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ECPR

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Law, Justice, and the Moral-Political Reasoning of Citizens

Citizenship
Democracy
Political Theory
Jurisprudence
Ethics

Abstract

Kant's philosophy of right is, according to some scholars, a form of legal positivism entailing both that there is no right of revolution and that law-violation in response to injustice is impermissible. According to other scholars, Kant is not a legal positivist and his denial of a right of revolution is consistent with permissible law-violation in response to injustice in certain cases. My own view (argued elsewhere) is that Kant's philosophy of right does not rule out as impermissible all cases of law-violation in response to injustice. Here I argue that Kant's philosophy of right is a distinctive form of legal philosophy, which differs from the currently familiar forms of positivism and natural law theory. I further argue that in a well-ordered Kantian democratic republic, not only the universal principle of right but also the categorical imperative would play certain roles in the determination and constitution of law. In support of this position I explain Kant's view about the reasoning of the moral politician. From this I draw inferences about what roles the universal principle of right and the categorical imperative would play in the reasoning of the citizens of a well-ordered Kantian democratic republic when using their political power to make or influence law or policy. I then contrast this Kantian conception of a just society's legal and political system to John Rawls's political conception of a just society.