Democracy and political morality in Kant’s philosophy of law: principles for a foundation of judicial review

Abstract

The study detects a tension in constitutional democracies, as they mix elements arising from liberalism, republicanism and democracy. Two authors are illustrative of this tension. On the one hand, Kant did not see any problem in the combination of republicanism and liberalism, but thought that democracy is incompatible with liberalism. Habermas, on the other hand, sees no tension between republicanism and democracy, but rather between republicanism – which for him is synonymous of constitutional democracy – and liberalism, which is a tradition of thought going back to Carl Schmitt. The text discusses basically how Kant integrates normative elements of law into his philosophy of law, without, however, establishing effective mechanisms to address the deviations from the proposed normative standards. 

Key words: Kant, liberalism, republicanism, democracy, judicial review.