What are Kant's Permissive Laws?

Question

My new term brings new questions, this time concerning Kant's "Perpetual Peace" (you can read most of it here).

The preliminary articles can be differentiated: All of them are prohibitive rules, but some (1,5 and 6) are "strictly valid without regard to circumstances". The other ones are permissive laws. It is these that got my attention.

As Kant writes, these leges latae (preliminary articles 2,3 and 4) "may be legitimately put off". Why does Kant establish the permission law? How can there be a law (especially in Kant's theory) that doesn't claim universal validity in absolutely every case? How can there be a "may" in Kant's moral theory, and even more, how can it be called a law? Why is it needed? Is it a logical need or rather a pragmatic, "timeserving" one (to explain why some changes do not have to be made right away)? And why does it exist in the natural law, but not in ethics?

Answer 1

To understand what the permissive law is we have to examine the origination of the civil society as Kant sees it. We will then see that the permissive law isn't ad hoc at all but an important part of Kant's whole philosophy of law. As I did not read enough to give a systematic summary of that yet, I will leave this part to others and focus on the steps required for the argumentation.

We ordinarily assume that no one may act inimically toward another except when he has been actively injured by the other. This is quite correct if both are under civil law, for, by entering into such a state, they afford each other the requisite security through the sovereign which has power over both. Man (or the people) in the state of nature deprives me of this security and injures me, if he is near me, by this mere status of his, even though he does not injure me actively (facto); he does so by the lawlessness of his condition (statu iniusto) which constantly threatens me. Therefore, I can compel him either to enter with me into a state of civil law or to remove himself from my neighborhood. The postulate which is basic to all the following articles is: All men who can reciprocally influence each other must stand under some civil constitution. (Kant, Perpetual Peace, Footnote 3, my emphases)

The compulsion of the others to enter into a state of civil law can be violent. What we see is this: There is a prohibitive rule to use violence in general, but there is a permissive law that allows violence in certain circumstances, namely for the erection of the state, a legal constitution. It is similar for states which, between themselves, act as individuals. As long as there is no international constitution, individual states are "in the state of nature". To overcome this state and to constitutionalise their interactions, certain otherwise prohibited acts become temporarily permitted. Every thought in this book serves one purpose: the creation of a legal condition between states. It is Kant's philosophy of law on a higher level all over again. This is also why we don't find the permissive law in ethics.