Tuesday, 22 September 2009

Publicity, Peace and the Preliminary Articles

I previously argued that the division of the preliminary articles of Perpetual Peace that Kant gives is not well justified but, in an extended comment on this posting, Tim suggested a basis for this division that was grounded both on appeal to considerations of publicity and those of peace and Tim's arguments are worth extended treatment. But first it is necessary to reprise the preliminary articles and Kant's division of them.

The first article concerned secret reservations when making peace treaties, the second inheritance of states by exchange, purchase or donation and the third the abolition of standing armies. The fourth covered external debt with regard to the affairs of a state, the fifth was the controversial banning of intervention in the constitutions of other states and the sixth concerned dishonourable stratagems in war. Kant divides them in the following way: the first, the fifth and the sixth are to be stopped at once whilst the second, third and fourth can be postponed being put into effect. In my earlier posting I questioned whether Kant had provided clear and good reasons for this division suggesting that his account of it marked a low point in the exposition of Perpetual Peace.

In response Tim suggested a number of considerations that make it worth revisiting my verdict. The first article concerns secret reservations and, in a sense, it is less than clear when these are at work though the general indictment of them is evident in terms of peace (but difficult to relate to questions of publicity). With five and six (non-intervention and dishonourable stratagems) these practices are, Tim suggests, ones that would, if allowed, make everyone insecure. Due to that it is a good idea to end them immediately. The aim is to increase general security in doing so though, it needs to be pointed out, that six, involving as it does secretive conduct, is, like the first article, intrinsically difficult to evaluate in practice. Only the ban on intervention in the constitution and affairs of other states is one that can be clearly measured though there are good reasons for viewing it as controversial.

If we turn to the three articles that Kant gives a right to postponement of, then, in these cases, Tim suggests, we have always got something intrinsically public in view. The purchase of a state occurred publicly and in accordance with norms held by those engaged in the practice. Invalidating the present status of the state in question now would add to insecurity. Standing armies and public debt are also intrinsically public and the point of that would be that progress with regard to these matters would be itself public. So other states can tell what you are doing here and whether you are moving towards the desired end but, in the interim, immediate implementation would create more problems than postponement.

Tim's account is better than the explicit one provided in the text where Kant appeals only to a kind of possession in "good faith" that held with regard to the articles that can be given postponement referring to a kind of public opinion holding (although Tim's account does, at one point, refer to this). The problem here is why this reference to public opinion should be thought to have normative standing? The only rationale appears to be the one Tim makes explicit: security/stability of the general system of states. Since public undermining in an immediate sense of articles 2-4 would increase instability there is a case in public reason for delay.

The substantial problem with this reconstruction is that the description of the need for immediate implementation of the fifth article concerning non-intervention doesn't really fit. Whilst the presumption that allowing intervention into the affairs of other states would create instability is not, prima facie, unreasonable, there is a problem with it. This is that certain kinds of states may possess constitutions that make them more likely to be troublesome to their neighbours. Indeed, something like this claim is made in the argument for the first definitive article. Due to this claim being made there it is not evident that stability/security in a general sense is up-held by immediate implementation of the fifth preliminary article. It might be generally better to delay implementation of it until after the aspiration of the first definitive article has been met. This creates a problem with viewing the fifth article as kin to the first and the sixth, as the first and the sixth involved actions intrinsically secret in nature as opposed to the public ones of 2-4. Hence the fifth article is an anomaly and doesn't fit the rationale of Tim's reconstruction (although his original note making his case for this reconstruction does admit this).

On these grounds, I would have to say I am still not convinced that the division of the preliminary articles is well articulated by Kant.


Timothy said...


Quick follow-up suggestions:

The role of public opinion: it is (or is like) customary law. It is necessarily public. It regulates conflict. It may not be the best content for that regulation, but it shares some similarities with right or law. Compare to the Metaphysics of Moral, remark E, on punishment and public justice arising from the people.

Timothy said...

Also, 5 might be able to fit in better than thought.

We can see this by asking: what if 5 were grouped with 2, 3, and 4? With 2, the permissive law concerned acquisitions that have already taken place supposedly, and is strict about acquisitions in the future. What if it were permitted to delay implementation of 5 as with them? There are two ways we might think of delaying implementation.
(a) Beginning an otherwise prohibitted intervention
(b) Not ending an intervention that was initially prohibitted. For example, a lot of people were against invading Iraq, but now fear that anarchy would result if we left now.

I think you're thinking of (a). I'm thinking more of (b). However, note that we can justify staying without ever referring to a permissive law by referring to the very wording of 5 (or Kant's reasoning for 5). Kant says others can intervene when there is anarchy. Well, that's exactly the conditions under which someone might stay an intervener should stay: to prevent anarchy. True, the anarchy may have been materially caused by his intervention (which is illegitimate if done before a critical stage of conflict is reached internally). So in 5, there is no permissive law for an illegitimate intervener to not leave the country. Rather, the very phrasing of 5 would have allowed intervention in the same conditions under which the intervener is now there. (However, the intervener, if his illegitimate intervention helped caused the civil war, may arguably be under a duty to aid-- i.e. stay if that helps-- that others do not have, at least not as strongly-- note that Kant only says that others may intervene in cases of anarchy, not that they must).

Gary Banham said...

With regard to public opinion: the problem I have here is that there is no basis given by Kant's comment for understanding its normative status. Since Sidgwick there has been a lot of talk about "common sense morality" and perhaps he means something like this but there needs a lot more filling in of this idea than is given in the discussion Kant has. The remark in the Doctrine of Right suggests that it is not individuals who give the but "the court (public justice)" (Ak. 6: 335) and surely the difference between them points to a problem like the one I am raising?

Gary Banham said...

Your account of 5 is interesting but in a sense indicates more than ever why it doesn't fit. 1 and 6 are to be implemented at once whilst 2-4 can be given postponement, some form of permissive delay. Now if 5 is to be implemented at once this is due, you indicated in your initial comment, to the fact that otherwise there is insecurity resulting. I argued in response that the existence of certain types of constitution might in fact produce insecurity in a general sense (as Kant suggests in his argument for the first definitive article).
Now you are saying, by contrast to your initial view, that we could interpret (5) in two different ways. You are right that these two interpretations both appear valid and point to different circumstances but the effect of applying your distinction is to divide 5 into two so that understood one way it fits with 1 and 6 whilst understood another way it goes with 2-4. This surely shows that the interpretation of 5 is unstable and hence that the division of the preliminary articles, inasmuch as we include 5, still can't be clearly justified?

Timothy said...

Gary: when in my second comment on this thread I drew the distinction between the two interpretations of delaying (5), I did *not* mean to say these interpretations were equally valid. So I don't think this supports the idea that (5) is unstable with respect to whether it belongs to the strict or wide prelim articles.

Indeed, I hoped to explain why it might appear 5 doesn't fit, while also explaining how it could. (A sort of error theory.) Let me spell this out more.

Here's article 5: "No state shall forcibly interfere in the constitution and government of another state."

Let's say there is a state in the area we call "Somalia". No other state can interfere according to (5). Let's say there is no state in the area called "Somilia." It seems that (5) does not prohibit interference. This is not an exception, or at least not the same type of exception as the one at issue. The prohibition is simply: don't interfere with other states... It says nothing about interfering with Barbie dolls or classrooms or anarchic areas. There is no subjective latitude here. It might appear that way, because whether or not I can "forcibly intervene" seems to "depend" on whether or not there is a state, that is, vary with circumstances. But where there is no state, there simply is no prohibition. Period. There is no permissive law about delaying, etc.

Ok, now having said that, I have to change something I said above.

Timothy said...

Having reread the preliminary articles in the Yale 2006 translation, I have come to a new conclusion about what 2 means, and this may help us out here.

"Although all the laws cited above are objectively - that is, in the intention of those in power-, purely prohibitive laws (leges prohibitivae), some of them are nonetheless of a strictly valid kind, which are applicable irrespective of circumstances (leges strictae), and which require that violations thereof be abolished immediately (such as nos. 1, 5, and 6). But others (such as nos. 2, 3, and 4), although not exceptions to the legal rule, nonetheless allow for some subjective latitude with regard to their application, depending on circumstances (leges latae) and permit a postponement of their execution, as long as one does not lose sight of the end that allows this postponement. The restoration of freedom that has been taken from certain states in accordance with no. 2, for instance, may not be postponed to a nonexistent date (ad calendas graecas, as Augustus was in the habit of promising), which would amount to the nonrestoration of those states' freedom. Rather, postponement is permitted only so that such restoration not be implemented too hastily, thus counteracting the very purpose of the legal rule. For the prohibition here concerns only the manner of acquisition that is henceforth to be prohibited, but not the status of possession. Although it does not have the required legal basis, this status was nonetheless in public opinion at the time, considered lawful by all states (at the time of putative acquisition)."

Ok, more below.

Timothy said...

Ok... this comment is in tension if not outright conflict with my second comment on this thread. This is because I actually think what kant is saying is much more supportive, in effect, of the status quo, which was formed by violence, etc.

Ok, first let's understand what (2) is and is not saying.

Prel. Article (2) says: "No independently existing state (whether small or large) shall be acquired by another state through inheritance, exchange, purchase or donation." (Gregor trans. in this comment)

Then he has this language about how the state is not a belong, "Like a trunk, it has its own roots: and to annex it to another state as a graft is to do away with its existence as a moral person and to make a moral person into a thing, and so to contradict the idea of the original contract, apart from which no right over a people can thought." Kant then adds in a very interesting footnote: "A hereditary kigndom is not a state that can be inherited by another state, but the right to govern it can be inherited by another physical person. In that case the state acquires a ruler, but the ruler as such (i.e. as one already possessing another kingdom) does not acquire the state.)"

So suppose Charles is the king of Spain. Now, suppose he becomes the king of Smallville according to the internal rules of Smallville. This does not mean that Spain acquires Smallville. Smallville acquires a ruler. Another physical person may have the right to govern Smallville after Charles dies, but Smallville and Spain may have different ways of selecting the next person. (Different rules of succession for example.) Even if the two countries do not differ in their rules of succession, they are still two separate countries.

However, if two countries have had the same king like this for a while, it may be tempting for the king of Spain to treat the kingdom of Smallville as if it belonged to Spain now.

So King Charles of Spain and King Charles of Smallville is the same physical persons, but he acts in different capacities. He cannot use the people of smallville against enemies that nothing to do with the concerns of smallville, but only for spain. In the original contract, the people could not possibly have agreed to further interests of a completely separate moral person.

Timothy said...

So let's say the Charles, King of Spain and King of Smallville, proclaims: Smallville is part of Spain due to inheritance. Or, the public "law" of Europe, at the time of the putative acquisition, recognizes that "domains" can be inherited like this.

(When Kant refers to "public opinion" I take it to be like customary law, or what shapes customary law. So primogenture may be *not* what should be instituted, but it was what was in effect at many times. The point is simply that in law, you can't always refer to the ideal standards, but at sometimes have to give effect -- if only temporary effect -- to the standards of the time when the putative acquisition was made)

So to restore a state to their freedom DOES NOT necessarily mean that Charles would not continue to rule Smallville. Kant seems to think a state can be free (in theory) with a ruler who rules two or more states. So the ruler just has the restore the freedom of the state. (And not do things that violate the original contract. However, having violated the original contract, the people may not want him to immediately undo the effects of the violation, as this may lead to the undermining of the contract, which they don't want either. The end is for the interests of the people, that they exist in a condition of right, or something like that. (the interests of a state are not conceived in terms of happiness; see the Metaphysics of Morals). For more on delays, see Kant's comments on heritary nobility, for example.)

Timothy said...

So: I've concluded that restoring the freedom of a state that was "inherited" need not involve changing any rulers. Rather, what needs to be changed is the way that they state is ruled. It must be ruled for the people (i.e. it must pass the test of legitimacy in the IDEA of the original contract-- the policies of the ruler (or, perhaps more accurately given the german, those who have power) must be tested against that which the people could possibly have given their consent).

Timothy said...

Ok, I have to apologize... I have no idea how many comments I have posted (they are moderated and so unseen), but it's a lot! And there's lots of digressions -- I haven't really answered why 5 is different from the others.

Gary Banham said...

OK: lots of comments now. Starting with Somalia, as you describe it: the problem I was raising with 5 is of a different sort to the contrast between Somalia so described and existent states. What I was saying was that some forms of states might as well be Somalia in terms of the fact that the state they possess causes as much dislocation and problem as not having a state at all. Indeed, something like this thought motivates the first preliminary article. So why the delay with regard to 5?

Gary Banham said...

Thanks for the citation from the Yale translation which makes clearer than Gregor's the difference between the status of possession and the manner of acquisition and the fact that it is the latter, rather than the former, that is the problem with 2.

Gary Banham said...

The reference to customs and public opinion in your account here is one I want more on. Is it the case that this is a pragmatic stance or is there a principled reason to accept the standing of a formed public opinion?

Timothy said...

On public opinion:

Kant draws a distinction between two points of view (see section 36 of MM). What is right in itself (from the view of the state of nature, how we judge it by ourself) and right from the point of view of public justice, what is laid down as right by a court. They can differ. Customary law is like what is laid down as right. Public opinion is a public court of justice in some sense. (see also section 35 on speaking ill of the dead in public.)

There's a lot to explore say here. The basic thing is that public opinion has the element of systematicity. Right is not simply about what is just and good. After all, we can disagree what is just. If each of acted on what we personallly thought was just, we would be in the state of nature. So what is laid down as right is important. Otherwise the point of right would be defeated.

Further, the element of honor is important, as it has some similarities to right. It is not an illusion, but is "true".

Gary Banham said...

The distinction in section 36 of DR concerns the difference between judgment in a general human sense and the judgment of a court and I don't think this really touches on the question of public opinion in a normative sense though I have explained this idea now, to my satisfaction at least, in the 24th September posting on permissive laws.
I like the discussion in 35 of speaking ill of the dead as here there is a clear normative sense of public opinion. I'm not clear where you get the reference to systematicity from.

Timothy said...

Gary- I'll have to look back at your earlier posts. One thing I do remember. You (like others) neglect non-strict right. (In Kant's discussion of equivocal right.) Kant there talks about equity, and says such appeals to equity must be brought before a "court of conscience (forum poli)" whereas "every question of what is laid down as right must be brought before civil right (forum soli)" (6:235)

In 36 MM: Kant says that the moral person that administers justice is a court.

Perhaps there is something regarding states as moral persons that draw on conscience of civilized states?

Timothy said...

Judgments before civil courts often differ from judgments in the state of nature. This is in part for ease of administration (see 37-40). Is this merely pragmatic? It might seem so. But I think this has to do with security of rights, which is not just "pragmatic." I can't dependent on your opinion of what my rights are. Otherwise my rights are not secure. So we need an impartial judger. But if the judge gets involved in more than the data he has before him (e.g. in judgments about people's intentions and states of mind that were not publiclly expressed, ie. about equity and the purposes for entering the contract) the judge will not be able to issue a clear verdict. It is for the sake of security that there is a concern for adminsitration. I don't know, there's more to say here. I think this is where some of the action is, as opposed to just talking about permissive laws.

The systemacity comes in a variety of places. one place is that since we need systematicity, we need adminsitration by courts and impartial judgers, not each judging on its own. But that leads to judges adopting a certain perspective not necessarily fully congruent with what is right in itself. The civil judges leave out certain considerations, and judge without reference to them.

I worry you are saying right has to be strict right, we as Kant only says we need not separate right from an authorization to use coercion, not that we must distinguish them initially.

The question is whether anything other than coercion can have power, since power is a condiiton of external ownership. I wonder if custom can have power. or not.

Gary Banham said...

Sure judgments before courts of law differ from those in the state of nature. The reason is that the constitution of the civil power has created circumstances of justice that are different. I don't take this difference to be just pragmatic but then I don't think of the court as guided by "public opinion" or if I do then I am going to want to give a lot of content to this notion. It's possible to do so but requires serious conceptual work that doesn't arise from reference to the section of DR you point to. I don't take this to be a question of permissive law in any case.
The place of strict right is central to Kant's general system: a great deal depends on it. But I haven't yet tried to demarcate the area of it and separate it off from non-strict right. Again, this wouldn't be a simple matter.

Timothy said...

No doubt strict right is central to Kant's system. I am just wondering whether it is helpful to pay attention to non-strict right.

For example: is strict right possible in the international arena? Is that why we need a substitute? Because the conditions for a system of truly strict right are not present? Or is the permissive law something different than strict right? I think there might be connections, as strict right is supposed to purified of anything ethical- ethics has to do with ends, whereas as right (or strict right at least) does not have to do with ends. But the permissive law does mention ends.

Also, I am NOT saying that in the perfect civil condition public opinion matters. Indeed, in the passages of MM I mentioned earlier about punishment, Kant talks about duelists being in the state of nature (and from there we might get a lesser punishment, because of the notion of honor). So, kant is quite clear that punishment according to the pure standards of right (the death penalty for murderers) is a categorical imperative.

Timothy said...

Also, Kant commands us to be a jurdicial man, to be an honest man (first precept of ulpian in the intro to the doctrine of right). Juridical honor is important in the doctrine of right. We should act according to jurdicial honor without regard to consequences.

But there are other kinds of honor. For example, a junior officer is insulted-- he feels he has to defend his honor in a duel. He could die, so he is not necessarily concerned with his life. He is not cowardly. This is honor according to public opinion. A similar matter for the honor of sex. A woman would be dishonored if it became publically known that she bore a child outside marriage. So it seems the state can be lenient with her and not execute her, unlike other murderers. Punishment according to "the idea of punitive justice" and justice as it arises from the people differs. Again, we have the subjective and objective perspective.

Part of Kant's theory of right seems to be that objectively we give some credence to subjective public opinion. The honor of military men is not an opinion about "justice" but it is like justice in that it is not simply concerned with consequences.

Timothy said...

Anyway, Kant also talks about honor in terms of people (savages) going to war not just for material gain, but because they see a certain nobility in war, in displaying courage. (See the first supplement to Perpetual Peace.) Kant does not seem to speak entirely negatively about this. (See also the Critique of Judgment.) He says of course elsewhere that this is savage freedom, not lawful freedom. But is it not still a type of freedom? (And not impulse?) I'm not too sure about that.

But one other thing: you said I was mentioning ideas in MM that aren't in PP. Perhaps. But two things. First: honor *is* mentioned a lot in PP. Indeed, you might even say that Kant is discussing (and critiquing) the idea of political honor held by statesmen, whereby increases in military power, etc. are esteemed. These statesmen want recognition, one might say.

Second, in MM, Kant discusses the right of necessity. He gives the famous plank example: two people blamelessly are at sea, and only one can grab the plank and live. Is it wrong to push the other to get the plank for oneself? Kant says that this deed is not to be judged inculpable, but only unpunishable. We should not confuse subjective impunity with objective impunity.
Are there connections between the terms subjective and objective and the discussion of the division of the preliminary articles in PP? Indeed, Kant talks about strict right (ius strictum) and right in a wider sense (ius latium) in MM under ambiguous right (Ius aequivocum)-- compare this to the terms in PP.

Gary Banham said...

I agree it is helpful to pay attention to right in a manner that is not strict when we are addressing the international area. This is, I agree, why we need surrogates as permissive law is something else than strict right.
Thanks also for clarifying your view on public opinion in the civil condition.

Gary Banham said...

Thanks for these remarks about honour and how they relate to public opinion. Would have to consider this elsewhere but it is useful to be reminded of it.

Gary Banham said...

Interesting point about honour in relation to war and I remember the passage from the 3rd Critique very well (preference for the general over the statesman). Will get to the supplements to PP again in later postings.
Not convinced that savage freedom is really freedom to be honest.
Haven't got to any passages yet in PP where honour is mentioned in the current run-through but will discuss them when I do. There is something similar in the discussion of permissive law to that of ambiguous right in DR agreed.