Achenwall, Kant, and the Division of Governmental Powers

in Kants Naturrecht Feyerabend

Abstract

In his Jus Naturae, Gottfried Achenwall gave a clear distinction of the distinct role of legislative, executive, and judicial functions or powers in a state. Kant modeled his Doctrine of Right in the Metaphysics of Morals closely on Achenwall, but made it clear that in a republic the division of functions has to be realized in a division of governmental persons or agencies, with the legislature superior to the other, which are agents of its sovereignty, even though the executive agency has to have a monopoly on the use of coercion. In a postscript, I suggest that the American ideology of three “co-equal” branches of government in a system of “checks and balances” on each other is a myth, and that the US Constitution actually conforms to the Kantian model of the superiority of the legislature, not merely by describing the legislature first in its Article I, but subtantively by granting only the legislature the power to impeach officers of the other branches and to initiate amendments to the Constitution, even though both of these powers may be exercised only with great difficulty.

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