–Arts and letters for the modern age–

Cathode Ray Zone

–Arts and Letters for the Modern Age–

Thinking About “the Impermissible”

by | Sep 1, 2023

If something is permitted, it means that you are allowed to do it. If something is not permitted, it means that you are not. If swimming in the community pool is permitted only on the weekends, it means that if you show up on a weekend, you will be allowed into the pool. If you show up on a weekday, it will be locked and you won’t. If you break in and swim anyway and are discovered, you will be forcibly removed by staff or by the police.

All of this is perfectly straightforward and easy to comprehend. 

Philosophers, however, concern themselves with what is permissible and impermissible, neither of which is straightforward or easy to comprehend.

To say that something is impermissible is to say that it is rightfully sanctioned or punished and to say that something is permissible is to say that it is not. If eating a shrimp salad sandwich is impermissible, then one is rightfully sanctioned for doing it. If it is permissible, then one is not.

What is the significance of claiming something is or is not “rightfully sanctioned”?

Imagine the following: Wanting to swim on a Tuesday, George breaks into the community pool and is arrested. In court, he maintains that swimming on a Tuesday is permissible; that he was wrongfully sanctioned for his actions. The judge counters that it is impermissible – that he was rightfully sanctioned – because there is a law prohibiting use of the pool on a weekday.

George, however, is tenacious and armed with a little philosophy and tells the judge that the law is wrong. The judge replies that the law was properly enacted – i.e. by way of the procedures and mechanisms by which laws come into being – to which George counters that regardless of the procedures and mechanisms by which it was enacted, there is no good reason to prohibit swimming on a weekday and “one should be able to swim on a Tuesday if it doesn’t hurt anyone.” The judge observes that the law was passed by local legislators who were voted into office by a majority of the population and that this is the basis of the law’s legitimacy and is why swimming on Tuesday is rightfully sanctioned. George points out that majorities can be wrong and repeats that “there is no good reason” for the law. The judge says that George can think whatever he likes but cannot break the law and sentences him to ten days in jail.

When George says, “there is no good reason,” what does he mean? That there are none that he finds persuasive? Undoubtedly, but so what? Others thought differently and voted accordingly. That others shouldn’t find them persuasive? Again, undoubtedly, but so what? George’s reason for swimming on Tuesday – that whatever does not hurt others should be permitted – is controversial, so others could say the same thing to him. 

Now imagine that rather than a little philosophy, George has quite a lot of it; enough, indeed, for him to go metaethical. Outraged over the court’s decision – and being locked up in jail – he writes a letter to the judge:

Whether something is in fact permissible or impermissible is independent of anyone’s opinion of it as is whether or not something constitutes a good or bad reason. There is, as a matter of independent fact, no good reason for prohibiting swimming on a weekday and consequently, my swimming in the pool last Tuesday was permissible, regardless of the misguided laws that a bunch of misguided people have enacted. Thus, I was wrongfully sanctioned.

Now, it is hard to imagine any judge changing his or her ruling on the basis of something like this, and this judge is no exception, so while George remains convinced that he is right, he remains in jail to serve out his ten days.

After getting out of jail, George, who also happens to be a friend, agrees to meet you at a local park for lunch. You arrive late and see that he has already started on a kale and bean sprout salad. You join him and unpack your lunch, which consists of a shrimp salad sandwich, potato chips, and a pickle. 

George, who describes himself as an “ethical vegan,” tells you that you shouldn’t eat your sandwich, but that the pickle and chips are ok. You disagree and prepare to tuck in, whereupon he tells you that eating shrimp salad sandwiches – or anything involving meat, fish or dairy – is impermissible.

You point out that there is no law prohibiting the eating of shrimp salad sandwiches. George replies that there should be such a law but regardless, eating your sandwich is impermissible, because it violates the shrimps’ interests. You remark that you don’t care about shrimps’ interests – you find his reason unpersuasive – and observe that more than 95% of the population agrees with you and unless this changes radically, there never will be a law banning the eating of shrimps, to which George replies that majorities are often wrong and that your lunch is impermissible, nonetheless. You ask him what sanction you can expect for eating the sandwich to which he replies that there is none, but if there was, it would be rightful. Puzzled as to why you should care about any of this and annoyed at having your lunch spoiled by George’s badgering, you leave to eat with one of your non-vegan friends, whom you spot at a bench nearby.

The question of sanction is worth exploring for a moment, so let’s slightly amend our story. When you ask George what sanction you can expect, he tells you that while there is no official sanction – no jail time or anything like that – he will shun you for eating the sandwich. Now, though George is a friend, he isn’t a close one, and as he’s become quite annoying of late (imagine that this isn’t the first time he’s bugged you about your dietary choices), you find yourself relieved at the prospect of never having to listen to his hectoring again and tell him so. He departs in a huff, and you are left to finish your lunch in peace.

That one has been sanctioned would seem to be a matter of fact, but what this fact consists of requires some examination. Clearly, George was sanctioned, insofar as he suffered ten days in jail, but have you been sanctioned, simply because George shunned you? This seems less clear, insofar as you are happy no longer to have to endure any association with him, and a sanction that inflicts neither pain nor cost doesn’t seem like much of one. Does this mean that if George didn’t care about his incarceration, he would not have been sanctioned? Perhaps, but given that there are social, financial, and other costs associated with having been convicted of a criminal offense and locked up (including physical injury), it seems likely that George’s conviction and incarceration will hurt or cost him in some way or other. Let’s say, then, that the philosophical concept of sanction has an ineliminable element of subjectivity to it: if something doesn’t hurt or cost in some way that one cares about, though it may be called a “sanction,” effectively it isn’t one. [1] And this is why when sanctions need to matter – as they do in the law – they typically consist of things that hurt or exact a cost that the overwhelming majority of people do care about: loss of freedom; uncomfortable and even dangerous incarceration; financial loss; and destruction of reputation.

If one has no capacity to sanction someone or to induce others to do so, permitting or not permitting something is obviously out of the question. What good is it for George to tell you that you are not permitted to eat your sandwich, when he has no means of stopping or sanctioning you? What I am wondering about here, however, is what purpose is served in telling you instead that eating the sandwich is impermissible? That were you sanctioned, it would be rightful? You’re eating the sandwich. You haven’t been sanctioned. You aren’t going to be sanctioned. So, why should you care about George’s modal proposition? 

Perhaps the claim that you would be rightfully sanctioned is supposed to awaken your conscience; to get you to reconsider and to cease and desist in your shrimp eating. If so, it is a strange expectation. George has already stated his reasons for not eating shrimps – doing so violates their interests – and you were unmoved. What good is it to insist that if you’d been sanctioned, it would have been rightful? Thinking that a sanction is rightful depends on accepting the reasons for it, and in this case, you don’t. And notice that if you did, you wouldn’t be eating the sandwich in the first place and the claim that doing so would be rightfully punished would be unnecessary. So, it’s unclear what the point of permissibility claims is, even where the parties agree on whatever is at issue.

George is inordinately frustrated that people find his reasons unpersuasive, and I think this is true of many academic philosophers. I say ‘inordinately’ for two reasons: First, because ordinary people seem to cope more easily with this common variety of disappointment than those whom we credential and pay to engage in (what is supposed to be) deep thinking; and second, because philosophers’ reasons are almost always controversial – within the framework of academic philosophy as well as outside of it – the expectation of agreement is unreasonable to start with. That shrimps have interests or that those interests should matter to us or override all other considerations is controversial. That utility or right intention or “principle” or the “categorical imperative” is morally overriding are all controversial. So, not only shouldn’t we get worked up when our appeals to such reasons fail to move others, we should expect it and react gracefully when it happens. 

Assertions of impermissibility on the basis of reasons that are controversial and with regard to things for which there is no sanction either presently or forthcoming are entirely rhetorical; a combination of foot-stamping and clumsy efforts at manipulation. ‘Impermissible’ sounds close enough to ‘not permitted’ to obscure the fact that the philosopher is powerless to do anything about whatever it is he or she is inveighing against. Leaving out ‘as far as I can see’ and ‘to me’ when saying “there are no good reasons” or “the reasons are compelling” for x, y, or z lend an air of objectivity, determinacy and normativity where there is none. And metaethical moves like George’s appeal to moral Realism (all that stuff about “matters of independent fact” and the like) give the impression that there is some force out in the ether that will compel you, when there isn’t. Indeed, of all the moves George makes, this last one is the stupidest; a classic example of the philosophical conceit that there is such a thing as purely discursive force. If there is an “independent fact of the matter” with regard to permissibility, but no one accepts it, it has no capacity to compel action, and if enough people agree on something and are willing to do something about it, they can compel action, even if the “independent fact of the matter” contradicts it.

So, the next time a philosopher tells you that something is “impermissible” and behaves like George, take it for the expression of impotence that it is and just ignore him.


[1] Less “deep” than philosophy, the law considers a person sanctioned, so long as some such penalty has been imposed by way of the proper mechanisms and procedures, whether he or she cares about it or not.