Kletzer’s Direttissima

Abstract

Abstract Kletzer believes that, by focusing upon permission, we can derive the law’s obligatory power from the idea that the world is normatively inert. In a normatively inert world, everything is permitted. Consequently, if the law operates by permitting the use of force, it requires no deep normative underpinning: it could even invoke moral nihilism as its basis. Although ingenious, this argument faces two formidable problems. Firstly, in a normatively inert world, permissions can have causal effects but no normative effects. And secondly, the normatively inert world cannot be assumed as an uncontentious given or derived from the shortfall between what is and what ought to be, as Kletzer supposes. It requires a contestable metaphysics. Although accepting the unity of practical reason, Kletzer rejects the traditional natural law position on the grounds that law and morality are of dissimilar form, so that law cannot be grounded in morality. At the same time, he fails to offer any explanation of that difference in form. Once we have a satisfactory explanation of this difference, we see that it is precisely the difference in form between law and morality that enables us to understand law’s basis in morality. Individual moral engagement and reflection can flourish only within communities governed by law.