Thursday, 24 September 2009

Publicity and Permissive Laws

At the end of yesterday's posting I suggested that there might be some kind of argument at the close of Kant's treatment of the second definitive article of Perpetual Peace that was worth consideration and that would, if so considered, perhaps alter the view I have previously expressed concerning the division of the preliminary articles in Perpetual Peace. Now, without perhaps entirely delivering on this promise, I want to give an account of publicity that might lie at the back of the idea that there are permissive laws to do certain things that a full condition of right would not authorize.

In the course of one of the many splendid chapters of his book Justice and the Social Contract Samuel Freeman makes the following remark: "Publicity assumes that principles of justice will provide a shared public basis for political discussion, criticism, and justification. Principles that cannot gain knowing, widespread support from reasonable and rational members of a well-ordered society are to be passed over in favour of those that do." (91) I am now going to re-interpret this remark in relation to Kant's admission at the close of his discussion of the second definitive article that since nations reject the hypothesis of the world republic (despite its correctness as a thesis) then they should adopt instead the surrogate of the pacific league.

In making this claim Kant is, I want to suggest, formulating a kind of permissive law. When he formulated the notion of the permissive law earlier in Perpetual Peace he indicated that such laws permitted to continue in the present something that would be outlawed in the future. If we take the future here to refer to the condition under which right was fully and completely realized then the continuance of such separate states would not then be permitted but, under present conditions, it is allowed to remain. The ground for its being allowed to remain is only that the separate nations will not allow the abolition of themselves. Since they will not the surrogate is adopted instead.

Now if we re-formulate Freeman's account of public reason we can understand it to be saying that if a principle cannot reach agreement between all parties to discussion in a public forum then a different principle needs to be adopted instead with the intent of serving the same end as the first (rejected) principle. In this way the public opinion of those in the discussion has been respected whilst right has not been neglected. This is, I think, the consideration by which Kant proposes the pacific league. What brings this closer to Freeman's account than would otherwise be the case is that the pacific league is formed by republics uniting together. Since republics are moral persons (unlike despotisms) then their public agreement is akin to that between individual members of a state of nature.

Reverting to the division of the preliminary articles: the argument considered in the posting of two days ago assessed it in relation to principles of publicity. The point here was that principles 2-4 are all ones that can be assessed publicly and it is the fact that they can that enables an understanding of what is at issue in delaying their implementation since measures that lead towards full recognition of them can be commonly understood. By contrast, principles 1 and 6 are ones that cannot be assessed by public methods which is why they have to immediately cease. This argument works also by considering public opinion as a rightful force operative within the moral personalities of the international set of states. However, there remains a problem with understanding the fifth article (concerning non-intervention) as one that requires immediate implementation. It is unlike 1 and 6 in being available to public measurement. It is also not congruent with the first definitive article since one of the grounds for this article was that republics are more inclined to peace than despotisms. Since this is so, the existence of despotic constitutions is itself not merely something not in accord with right but also something that tends to constantly produce conditions of war. Given these points there are reasons for treating despotisms as little better than states torn by civil war and with regard to the latter there is permission to intervene. So shouldn't there also be a ground to intervene to overthrow despotic regimes? I will return to the topic of intervention in future postings.


Timothy said...

I tend to side with those who say the federation is not necessarily exclusively composed on republics. All Kant seems to say is that it is made of free [frei] states, in the sense that these states are not dependent on any other state (not that they are "free" internally). Further, I also think a republic is an ideal that never actually exists: see the metaphysics of morals. All states are imperfect to different degrees. So there is an element of provisionality always present.

Further, while some of what you say above makes sense, I am not sure that a "permissive law" is the way to describe it. Does it matter that those who are subject to the law don't even accept the permissive law at this point? It is not that they are delaying implementation-- they don't even feel themselves bound by it.

Gary Banham said...

You are right that Kant doesn't explicitly say that the federation is composed only of republics though in referring to "free" states it is hard to see what else he could mean when the contrastive term to republics is despotisms. There are also clear grounds for saying that you are always dealing with imperfect states and that there is some element of provisionality present but this doesn't stop it from being the case that states tend more or less toward the republican ideal. Despotism, by contrast, is a state that constantly tends towards war so states in that condition are always on the edge of the convergence into disorder that permits intervention.
On the use of "permissive law" it is true that the states in question are not admitting being bound by the law to turn themselves into a republic so perhaps I am stretching the expression. But it is a notion that is remarkably like that of a permissive law surely?

Timothy said...

"So shouldn't there also be a ground to intervene to overthrow despotic regimes?"

No. Perhaps after war, but not as an intervention.

The republic, which would lead to peace, is merely an idea or ideal. No state matches it perfectly. (We've learned that recently.) If I make the judgment that a state's constitution is too imperfect and despotic, and you say that means I can intervene, then that allows all sorts of intervention. peace will be disruptted. In kant's day, there weren't many pseudo-republics. That's an awful lot of potential war. or, remember also that despotic regimes can govern like republics for kant.

All in all, your analysis would allow a lot more war. It could draw it back to being like 1 and 6. Since my private judment about what the other regime is like would supposedly allow me to intervene, if I judged it not a republic. Moreover, there is not an obvious public test of this, so it leads to war. It is similar to mental reservations in (1) in this respect.

However, Kant does not say we can forcibly intervene in non-republics (at least in 5). He just says states. You could argue that, as kant says elsewhere, only a republic is literally a state. But this leads to problems allowing intervention everywhere or virtually everywhere. (see above) Kant allows intervention only in extreme cases. Even in civil war and anarchy (to clarify a bit what i said earlier) kant doesn't allow intervention-- the conflict has to become critical. Otherwise, we leave people to deal with their own internal illness. It is not clear at what point the conflict becomes critical, but I suppose it has something to do with it being clear to everyone that this is more than just an internal illness- the moral person will die and people will be in a state of nature. Maybe it is the difference between protracted civil war and a short one.

Timothy said...

"Despotism, by contrast, is a state that constantly tends towards war so states in that condition are always on the edge of the convergence into disorder that permits intervention."

You're discussing relations between states here. That is more for the second definitive article, on international right.

In prelim article 5, Kant roughly prohibits interfering with the affairs of another state. Kant begins: what could justify this? What you're basically saying the "domestic affairs" are in some cases not purely domestic affairs (because they have effects on others). Kant says a mere scandal is not enough to intervene. You're saying that a certain constitution is a threat to others, and cause for intervention. That's plausible, but it's different. Moreover, your logic is potentially detrimental to peace; if a mere threat were enough, we are in the state of nature, where we make judgments about that, and can interfere. There are not public standards (are there?) that we all agree on about when a threat is a threat. So this would make peace impossible-- 5 becomes like 1 and 6.

Timothy said...

On 16:14:
Also, provisional right might be the better term, if still imperfect one perhaps.

Timothy said...

"little better than states torn by civil war and with regard to the latter there is permission to intervene"

I think this highlights a difference between us. I do not think there is a "permission to intervene" in states torn by civil war -- in the sense of a permissive law. Granted, this is permitted. But the law does not permit it. It just does not forbid it. Alternatively, it is an exception, but it is built into the content of the law (See the bottom of that long footnote, where Kant talks about ius certium, and how rather than listing exceptions to general laws, there should be a general principle for those exceptions).

On either of these two possible interpretations, there is still not any room for subjective latitude for EXECUTING the law. You always don't intervene, period.

If you have already intervened, then what? Well, look at original conditions for when intervention was permitted. Can you continue to intervene based on those standards? E.g. is it at a critical point? Notice that the standards don't change.

In the permissive law with 2,3,4 the intermediate standards can change (I can keep a married state in existence temporarily) but the end must be kept in mind (restoring its independence.) Here, it is not simply the end that is kept in mind, but the original standards (and exceptions?) that apply to would-be interveners even before they have intervened. That's my imperfect suggestion.

You may say: this is odd. A state can intervene before the critical point, and stay if the war has afterwards reached a critical point. This is like Jeremy Waldron's idea of superseding historic injustice. Indeed, it is like Kant's idea of revolution. Revolutionaries should not be unjust and disobey existing authority. But the same rule that condemned revolution (obey existing authority) also demands that people give honest obedience to the new revolutionary leaders.

The notion of honesty is important here,I think. Moreover, what's scary is that we can imagine that some interventions in civil wars might sucessfully create the conditions where only the interveners can preserve order and protect the conditions of right. But this is like the case of the revolutionaries. It is not about giving legal effect to past putative acquisitions. It is about not examining the origin of the authority.

Timothy said...

Note also: moral personality in states may be the *capability* of being a republic, or governing in a republican manner. So despotisms (who are not in the state of nature) may have moral personality.

Gary Banham said...

OK: you are right that drawing the conclusion I did has the potential to lead to further war. I don't, though, see the question of the status of despotic states as being as open to interpretation as you suggest since a republic involves a separation of powers. Even though no state incarnates the republican ideal perfectly the distinction involved in a separation of powers is present (albeit imperfectly) in some states and not present at all in others. So there is a distinction. Further, the general claim that despotisms tend to produce war is a clear one in Kant's argument for the first definitive article.

Gary Banham said...

It is more for the second article but the defense of the first article is where the claim about republican peace is made.
As to being in the state of nature: that is where Kant claims we are, in relations between states. Since that is where we are there are grounds for taking mere threat to be sufficient. This is even asserted in DR: Ak6: 346 (section 56).
However to say that 5 becomes more like 1 and 6 due to lack of public standards is untrue due to the presence (in some form) of the separation of powers versus its absence. This can be tracked in a public way.

Gary Banham said...

"Provisional right" is the kind of right that applies in the state of nature so in a sense it is perhaps the right term though the difference between provisional right and permissive law is not one I have yet found articulated that clearly. Why I liked "permissive law" was because it refers to something permitted in the present due to standards of the past that ideal standards of the future would not allow. And that's pretty much what I think I described.

Gary Banham said...

OK: the term "permission" to intervene might seem strong though there is obvious reference to permission in the idea of a permissive law!
There isn't a claim that you always don't intervene period: that doesn't make sense of the discussion of five. Intervention is carefully circumscribed there but the notion of the condition being "critical" requires interpretation. What can it mean if not either a) the war has created some kind of general crisis for the people living there (humanitarian intervention) or b) the nature of it has created a general problem for peace?
Surely both also apply to the conduct of despotic regimes?

Gary Banham said...

The claim that despotisms could have moral personality doesn't accord with the description of them that Kant gives. Despotic states are characterized by him as states in which pubic right is subverted and private ends are dominant. This is not a condition of moral personality.

Gary Banham said...

You are right that I am only discussing strict right and the points you raise about equity are well-taken. The general considerations I am working with are mainly from PP though and he doesn't here make reference to the kinds of case from DR that you mention.

Timothy said...

Gary- You know much more about despotic states and moral personality than I do, so I won't dispute them.

However, you seem to say that anytime there is a permission (as in a permission to intervene) there is a permissive law. This seems to me very wrong. Something can be permitted in that it is not contrary to duty (there is not an opposing imperative). The reason the category of a permissive law is suspect is that it is not clear why we would need a permissive LAW. You have other types of laws, and what is left over are the permissions. Where the law is silent, all else is permitted.

A permissive law is thought to be directed to something that is otherwise prohibited (roughly). My whole point is that intervention after the critical point of a civil war is never prohibited. So there is no permissive law allowing it if the initial intervention was done before reaching the critical point. Does that make sense?

Gary Banham said...

The relation between permission and a permissive law is intriguing. What I was suggesting about permissive law is not that it exists whenever there is a permission. You are right that permissions normally exist separately from law, i.e., allowed where law is silent so there is something odd about a permissive law. But in PP Kant says a permissive law is given in relation to something present (and past) that would be forbidden in future. So the permissive law is characterized in terms of its temporal structure there.
It does make sense to say that the allowance for the intervention in the civil war is not present prior to the critical point. However it is less clear what the critical point consists in so I tried to specify it earlier in terms of a) threat to the persons in the state in question (humanitarian intervention) and b) threat to peace generally. But both can also easily apply to despotisms.

Timothy said...

I don't know what the critical point is-- what I'm suggesting (as a possibility) is whatever you favorite critical point is, stick with that -- you can't intervene (or continue intervening) if the state isn't beyond the critical point. There's no subjective latitude here.

Now, I'm not sure this is a plausible position in its own right, but it seems one way to make sense of Kant putting 5 with the others.

Gary Banham said...

Yes he doesn't specify the critical point but it is evidently central to understanding 5. I still don't see however that this leads to putting 5 with 1 and 6!