appropriate place. In section 3, I turn to the fundamental conceptual differences in the understanding of legitimacy that these competing narratives serve to uncover. The fundamental contrast turns on whether legitimacy is understood as a property that states either possess or lack, or is rather specified in procedural terms. More specifically, I argue that a procedural criterion of legitimacy should be understood in processual or developmental terms. Finally, in section four, I set out the Habermasian framework of Kantian Republicanism and show how its understanding of the internal relation between law and democracy, or justice and legitimacy, embodies such a procedural and processual approach. While Pettit’s position has moved closer to such an approach in a number of significant ways, important differences remain that are ultimately traceable to basic differences in methodological orientation that have hindered the appropriation of key Kantian insights.