In person icon Kant on Freedom, Permissive Law, and Subordination

Abstract

An a priori approach to political matters which distinguishes Kant from his predecessors provides firm ground for assessing times characterized by significant transformations on both domestic and international level. Age of crisis therefore invites us to reconsider some fundamental concepts of Kant’s philosophy of right and politics in order to gain better understanding of our actual circumstances. The panel will readdress first and foremost Kant’s notion of the innate right to freedom. As source of juridical legislation and starting point of the Doctrine of Right, which is both related to and distinct from Kant’s positive and negative concept of freedom, it is commonly regarded as pointing to necessity of safeguarding and protecting the exercise of our capacity to free choice in our external relations to others. More recent interpretations have however challenged the ʽfree choiceʼ understanding of freedom as foundationalist, offering more relational reading of innate right as independence or legal accountability (Flikschuh 2021). It is equally important to revisit the relation between the innate and acquired right. The latter is according to Kant required by the innate right as necessary condition of its full exercise in outer world, but at the same time not analytically contained in it since it assumes nonphysical possession of external objects which prima facie violates freedom of others and therefore must be additionally justified. As both derived from innate right and pointing beyond it, acquired right extends the perspectives for our free action, enabling us to conceive our external relations with others not just as space where our freedom must be protected but fully actualized as well. In this sense it is necessary to consider decoupling idea of acquired right from the mere right to own property, since the former according to Kant encompasses all of our relations to others which the state is morally allowed to guarantee and regulate in order to make exercise of our external freedom possible. However, in this context it is also pressing to question limits of Kant’s concept of the innate right by addressing the forms of civil subordination (in domestic, marital, labour relations etc.) which perhaps do not violate the legal personality nor stricto sensu contradict the innate right but nevertheless contain relations of dependence which can lead to moral depersonification. Kant’s theory is however characterized not only by its a priori principles, but also by strong sensitivity for demands of given historical context. The best proof is the idea of permissive law. In Perpetual Peace it is employed to show that it must be allowed to rulers to postpone some measures integral to the reform required by the idea of perpetual peace if their premature implementation could endanger the existence of state or frustrate the purpose of the reform. In that sense, permissive law mediates between a priori principles of morality and demands of political prudence. Kant also uses the idea of permissive law in the Doctrine of Right. There it is crucial for grounding the right to private property by giving persons authorization to unilaterally put others under obligation with respect to some external object of choice. Kant’s general account of permissive law as well as the relation between his discussions of it in the Perpetual Peace and Doctrine of Right are much debated in the scholarly literature. It would be highly valuable to readdress the question whether permissive law should be seen as an exception to a general rule (Brandt 1982; Flikschuh 1999, Baynes 1989, Ypi 2014) or ʽpower-conferring normʼ (Hruschka 2004, Byrd 2010, Blumenfeld 2024) and reexamine the relation between Kant’s discussions of permissive law in the Perpetual Peace and Doctrine of Right.

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