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.