RTG

Well, I am just about ready to head off to the UK and Germany.  I will be traveling to Lancaster, England to attend and present at the UK Kant Society conference, and then will be heading to Mainz, Germany to do some archival work at the Kantiana archives.  Should be good, but also like a needle in a haystack!  Then, I will head back to London to visit with my friend, Alex, and work with Katrin Flikschuh at the LSE for a couple of weeks.  

Right now I am pondering a couple of things.  Can you guess about what?  Oh yes, back to the permissive law I go!  But these are also thoughts about Kantian international right in general too.

Let's go with the easier topics first, shall we?  So, Kant claims that states ought to be viewed as "moral persons," that is, they are capable of imputable actions.  States can have agency, in the sense of that corporations have agency.  They can be held responsible, morally (and perhaps legally).  In several areas Kant makes note of a "domestic analogy" between domestic and international right.  In this sense, states are analogous to individuals.  Here is my question: how far can this hold on a Kantian domestic right view???  

Here is my thought process: 

For Kant freedom (external or juridical) is paramount.  Well all freedom really, but for the sake of political theory, let's just go here.  So actions that violate a person's external freedom are wrong.   Kant is pretty "western liberal" here in terms of I can do actions that I want to as long as I don't hinder someone else's freedom.  Kind of a proto-Millian, if you will.   

So, it would seem that actions that harm myself may be legally permissible.  They would not be morally so, as that would violate one formulation of the categorical imperative (respecting the humanity within oneself).    But, legally, there may be no problem here.  If you are hindering yourself, that is your choice.  You are at no one else's will.  

OK, so now let's think about the state as a moral person.  What happens when state's "injure themselves"?  Or, more specifically, if states have "moral personality" because of the fact that it is a collective of people (united by a general will) and that derives its significance from individual autonomy, then, what happens when a state injures its own population?  It would, in a sense, be injuring itself, because it is injuring a portion or a constituent element of itself.  

Most humanitarian intervention scholars posit that states lose their rights to nonintervention and forfeit sovereignty when they egregiously violate their citizens rights.  In effect, when they injure themselves.  Thus they are open to intervention, when intervention is otherwise prohibited.  

But I want to know if this holds.  Specifically in two ways:

1) if in domestic law we could not justify "intervening" or coercing an individual when she inflicts self harm, then can we do so internationally to states?  Does the analogy really hold?  

2) How does the logic work from popular sovereignty to state sovereignty?  States have, it seems, two forms of sovereignty at work at all times.  Internal (popular) with respect to the citizens, as the state is the supreme law maker, and (hopefully) the citizens have a say in the election of leaders, etc.  Then, there is external sovereignty with respect to other states.  The logic seems to work that states derive their inviolability and thus external sovereignty from their citizens (their internal), but as we very well know, many states do not actually treat their citizens all that well.  Indeed, Kant knew this and was not afraid to posit it quite explicitly.  So, if state's external sovereignty is contingent upon the governments upholding the rights of their citizens internally, then many, many states are open to intervention.  But, Kant did NOT claim this.  He said, at least in Perpetual Peace, that "no state shall forcibly interfere with the constitution or government of another state," a strict non-intervention principle that has nothing to do with contingency.  I think Kant could actually justify intervention, but he will still have problems with consistency.  But, more broadly than Kantian thought, can we really hold this "contingency factor" when it comes to the facts on the ground?  The international system wants to champion this idea, but in reality, it pays little heed and states consistently violate rights, but states are VERY remiss to allow for a right of HI, let alone a duty.  Hmm.

OK, so I was going to get to the trickier questions, but I believe I will have to wait.  I think I also have some more answers, especially to question number 1, but have to be careful to put them out there, in case I get scooped.

Until next time...

H

Permissive Laws

A law's function is typically to be prohibitive or prescriptive.  In other words, it either forbids or prescribes an act.  Yet, the legal system, and some natural lawyers, argue that a third type of law exists: a permissive law.  Permissive laws, are typically defined as laws that grant permission act in a manner otherwise prohibited.  Examples of such laws are self-defense and, in some cases, abortion.  The permissive law, historically, did not come into being until the Roman Empire, and after that was taken up by medieval natural law theorists from Marsilius of Padua to modern "natural law" theorists like Kant.  

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?!