Kant's Idea of the Permissive Law

Kant discusses the idea of permissive law twice in his published works. In the ʽPerpetual Peaceʼ it is used in order to provide the ruler with permission to postpone particular measures of the reform demanded by the idea of perpetual peace if their premature implementation would frustrate their purpose or undermine the success of the entire reform. In the ʽDoctrine of Rightʼ the permissive law contributes to grounding the right to private property by giving persons authorization to unilaterally put others under obligation with respect to some external object of choice. The relation between these accounts of permissive law has been interpreted in two dominant ways. For R. Brandt Kant’s treatment of permissive law in the ʽDoctrine of Rightʼ is consistent with the one in the ʽPerpetual Peaceʼ. The object of permission in both writings is temporary violation of some general command as necessary condition for achieving an obligatory end: tolerating unjust condition prohibited by the idea of perpetual peace or allowing infringement on freedom of others implied by private property. Permissive law is thus ʽthe law of exceptionʼ which allows actions that would otherwise be prohibited. J. Hruschka on the other hand contests the compatibility between two writings. While he agrees with Brandt’s assessment of permissive law in the ʽPerpetual Peaceʼ, Hruschka maintains that Kant has abandoned that understanding in the ʽDoctrine of Rightʼ. Rather than permitting exception to general prohibition, permissive law becomes ‘power-conferring norm’ which applies to merely allowed or indifferent actions. It grants rights that did not exist before it and thus authorizes actions that would otherwise not be forbidden, but simply (legally) impossible. J. Weinrib’s synthetic reading of both writings however convincingly demonstrates that Kant’s published discussions of permissive law are neither uniform nor incompatible. The difference between them is, according to Weinrib, result of different normative domains in which the notion of permissive law is employed: public right in the ʽPerpetual Peaceʼ and private right in the ʽDoctrine of Rightʼ. This paper aims to show that essential features of the permissive law from the ʽPerpetual Peaceʼ remain preserved in the ʽDoctrine of Rightʼ. In the former writing Kant warns that permission should not be conceived as a subsequent addition to prohibitive or preceptive part of the law, which covers exceptional cases, but must be included within the law itself as a limiting condition. According to this, notwithstanding the difference between normative structures in which it is applied, permissive law is neither exception to a general rule nor authorization to merely allowed actions, but qualification of a prohibitive or preceptive law which is indispensable for fulfilling the duty imposed by it. The law qualified in this manner in the ʽDoctrine of Rightʼ is Universal Principle of Right. Although it does not prohibit external possession, it is silent on it, prescribing a rule only for actions. The permissive law enables extension of that rule to external objects of choice allowing the right to intelligible possession as necessary condition for the full exercise of external freedom.