Permissions, Deontic Voids, and the Karamazov Argument

Abstract

Abstract: This essay criticizes three positions concerning permissions taken by Christoph Kletzer in his book The Idea of a Pure Theory of Law. First, Kletzer argues that Hans Kelsen should have understood X has having a legal obligation to φ if and only if someone else is permitted (rather than empowered) to exercise force upon X for not-φ-ing. Kelsen in fact had good reasons to speak of empowerment rather than only of permission. The second topic concerns the type of strong permission that Joseph Raz calls exclusionary. Kletzer argues that Raz’s definition of an exclusionary permission generates an infinite regress. In what is arguably the most detailed account of the structure of exclusionary permissions in print, this essay defends Raz’s definition. The third and primary topic concerns Kletzer’s understanding of a permission to φ as a deontic void: the absence of duties to φ and of duties to not-φ. Many share Kletzer’s view. Joseph Raz understands weak permissions as absences. And the usual reading of Wesley Newcomb Hohfeld’s related idea of a privilege to φ is that it is the absence of a duty to not-φ. But the absence theory is mistaken. When a normative system does not exist, there is no permission to φ, even though there are no duties to φ or to not-φ either. The same is true when φ-ing is outside the system’s scope and when φ-ing (although within the system’s scope) falls in a gap in the system. Conversely, if a normative system is inconsistent, one can have a permission to φ and a duty to not-φ (or to φ). It follows that a permission, even a weak permission, is a deontic something, not a nothing, and that weak permissions can have an effect on our practical reasoning. The same points apply to Hohfeldian privileges.