Tuesday, 8 September 2009

Permissive Laws

After setting out his somewhat unconvincing account of the division between the preliminary articles of perpetual peace Kant inserts a footnote that discusses at some length the basis of his claim that there can be such things as permissive laws. The specific focus of the note concerns the way in which the second preliminary article (concerning the right to acquire a state through inheritance, purchase or donation) has been mitigated in the division of the preliminary articles.

In discussing this question Kant first mentions the apparent paradox involved in the very idea of a permissive law. Laws generally involve practical necessity whilst the notion of a permission seems, by contrast, to involve practical contingency. So a permissive law appears contradictory as implying a necessity for some contingency. However Kant seeks to escape this consequence by speaking of the different ways "the object of the law" can be meant (Ak. 8: 347n). The prohibition involved in the law here is directed to the future. There can be future permission to acquire a right in the manner forbidden by the second preliminary article. By contrast, the permission is directed to the present state of possession. The reason for the present permission concerns the general transition from the state of nature to the civil condition. In the process of this transition occurring there is a possession held which, whilst not in accord with right, is still, as Kant puts it, "possession in good faith".

This "possession in good faith" is said to accord, not with right, but with a permissive law of natural right. This type of possession is still an odd one since Kant makes clear that once its cognition has occurred it would not be granted either in the state of nature or in the subsequent civil condition so its right to be granted is only in terms of transition between two states that would, in themselves, grant no ground to it. The fact that there is a transition between the state of nature and the civil condition in which there are in effect permissive laws that neither of the states in question would grant indicates a peculiarity about this intermediate state. Rather than seeking to justify this concept further Kant merely indicates that the notion of a permissive law has to be specified in the way given since the only other way is to state a law of prohibition and then build in exceptions to the law into the formula of the law itself, something he thinks would ensure that there were no universal laws but only general ones.

The other interesting point worth raising is why it is that Kant's discussion of permissive law contains no reference to the 3rd and 4th preliminary articles (concerning standing armies and the national debt) but only the 2nd (on inheritance). Given that the 3rd and 4th preliminary articles have been treated in the same permissive way as the 2nd one would have expected the reasoning for the idea of a permissive law to include some consideration of all of them and not merely one of the articles effected.


Tim Waligore said...

On your last paragraph: I think Kant would allow permissive laws with regard to articles 3 and 4 for the same (or similar) reasons to the ones he would for 2. It was not right to have acquire in a certain matter. But the acquisition has already been done. The permissive law give some effect to status of possession, allowing it to continue. Similarly, I gather, standing armies and public debts should not have been 'acquired', but maintaining them now that they are here may be a different matter. Is there a more fundamental difference you see with 3 and 4?

Gary Banham said...

Thanks for your comment Tim. I agree that Kant's argument with regard to standing armies and national debt would be similar in structure to that of acquisition of another state by means of inheritance, exchange etc. The fact that the discussion focuses only on the second article seems to be because of the fact that the subject of it directly concerns a case of acquisition although it is natural to think of this with national debt. I do, though, wonder about the notion of "possession in good faith" in the cases of standing armies and national debt. Does that really describe the relation to them?

Tim Waligore said...

First, I was happy to find someone commenting on Kant. I found this blog while reading part of your book on Kant and practical philosophy (the sections where you discuss the postulates, as I'm trying to work on how the permissive law and the juridical postulate of practical reason works in the Metaphysics of Morals).

Second, I wonder what translation if any you're using. I thought the Gregor was a little more confusing (or at least different) than, say, the new Yale translation, or the older hackett translation. In the Hackett, the term used is not 'in good faith' but 'honest'. I think Kant is attributing importance to systematicity, and public opinion, what its flaws, at least represents a system of norms (as does right). Compare section 9 of the Metaphysics of Morals.

Third, it's not usual for Kant to use acquire in ways we might not. Kant says in 'private right' in the metaphysics of morals that we may acquire corporeal things, people's performances, and another's status in relation to us.
Here's a suggestion about what is acquired (or prohibited, rather, with respect to acquistion): standing armies are contracted soldiers for a long duration. In effect, they increase the power of the person who they contracted to. More specifically, the person/state who pays them may be said to thereby to acquire their performance to fight, when the state so chooses. (Here comes in Kant's worries about the right of humanity, and why Kant thinks citizen militias are OK)

Gary Banham said...

Cheers Tim: interested to hear what you think of my book as well though that would obviously take longer but feel free to email me about aspects of that should you wish to comment on it.
I am using Gregor's translation which I generally prefer but tell me about the new Yale one: who is it by?
I like your systematicity interpretation and agree with the connection with section 9 of the *Metaphysics of Morals*. I'll get around to commenting on the latter at some later point. In the meantime have a look at my article "Publicity and Provisional Right which you can download from here:

No problem with the notion of acquisition with regard to standing armies.