Thursday, 12 November 2009

Publicity and Intention: Kant and Pogge

In an article that has been printed in a number of places on the question of whether Kant's Rechtslehre is a comprehensive liberalism Thomas Pogge inserts a note that specifically addresses the question of the exclusion of "inner states" from the domain of right. In this note (note A) Pogge makes a number of assertions concerning this exclusion that strike me as not only false but as indicating a serious misunderstanding concerning the relationships between "inner states", intention and publicity. In this posting I want to outline a) the basic argument Pogge makes; b) the reasons why it is systematically misleading; c) the preferable way to understand the relationships in question.

A) In the second section of the "Introduction" to the RL Kant indicates that the concept of right, insofar as it is connected to an obligation, has to do first of all "only with the external and indeed practical relation of one person to another, insofar as their actions, as deeds, can have (direct or indirect) influence on each other" (Ak. 6: 230). Pogge initially presents this as concern with "possible conflicts among actions" and then inserts the note in which he presents "three interrelated mistakes" he takes Kant to make. These are detailed separately. The first "mistake" is to associate the claim given with a distinct one, namely that inner states "cannot" be made the object of external legislation. This is not, however, what Kant says and not, particularly, what he says in the passage Pogge refers to (which is Ak. 6:220). In that passage Kant says something quite different, namely: "Ethical lawgiving (even if the duties might be external) is that which cannot be external; judicial lawgiving is that which can also be external." (first italic in text, second added by me.) So the claim is not explicitly made with regard to "inner states" at all. Instead it is said that judicial lawgiving includes but is not only based on that which is external. Now, whilst this might appear to conflict with the first claim given in the previous paragraph it doesn't do so in the way Pogge has suggested. Pogge's first "objection" is raised in order to make room for laws that concern "findings of intent (mens rea)" . As I will show in (b) below Kant certainly thinks that this is included in his account of right.

Pogge next presents Kant's "second mistake" as to conflate the view concerning "the content of legal restrictions necessary for Recht" with a point concerning the "criteria involved in such restrictions". Apparently this claim is that whilst the content of the doctrine could well exclude "inner states", the criteria for its application could not and this is something Kant is said not to recognise. Again, as I will show in (b) this is false.

The final point is to the effect that there is a further claim made by Kant that legal restrictions and institutional mechanisms, in order to fall within right, are concerned only with securing mutually secure domains of external freedom. This is said to be distinct from the initial exclusion of "inner states" and yet to be conflated with that initial exclusion by Kant.

B) The points above are all problematic and work together to produce a confused account of Kant's view. The initial statement from Ak. 6: 230 concerns "deeds" and explicitly indicates that the interest in them includes both direct and indirect influence. This is the key to it, not an exclusion of "inner states" which are not here even referred to though it is true that Kant indicates he is interested only in "external" practical relations. The interpretation of how to connect this concern with such external relations to an interest in deeds is something we need to settle.

As mentioned above, the passages Pogge cites in support of his second point that Kant conflates the first point made at Ak. 6: 230 with a further, more exacting refusal to contemplate inner actions as even possibly the object of external legislation, is not (pace Pogge) made. Rather, Kant instead says that judicial lawmaking (Ak. 6: 220) can "also" be external whilst ethical lawgiving is something that cannot be external. So Kant does not claim, as Pogge says he does, that inner states are incapable of being an object of external legislation but that ethical lawgiving is not capable of being external. This is quite a different point and suggests a limitation on ethical lawgiving, not a limitation on right. Since it follows from this point that judicial lawgiving is something that is not only "external" then this passage raises a justifiable question concerning whether Pogge can possibly have understood Ak. 6: 230 correctly.

The second point Pogge makes is that Kant conflates the point about the content of legal restrictions with the criteria involved in making such restrictions. This points to an understanding of the criteria of them as ruling out any reference to "inner states" but seems to follow from the understanding Pogge has of Ak. 6: 230, an understanding we already have reason to question. In addition, with regard to the notion of "intent", it would be hard to make sense of the whole discussion of "contract" that Kant gives in his discussion of private right if we did not assume this notion as operative in Kant's analysis. So it is hard to see how it could possibly be correct to think that the criteria involved in right could ever have been conceived of by Kant in such a way as not to include it.

The third point Pogge makes suggests a conflation between the original point at Ak. 6: 230 and a further one of understanding something as within the province of right only due to the purpose of maintaining secure domains of external freedom. However the original point at Ak.6: 230 is made prior to any account having been given of securing domains of external freedom. This latter is given in accordance with the view that right is connected to an authorisation to use coercion (Ak. 6: 231) and it is only when this latter is given that Kant fully expounds right. Afterwards he does take there to be some connection with the view of right mentioned at Ak. 6: 230 but only on the ground that this connection has been made part of the argument and he does not simply assume that it follows from the account at Ak. 6: 230.

C) Given these misunderstandings on Pogge's part let's now try to clear up the confusions his account suggests between certain principles and their relationship. So, (i) what is going on at Ak. 6: 230 and what, if anything, does it have to do with 'inner states"? Here Kant is refining the concept of right and connecting it to obligation and the first step in doing so is to state that right concerns deeds that have direct and indirect influence. These deeds, as the later argument makes manifest, are ones that concern the limitation of the freedom of others and this is their connection to the later authorisation of coercion (Ak. 6: 231).
(ii) Ak. 6: 220 is where Kant explicitly includes promises as part of right as is necessary for his later treatment of contract. Since a promise is explicitly something that would fit the category of "intent (mens rea)" it is clear that Kant is here not making the point Pogge attributes to him. Kant is here arguing that ethics involves a claim without reference to coercive power. Someone can claim something as your duty even if there is no coercive way they can get you (or get others) to perform it. Such a relation to duty holds only with ethics and not right since right is a claim that requires reference to coercion. It is this necessary way that right relates to coercion that leads me to view the treatment of promising at Ak. 6: 220 as a first statement of the view of contract given later in the account of private right.
(iii) Finally, the reference to mutually secure domains of freedom is what is given by means of the authorisation to coercion. It is not that Kant takes this authorisation to follow directly from the claim to treat "deeds" that have direct and indirect influence. Rather, Kant first enunciates the universal (or supreme) principle of right and then arrives at the authorisation of coercion.

The fundamental problem with the reading Pogge gives concerns his conception of the domain of right as not being concerned with "inner states", a view that Pogge conflates with the argument that Kant cannot cover in his view of right such an area as "intent". In fact this is quite false as Kant refers to intent in various ways in the discussion of right, not least when treating contract. What is being ruled out of consideration from right is not the general and vague idea of "inner states" but rather reference to matters that are not capable of public attention. Right is concern with that which meets criteria of publicity: this is is what is key to it, not a dismissal of "inner states". Hence, when intent is measured by it, it is not understood in a way that requires simple reference to what is "in the head" but rather what can be shown to be the actions in question and where they were tending. So the notion of "intent" Kant is working with is one that would meet a Wittgensteinian understanding of "intent" not a Cartesian one such as Pogge seems to suggest is at issue. Intent has to be understood as that which is public and accessible by reference to evidence, not something only surmised on a "psychological" construal. This is key to seeing right as a public doctrine and failure to get this is at the root of Pogge's systematic misreading of Kant's notion of external legislation.


Timothy said...

In note A, Pogge criticizes Kant and then says what Kant should have said. Are you saying, essentially that what Pogge says Kant should have said is (close to) what Kant did say?

Timothy said...

In this distinction between Cart. and Witt., is there a third option? Kant suggests we can talk about intelligible deeds taking place outside of time and space. When Kant talks about the intention to possess, maybe he means that rather than an internal mental state. Same with a contract: Kant talks about objective moments of the contract, saying they happen simultaneously not in time in space, but simultaneously in another sense (in the intelligible world).

And surely the inner state does seem to matter in punishment for kant. However, I don't think it is a psychological state. Perhaps it is or is related to the intelligible deed of allowing oneself to do an action contrary to morals when to one's own benefit (see religion). That is, to one's evil disposition (Gesinnung). I am wondering how that fits with the Desc./Witt. distinction.

Gary Banham said...

Note A does have the form you say and my argument is that in it Pogge misunderstands what Kant does say in the passages referred to so that Pogge is wrong to think Kant needs to be corrected.

Gary Banham said...

Thanks for the suggestion of a different option that is neither Cartesian nor Wittgensteinian. I was intending this as a broad contrast of two models of "inner states". It does seem to me that Pogge views the Kantian concentration on externality as precluding a reference to such things as "intent". It is, however, pretty clear that Kant did not see it that way. Surely you are right to bring in the intelligible notion here (which Pogge is, I think, trying to abstract from). The effect of it does alter things in much the way you say. However, I'm after a point before consideration of that here. This point is that first of all seeing the reference to externality in terms of publicity is the right way to go. This is by contrast to seeing externality as precluding reference to mental states. Such states are included in terms of being intertwined with action (that was the point of the reference to Wittgenstein).