9.2 Duties of Right in the Absence of Juridical Institutions: Three Problems

Although certain rights and their corresponding juridical duties can be said to be of a purely positive nature (their bindingness is wholly contingent upon the legal order under which they were posited), Kant argues that certain individual rights can be acquired in the state of nature and are to be taken over into the civil condition.Footnote ⁹ Rights and corresponding duties which are not ‘merely’ created in the civil condition arise from private right (Privatrecht) in the state of nature. A defining feature of acquired rights in the state of nature is their inconclusive status, and I will argue that this is what Kant means by provisional rights. Rights in the state of nature are inconclusive by definition, since only a condition of public law can provide binding closure in the event of contestation, thereby rendering the right conclusive. ‘Providing binding closure’ presupposes the authority to issue a binding verdict and is not exhausted by a claim to truth or correctness about one’s interpretation of rights (since disagreement about how rights should be interpreted lies at the root of bona fide rights disputes). In other words, authority to bind in Kant’s framework is not grounded on an epistemic claim.Footnote ¹⁰ As we will see, it is precisely the indeterminate status of acquired rights in the state of nature that motivates the duty to leave that state.Footnote ¹¹

Because we can already identify rights in the state of nature, individuals will be called upon to satisfy their corresponding duties despite the absence of juridical institutions. For instance, if A and B have agreed to buy and sell with each other, A will acquire a duty of right towards B, while B acquires a right towards A.Footnote ¹² Although A has a duty of right towards B (as the primary duty bearer), B is not able to claim her right in a proper manner in the absence of a court of justice; however, this leaves it unchanged that A has a duty of right against B. B’s claim is provisional in the sense that it cannot be made determinate (bestimmt) unless certain external conditions obtain (namely, the existence of a legal order, rules of legal procedure, etc.). Until then, B can only hope that A will honour the terms of their agreement or attempt to enforce her right unilaterally (without authority to do so) in case A violates their agreement.Footnote ¹³

However, addressing rights claims may be ‘left to individuals’ in a different way. This may be because the content or matter of individual rights can overlap with that of duties of beneficence. In this case, respecting rights (giving someone what is their due) and helping them (in Kant’s terminology: ‘adopting their happiness my end’Footnote ¹⁴) may not be clearly differentiated in the agent’s perspective, especially when agents must rely solely on internal motives to comply with duties of right.Footnote ¹⁵ As external duties, duties of right allow a wider range of motives for compliance than duties of virtue. Although duties of right do not require ethical motivation,Footnote ¹⁶ duties of right are nevertheless ‘indirect-ethical’, that is, virtue prescribes internal motivation for the compliance with right.Footnote ¹⁷

In such a scenario, A could come to regard her contractual duty towards B as merely ‘meritorious’, since no one has the authority externally to coerce her to honour her agreement. Or if A defaults and B is left in a situation of need as a consequence, C could decide to help B and enforce B’s right unilaterally. In another scenario, C could decide to provide materially for B, even though C is neither the primary duty bearer of her right nor responsible for her deprivation. In the latter case, C is addressing the need that results from A’s violation of B’s right and not the wrong as such. She is neither enforcing B’s right unilaterally nor addressing the right as a right. She is simply addressing the need that results from B’s deprivation of her right and I will assume she is acting from an ethical motivation, that is, out of respect for the moral law which commands one to take the permissible ends of others as one’s own end.

From the above, it is possible to identify three distinct problems in the state of nature:

1. 1. Individuals lack the authority to issue binding interpretations of what they take to be legitimate right claims and to coerce these rights (unilaterality problem);

2. 2. Individuals may fail to uphold the dignity of others when they conflate the strict duties corresponding to their rights with meritorious ethical duties (dignity concerns);

3. 3. Individuals may be badly positioned to discharge such duties, such that what seems right to do in the eyes of the agent may end up being too demanding for individuals (demandingness problem).

9.3 The Meaning of ‘Provisional’

Kant’s conceptions of provisional rights and of permissive laws have received growing attention in recent Kantian philosophy and Kant scholarship. Although Kant himself reserves the attribute ‘provisional’ (provisorisch) to rights, Kantians have extended the attribute ‘provisional’ also to duties. It has also become common to refer to ‘provisionality’ in general.Footnote ³⁶

In her article ‘Kantian Provisional Duties’, Heather Roff argued that in the state of nature we can identify duties that are ‘provisional’, that is, ‘conditional’ upon the agent’s ability to act. In the state of nature, duties of justice are thus ‘conditional duties’. According to Roff,

The idea that certain duties have ‘enabling conditions’, that is, that they may only apply to agents who are materially able to discharge them, is barely something that applies only to duties of justice in the state of nature. Latitude in general signalizes that practical reason is taking into account the limitations of finite rational agents for discharging a duty. All imperfect duties, insofar as they are wide duties, allow agents some latitude in deciding how to discharge the obligation, permitting them to circumvent material limitations (temporary or otherwise) or to reconcile the duty in question with other indirect duties that also require the agent’s time and resources. In the Groundwork, Kant refers once to strict duty as allowing ‘no exceptions to the principle of duty’, indirectly suggesting that wide duties would allow such ‘exceptions’.Footnote ³⁸ However, the idea of a duty allowing an ‘exception’ is misleading (and Kant himself acknowledges this later on, appearing to contradict himself).Footnote ³⁹ It is not the case that a duty ‘ceases’ to apply to the agent if she is incapacitated; it is only a determinate act token or course of action which is ruled out as an option for the agent if she is incapable to act in a specific way. The view that the duty ‘ceases to apply’ is due to a confusion between the principle of duty (the ground of obligation) and particular actions that would discharge the obligation.Footnote ⁴⁰ From a Kantian perspective, the obligation lies in the principle of duty, and not in the token actions we consider required by the principle. Actions are applications of maxims of duties to the particular circumstances of a concretely situated agent. They result from our judgement or interpretation of what we are required to do in a specific scenario, or from what is generally considered to discharge or comply with a certain obligation. Paradigmatically, imperfect duties are derived from second-order moral ends that all agents are required to adopt.Footnote ⁴¹ If a specific act-token that would fall under the description of the duty must be contingently discarded as an option for discharging the duty, this does not extinguish the duty itself, but only a possible way of complying with the duty. The agent can discharge the duty in other ways or at a later time, although she may feel sorry or even guilty that she cannot act when prompted to. This is especially the case when the need of specific persons must go unattended, since agents who are genuinely committed to a moral end will particularize moral requirements: concrete external circumstances may trigger a specific duty (say of beneficence or justice). Responding to these external circumstances is thus considered in the agent’s judgement as her moral task (what she is required to do under the circumstances). Not being able to comply with one’s moral tasks of the moment will be perceived by conscientious moral agents (i.e. agents who genuinely care) as a moral failure and a reason for regret, although this may not be objectively the case.

The comparison with wide duties of virtue seems to beg the question, since Roff is talking about duties of justice in the state of nature as being ‘conditional duties’. These are not duties involving latitude; paradigmatically they are strict and in principle externally coercible. However, there are cases in which a duty is objectively strict and yet must be treated subjectively as wide. Kant’s ethical and legal-political works are strewn with examples of objectively strict duties that are treated subjectively as wide ones.Footnote ⁴² Consider the examples mentioned by Roff, namely, preliminary articles 2, 3, and 4 of Towards Perpetual Peace. In Kant’s own words, these are laws that:

Under the wide laws (leges latae) mentioned above, we see not an ‘exception’ to the principle of right, but the preservation of an acquisition title together with the commitment to refrain from a specific mode of acquisition in the future. The title of acquisition is not deemed invalid, although its mode of acquisition is now considered prohibited. The wide law thus allows states of affairs to be brought gradually in line with the rule of right, as opposed to being retroactively corrected.Footnote ⁴⁴ This case in which a strict duty (to abstain from certain modes of acquisition) is treated subjectively as wide is what I will call a matter of moral prudence (when being too strict or too hasty in its implementation would result in undermining the moral end altogether). True, moral prudence enables a transition towards a more just legal order by allowing gradual change. But does it mean that we are dealing with a ‘provisional’ duty?

Roff argues that provisional duties are strict duties turned wide, thus enabling postponement. Roff’s interpretation is a clear response to the demandingness problem I sketched before. Because compliance with juridical duties can be extremely burdensome on individuals in the state of nature, those duties must allow for leniency. This point, she states, is not merely that ‘ought implies can’, but that there is something ‘distinctive about provisional duties that deserves attention’.Footnote ⁴⁵

However, identifying wide principles of duty (leges latae) with ‘provisionality’ ultimately obscures the reason why we should leave the state of nature in the Kantian framework. The rationale behind the duty to ‘bridge the juridical gap’ becomes unintelligible, if not circular. While latitude may be understood as a policy of ‘moral prudence’ by allowing us to protect the moral ends reason commands us to realize and avoid being overly demanding on individuals, the attribute ‘provisional’ refers to the conditions required for the possibility of obligation. At stake in the case of provisional rights is precisely their capacity to bind, that is, the moral faculty of the right holder to impose a duty on others. As I will explain, duties corresponding to acquired rights in the state of nature are possible due to permissive laws of practical reason. In contrast to the acquired rights to which they correspond, corresponding duties need not be deemed ‘provisional’.

The interpretation I defend in this chapter is that provisional rights are rights whose status is still indeterminate; provisional rights are thus still vulnerable to contestation by competing rights claims. Peremptory rights, in contrast, have a conclusive status. All other competing rights claims are thus ruled out. Provisional (provisorisch) alludes to the modality of a right. Provisional rights are rights in expectation of a future civil condition, under which they can become peremptory or conclusive, that is, morally necessary.Footnote ⁴⁶ It is thus imprecise to think about provisional rights as being ‘temporary’ as opposed to ‘permanent’, although these meanings may seem very close to the idea of a modality of rights.

9.3.1 Acquired Rights and Permissive Laws of Practical Reason

Before developing my argument in more detail, I will point out a related problematic interpretation, this time focusing on the notion of permissive laws.Footnote ⁴⁷ Permissive laws are directly connected to provisional rights. It is thus not surprising that the way ‘provisionality’ has been constructed in the secondary literature has direct implications for the interpretation of permissive laws, namely as principles that temporarily permit the morally impermissible.

Lea Ypi, in her influential article ‘A Permissive Theory of Territorial Rights’, offers the following interpretation of permissive laws:

According to Ypi, permissive principles justify states of affairs incompatible with the idea of right ‘only provisionally and conditionally’. They are thus provisional in the sense that they temporarily permit an unrightful state of affairs ‘as long as principles of right are not in place’. Therefore,

This reading presupposes the idea that an unrightful state of affairs must precede the implementation of a condition of public justice. Violence is nothing other than coercion without law, the difference being that under the circumstances specific coercive acts may actually be conducive to the institution of a civil condition. As necessary means to a morally required end, violence and thus injustice must be tolerated, but only ‘conditionally’, that is, as long as required to further the moral end. The problem with this view is the idea that something incompatible with right is permitted for the sake of right itself, a view that may sound strikingly consequentialist to Kant’s stunned readers. As Bernd Ludwig observed, although Kant did express this view earlierFootnote ⁵⁰ (and we also see it expressively formulated in 1795 in Towards Perpetual Peace),Footnote ⁵¹ Kant seems to have abandoned the ‘experimental’ idea that violence must necessarily precede Right before the creation of a civil state.Footnote ⁵² How should we thus understand the idea of a permissive law in the absence of a condition of public law? Ludwig suggests that the use of coercion must be already rightful from the very beginning, but does not elaborate the claim further.Footnote ⁵³

In Section 3.2, I will develop the idea that permissive laws enable certain legal positions in the state of nature. It is not that something unrightful must be accepted as a necessary bridge towards a rightful condition, but that rightfulness must be established ex-ante as a precondition to a future civil condition. The reasons for this are not empirical considerations about implementing ends in transitional scenarios but a rational requirement to adopt certain normative assumptions. Therefore, while the idea of permissive laws as principles of transitionality indeed applies to Perpetual Peace,Footnote ⁵⁴ it cannot be conflated with the concept of provisional rights. As already pointed out by Joachim Hruschka, we are dealing with two distinct meanings of permissive laws in Towards Perpetual Peace and the Doctrine of Right.Footnote ⁵⁵

9.4 Permissive Laws as Power-Conferring Norms

Joachim Hruschka argued that in order to understand permissive laws in the Doctrine of Right one must distinguish between two meanings of permitted actions: actions that are ‘allowed’ (erlaubt) and actions that are ‘merely allowed’ (bloß erlaubt).Footnote ⁵⁶ The actions and states of affairs that are the subject matter of permissive laws are ‘merely allowed’: they are neither prohibited nor commanded. One is at liberty to perform or not perform them. For instance, all things equal, I am at liberty to touch the tip of my nose with my finger. I am neither obligated to nor prohibited from touching the tip of my nose. What is distinctive of permissive laws in general is therefore not that they turn the prohibited into permitted, but that they turn the morally indifferent into a morally relevant action or state of affairs.

Drawing upon Achenwall, Hruschka’s insight is that permissive laws transform mere liberties (i.e. actions that are morally indifferent) into moral faculties, that is, into morally relevant actions with the power to bind others, giving rise to a proper individual right. The permissive law in the Doctrine of Right should be thus understood as a power-conferring norm.Footnote ⁵⁷ Its role is to create obligations from deeds or states of affairs that otherwise would not give rise to rights. Note that this takes place outside a condition of public law (i.e. in the state of nature).

Kant claims that ‘reason wills that this holds as a principle’. What does it mean to say that ‘reason wills’ x? Provisional rights are acquired rights in the state of nature. As acquired rights, they rely on the notion of a permissive law of reason for their bindingness. In contrast to Achenwall, who believed that self-preservation provided the moral basis for certain moral faculties,Footnote ⁵⁹ Kant thought that only an act of choice (Willkür) that also had universal character (i.e. not contingent, not unilateral) could be the basis of a moral capacity to coerce others externally. Since these conditions are only fulfilled in a condition of public right, and yet acquisition must take place before the implementation of a condition of public right, the permissive law is called upon to create a moral faculty in the state of nature. The permissive law turns a mere liberty (‘no-duty’) into a moral faculty, which creates rights and corresponding obligations. Provisional rights are thus ex ante rights.

The way Kant connects permissive laws and provisional rights follows from his apagogical argument for acquired rights in the state of nature.Footnote ⁶⁰ An apagogical argument is an indirect proof of a proposition (from the Greek apagein, ‘to lead away’). Something must be assumed to be true given another proposition, whose truth cannot be denied.Footnote ⁶¹

It is possible to think of each person making use of objects of choice (whatever these are) as mutually compatible with the freedom of everyone else. But how can we be sure that it is rightful to make use of objects of choice? For the sake of the argument, we could try to imagine what would be the implications of deeming the use of objects of choice impossible from the perspective of right. We do not need to assume that using these objects is prohibited by reason; our assumption is instead that objects of choice are beyond the scope of the principles of right. They cannot belong to anyone because the juridical concept of possession (as something that belongs to another as a matter of title), cannot apply to any external objects. In this case, we would need to assume that all objects of choice are res nullius, that is, things that cannot possibly be or become the Mine or Thine of any person. A res nullius is not merely a res vacua (a ‘vacant’ object which contingently happens to have no possessor); it is something that in principle cannot belong to anyone, that is, out of reach from the perspective of rights. However, if we take into account the very concept of practical reason, we realize that the fundamental end of practical reason itself must be Willkür or choice. Choice is about setting and pursuing ends for ourselves. It follows that if we assume, at the same time, that objects of choice (the very matter of choice) are outside the scope of Right, this would amount to denying choice as the fundamental purpose of practical reason. It would imply a contradiction.

Apagogical arguments are often identified with reductio arguments (reductio ad absurdum). However, this comparison is not very helpful for understanding how apagogical arguments can function as indirect proofs in Kant’s theory. Kant makes wide use of apagogic argumentation in the Groundwork, more precisely, in the way duties are derived from the categorical imperative. For instance, the prohibition against suicide arises from the insight that universalizing a maxim of taking one’s life whenever one is distressed would be incompatible with ‘the end of nature’; similarly, a false promise, when universalized, would contradict the very end of communication and speech. The opposite maxim of veracity must be thus adopted as a duty. Similarly, we must admit the possibility of acquired rights in the state of nature (i.e. provisional rights) because assuming the contrary would lead to a contradiction of practical reason with itself: freedom would be depriving itself of its own rationale, that is, its exercise of choice in regard to external objects (the objects of one’s choice). Therefore, it must be possible to make use of external objects (they must be included within the scope of rights) and a permissive law must be posited to confer persons a power to bind others that they could not otherwise have (i.e. unilaterally).Footnote ⁶³

Which kind of contradiction does Kant identify in his argument for the possibility of possessing objects of choice? Comparing the above Doctrine of Right passage with the Groundwork, it is not a contradiction in thought or in conception, but a contradiction in the will.Footnote ⁶⁴ We cannot will that such a state of affairs (external objects as res nullius) be the case. Why not? The assumption is a substantive one: it presupposes a conception of the nature of practical rationality in its external orientation. Reason ‘wants’ objects of choice to become the objects of choice of someone. Given the end of practical reason, it is therefore fundamental to assume that we can incorporate our use of objects under the scope of external freedom and thus of rights.

If so, why are rights to objects of choice ‘provisional’ in the state of nature? Why can’t reason also fully settle their status as the conclusive rights of someone in the state of nature? This is because even though it is possible to have objects of choice, acquiring specific objects in such a way as to enable the exercise of choice also entails an entitlement against arbitrary interference from others; my immunity from interference requires an ability to impose a corresponding liability on all others not in possession of my object not to interfere with my exercise of choice. I must thus be able to bind all others to respect my possession. The right is provisional because I can only bind under universal conditions (omnilaterality), and these conditions are not given in the state of nature.

A possible objection to the interpretation of permissive laws as power-conferring norms in the Doctrine of Right would be the idea of natural permissive laws. These appear in his discussion of personal rights akin to rights to things.Footnote ⁶⁵ I have argued that the role of permissive laws in the case of provisional rights is creating a moral faculty, not turning the morally impermissible into the morally permissible. At least in the case of sexual/marital relations, Kant did seem to think that the permissive law would be turning something prohibited, namely, enjoying another person as an object, into something permissible, that is, an exclusive and reciprocal personal relationship in which the partners mutually acquire each other (Kant’s conception of marriage). Kant postulates that sexual relations between persons of the opposite sex are permitted by a ‘natural’ permissive law.Footnote ⁶⁶ One may wonder why the permissive law is deemed ‘natural’ in this and in the other two types of personal rights. For the sake of brevity, I will focus on marital rights.

As Kant explains, in the state of nature ‘there can be societies compatible with rights (e.g. conjugal, paternal, domestic societies in general, as well as many others); but no law “you ought to enter this condition” holds a priori for these societies’.Footnote ⁶⁷ There is thus no duty to enter such personal relations. And yet, there is something about our human nature that makes these personal relations both unavoidable and morally problematic. They have to do with facts about the human species (sexual desire, procreation, the need to form a household). While biological facts per se do not give rise to rights, we see the rational need to bring personal relations that are shaped by these fundamental biological facts under the scope of Right. The permissive law is ‘natural’ in this case because it involves empirical aspects of human life that would not automatically involve rights; however, these relations must nevertheless be brought into the sphere of right for their very moral possibility.Footnote ⁶⁸ And this seems to contradict my previous interpretation of permissive laws.

Unlike external objects of choice, there would be no contradiction of practical reason with itself in depriving oneself of sexual relations with another person. In fact, Kant is puzzled about the idea of enjoying another person sexually; he suggests that sex is the most objectionable way in which one could instrumentalize another rational being. However, Kant is ambivalent about why one should nevertheless allow heterosexual sexual relations between consenting adults. While he argues that reproduction of the species requires sexual relations (and this is his argument for rejecting same-sex sexual relations and bestiality) he nevertheless does not restrict heterosexual sexual relations to reproduction; surprisingly, a possible motivation he acknowledges for engaging in sexual relations is not the intent to procreate but the enjoyment of each other’s sexual organs for the sake of pleasure.Footnote ⁶⁹

For Kant, sexual relations must be regulated by Right not because they promote external freedom, but because only exclusive rights to each other can ensure the reciprocity required for sexual relations to qualify as compatible with the right of humanity in our persons. The argument seems to be the following: since engaging in sexual relations amounts to enjoying a person similarly to a thing and threatens to reduce them to their sexual organs, mutually acquiring each other (possessing each other as a whole person) to the exclusion of others from the same relation, is necessary for restoring the spouses’ status as complete persons within their sexual relationship with each other. Does the natural permissive law turn a morally ‘abhorrent’ state of affairs into a morally acceptable relationship in the case of marriage?

Again, the permissive law plays a power-conferring function, this time within a personal relationship. It is the permissive law that creates the moral faculty that enables the spouses to possess each other in the first place. Note that the claim goes beyond the mere consent of the involved parties to be in such a relationship. Sexual relations per se do not give rise to any claims to exclusive possession of one’s partner; only a permissive law can do that. There is something a spouse can claim against the other spouse even if she is no longer invested in or committed to the relationship.

The difference between a natural permissive law and the permissive laws I discussed before is that a natural permissive law does not need to give rise to provisional rights; the duties and rights arising from marriage do not commit us to entering a civil condition for their bindingness as does possession of external objects in the state of nature. This is because we are dealing with claims to persons; no possession of external things is involved.Footnote ⁷¹ Despite Kant’s claim that one can fetch a partner who ran awayFootnote ⁷² similarly to the way one would recover a lost thing, ‘possession’ in that case is a metaphor for the privilege spouses have over each other and in regard to everyone else. Although marriage benefits from the existence of a civil condition, the obligations marriage impose on other people (their lack of privilege in regard to one’s spouse) does not require omnilaterality conditions to be in place in the way possession of external objects does.

9.5 Conclusion

Kant’s apagogical argument is driven by the rational requirement to avoid a contradiction of reason with its own fundamental assumptions. Rechtswidrig (what is ‘against Right’) is thus defined as what would be self-contradictory, given fundamental, Kantian assumptions about the nature of practical reason and external freedom. The postulate thus extends practical reason by creating a moral faculty to bind.Footnote ⁷³ Provisional rights are rights in expectation of a future civil condition.

According to the transitionality reading sketched before, Kant’s concern in formulating his legal-political theory is to account for the implementation of principles of justice under non-ideal conditions: the imperfection or complete absence of political institutions, the messiness of politics, the frailty of human nature, the need to overcome past practices that are incompatible with right and to progress gradually towards a condition that is closer to rational ideals. My criticism is aimed at accounts that identify or conflate ‘transitionality’ with ‘provisionality’. I have argued that Kant’s account of provisional rights is based on the avoidance of contradiction; the argument is thus purely formal (‘rational’ in Kant’s sense of the term). This does not mean that his theory does not have the advantages highlighted by the proponents of the transitionality reading. But in the spirit of Theory and Practice and of transcendental idealism, the view I defended in this article is that Kant’s theory can be applied to the real world primarily because it is rational, not because it is sensitive to ‘non-ideal’ conditions. Prima facie, the requirements of reason stand in a strong contrast to the complexity and messiness of reality. In order to be feasible and realistic, it seems intuitive to expect normative theories to be able to be sensitive to the particularities of a world in transition, and to allow for flexibility and a certain degree of compromise in the implementation of its goals. This is certainly true of some aspects of Kant’s political thought, namely, the leges latae (the imperfect, wide principles) discussed in Towards Perpetual Peace. In their case, a permissive law is a principle of moral prudence, allowing the postponement of reforms to a later, more opportune moment. In regard to provisional rights, however, Kant’s message is instead that reason itself must interpret the world as a normative landscape, structured into a coherent system by rational principles. Where coherence is not given within the system, it must be brought about as a matter of duty. In this case, it is our task to change the world to conform to the requirements of reason, and not the other way around. My recommendation is thus to keep what can be rightly identified as Kant’s theory of transitionality apart from his theory of provisional rights, and not to confuse the two.