Permissions, Deontic Voids, and the Karamazov Argument

This essay explores three topics concerning permissions brought up in Christoph Kletzer’s The Idea of a Pure Theory of Law (Oxford: Hart Publishing, 2018). Its primary focus is Kletzer’s understanding of a permission to phi as the absence of duties to phi and duties to not-phi. As Kletzer sees it, a permission is fundamentally this absence — a deontic void. Many share Kletzer’s view. Joseph Raz understands weak permissions as absences. And the usual reading of the related idea of a Hohfeldian privilege to phi is that it is the absence of a duty to not-phi. Taking the absence theory of permissions to its logical consequences, Kletzer — using what I call the Karamazov argument — concludes that there would be moral permissions even if morality did not exist (“If God does not exist everything is permitted”). I argue that this shows that the absence theory is mistaken. It is false that a permission to phi exists if and only if one lacks duties to phi and duties to not-phi. When a normative system does not exist both the duties and the permission do not exist. There is simply a deontic nothing. The same is true when phi-ing is outside the system’s scope and when phi-ing (although within the system’s scope) falls in a gap in the system. Conversely, if a normative system is inconsistent, one can have the permission and the duties. It is true that if phi-ing is within an existent normative system’s scope and the system is consistent (with no conflicts) and complete (with no gaps), then one is permitted to phi if and only if one lacks duties to phi and duties to not-phi. But the fact remains that this permission is a deontic something, not a nothing. The permission is, as a matter of deontic necessity, correlated with the duties’ absence without being reducible to their absence. The same points apply to Hohfeldian privileges. The second topic concerns the type of strong permission that Raz calls exclusionary. I have an exclusionary permission to phi if I am entitled to disregard certain reasons to not-phi and 1) if the entitlement is not exercised, I am required to not-phi and 2) if it is exercised, I am weakly permitted to phi. Raz argues that supererogation can be understood in terms of exclusionary permissions. Consider the fact that I am permitted to spend money on piano lessons, with the goal of being a concert pianist, rather than giving my money to the poor. This is so even though, if I do choose to give my money to the poor, I have, in a sense, done something I am morally required to do. Raz analyzes this moral situation in terms of an exclusionary permission, in which I am entitled to disregard the moral reason to maximize human welfare. If I choose to disregard that reason, I am weakly permitted to pay for piano lessons. But the great weight of maximizing human welfare is still there as a reason for action: If I choose to take that reason into account, I am required to give my money to the poor. Kletzer focused on the entitlement to disregard reasons to not-phi in the exclusionary permission to phi. What type of permission, he asks, is this entitlement? He claims it must itself be an exclusionary permission, which generates an infinite regress. I argue that it is a weak permission. My discussion here is, I believe, the most detailed account of the structure of Razian exclusionary permissions in print. The third topic concerns Hans Kelsen’s view that I have a legal obligation to phi if someone else (commonly an official) is empowered to exercise force upon me for not-phi-ing. Kletzer argues that Kelsen should have spoken of the person as permitted (not empowered) to exercise force. I argue that Kelsen had good reasons to speak of empowerment rather than only of permission.