My interest in the permissive law is really from a Kantian standpoint. Kant invokes the permissive law in two works: Perpetual Peace and the Metaphysics of Morals. In PP he claims that rulers are allowed to stall reform under a permissive law of nature. In the MM, he claims that in a state of nature individuals are authorized to use unilateral coercion to force others into a civil condition -- an act that would traditionally be unjust (unrecht) because such unilateral force cannot be a universal law which harmonizes the freedom of everyone.
Here are my kantemplations: 1) natural law for Kant is a system of laws of the empirical (phenomenal) world that determines the acts of individuals. It is not the "natural law" of natural law theorists which claims that one can know God's laws through one's reason. Kant does grant that we can know the moral law through our reason, and that in fact the only "religion" we can have based on such an assumption is one that posits very general and rational "laws". We can know the right act, we can "know" that God exists --indirectly--, but that is about it. We cannot have true knowledge of God or his commands because we cannot experience him/her/it. All we can do is experience our freedom and go from there. SO, a permissive law of nature is a bit odd. If laws of nature determine one's action, this is a law that doesn't determine one's action? It is a permission on that account? (This would be the PP reading)
OR
2) That in certain empirical (nonideal) conditions, some "natural laws" cannot apply because the necessary structures, say for justice, are lacking. Recht, for Kant, requires a civil condition, and a state of nature is one that ipso facto is not a civil condition. Thus nothing can be unrecht in this state. It appears then that Kant does not need to appeal to a permissive law of nature in a condition which is by definition on that is unrecht. However, Kant does appeal to this "law of nature," and further calls it a postulate of practical reason. Katrin Flikschuh argues that this postulate is linked to Kant's 3rd Antinomy in the first Critique. That is is a logical necessity to overcome the gulf between freedom and determinism. However, scholars such as Brandt argue that the permissive law is merely the result of the empirical conditions. One is allowed "permitted" to do something one is typically forbidden to do -- namely use unilateral coercion.
There are two ways to go with this. A) the state of nature is a state of unrecht (a la Hobbes) and that one is permitted to use coercion as a form of self-defense. This would jive nicely with Kant's Hobbesian moments in MM, Religion, Conflict of the Faculties. However, to take this approach has little to do with "postulates of practical reason." Maybe... hmmm... ??
It also opens the door to many more actions of this nature in the international realm. If one can use coercion in a domestic instance -- then why can one not use it at the international level too? I can coerce people to join states, but under Kant's system I cannot force them to join a cosmopolitan state or even a "federation of free states."
B) If Flikschuh is correct and this permissive law is just a way to get at the 3rd Antinomy, then why does Kant invoke it in PP? Moreover, Kant also alludes to the permissive law in the second portion of the MM -- the Doctrine of Virtue. So, what would virtue have to do with the 3rd Antinomy? The only thought I can come up with on this is that virtuous action is free action; an act done from the right motives and in accordance with Tugend and Recht. If one does not have the ability to be free -- i.e. is determined -- then one cannot be virtuous. But there is only one small passage in the Tugendlehre that notes the permissive law. All other areas are either in the Rechtslehre or in PP. Since all other areas are noted in instances having to do with RIGHT (Recht) then the motives of one's action does not matter a lick. What matters is that one performs/forbears (eventually) the act in question. If this is the case then freedom may take a back seat. Indeed, if one can be coerced into performing right acts, then one can be completely determined either by a state (laws) or by "laws of nature" and this will be legitimate under Kant's theory. A teleological theory of nature is completely compatible with this reading and solving the 3rd antinomy doesn't even matter. One can take the antithesis as true and still keep moving.
So, what is the damn role of the permissive law?!
5 comments:
The permissive law gives a capacity to put others under obligation through one's unilateral will, an obligation they would not otherwise have. Some authors (i think Hurka and Byrd) say it is like a legal power. Before a certain year, you could buy a condo in the U.S. It just was not a legal "capacity". Your language seems to focus on actions, which is ironic, since you talk about state *capacity* so much on this web page. Perhaps you're focusing too much on the capacity of those with the duty, and not enough on the permissive law creates a duty to recognize this capacity in others' actions?
Tim Waligore
I meant: "Before a certain year, you could *NOT* buy a condo in the U.S. It just was not a legal "capacity"."
Anyway, I'd suggest the permissive law creates capacity (or rather, recognizes it after the fact) because of a lack. What is not otherwise allowed is the willing of a law binding all unilaterally. A permissive law makes up for this lack, because the alternative gives up any conditions of freedom. That's actually not strictly contradictory--but freedom cannot will that without being left without any capacity to extricate itself from this situation.
Similarly, in the passage in CF you cite, monarchs create state capacity allowing for the conditions for reform and implementation...
I am with you on the capacity bit, as Hurschka claims it is a "power conferring norm," but I think right now there is something else at work too. Flikschuh and Brandt want to argue that it is a "dark preliminary judgment" that one makes before legal institutions make judgments peremptory. Flikschuh also thinks that the postulate with regard to right as lex permissiva is a "provisional" solution to the antinomy of right. I personally think everyone is correct and incorrect at the same time. Kant uses the idea of a permissive law in too many places, and in too many different ways. It is not simply the ability to put someone under an obligation to respect my "provisional property" - it is, I believe more complicated than that. If you look at the debate - everyone collapses certain distinctions and assumes away other ones. I would like to give a little more credit than that. By the by, which Byrd and Hruschka piece are you referring to? The property one on "Why I Must Keep my Promise"? That one draws rather vaguely off of Hruschka's piece on the PL, but that piece too has its problems.
"In the MM, he claims that in a state of nature individuals are authorized to use unilateral coercion to force others into a civil condition -- an act that would traditionally be unjust (unrecht) because such unilateral force cannot be a universal law which harmonizes the freedom of everyone."
Where does Kant say this? He talks about the permissive law in private right. I can see how you might extrapolate this but he doesn't actually mention the permissive law in this context.
Also: I probably was referring to the solely authored Hurschka piece. I have read about 2 or 3 articles authored by him or co-authored with Byrd in the last month, so it's a bit hard to keep them straight.
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