Neutrality in Liberal Legal Theory and Catholic Social Thought
Breen, John M., Harvard Journal of Law & Public Policy
INTRODUCTION I. FOUR KINDS OF LIBERAL NEUTRALITY II. FOUR COMMITMENTS IN CATHOLIC SOCIAL THOUGHT A. The Status of Rights in Catholic Social Thought 1. Rights as Less than Absolute 2. Rights and Duties 3. The Good and the Right Reconsidered a. The Untenable Nature of Complete Neutrality b. The Common Good as the Norm of Social Life c. The Nature of the Right and the Priority of the Good 4. The Civilization of Love: The Goal of Social Life a. The Central Importance of the Family b. The Liberal "Goal" of Social Life: Pluralism and the Civilization of Tolerance B. A Realist Anthropology 1. The Human Person: Freedom and Intellect 2. Love: The Fulfillment of Human Freedom C. Neutrality and the Political Process 1. Positive Support for Democratic Government 2. Human Dignity as a Limit to Democratic Legitimacy D. Neutrality in Adjudication 1. The Problem of Enforcing Unjust Laws 2. Legal Neutrality and the Absence of Partisanship CONCLUSION
Liberalism is widely regarded as "[t]he dominant strand of American political philosophy," (1) and neutrality is often identified as one of the defining features and virtues of the liberal state. (2) Not surprisingly, then, talk of neutrality deeply informs our public discourse concerning not only the nature of law and the structure of legal institutions, but also the content of particular judicial opinions, legislative acts, administrative rulings, and executive orders.
Frequently, however, what is meant by "neutrality in the law" is far from clear. (3) What quality in law does "neutrality" describe? What does it mean to say that a legal institution or a particular juridical act is "neutral"? Does it refer only to the identity of the decision maker, the nature of the forum, and the procedures employed? Does it refer also to the kinds of argument that will be entertained and advanced in support of the ultimate decision? Finally, does "neutrality in the law" relate to the actual resolution of the dispute, the content of the decision itself?
To put the matter more concretely, suppose that the state criminally prohibits the consumption of a certain hallucinogenic substance. Suppose further that a group of individuals ingest this drug as part of a ritual that is central to their firmly held religious beliefs. (4) Does neutrality demand that the state refrain from banning the substance? If so, does the state violate the principle of neutrality by forbidding the consumption of any particular substance? Could the state, in a neutral fashion, ban the use of the drug for some purposes but not for others? For example, would the state violate the principle of neutrality if it recognized a religious exemption from the general ban (5) or if it permitted consumption of the drug for medical purposes but not for recreational use? (6)
Likewise, consider a state-created social assistance program that provides subsistence benefits to qualified individuals. (7) Would the very existence of such a program violate the principle of neutrality? That is, would the act of drawing a distinction between individuals who are "qualified" and those who are not, with the attendant provision of resources to the former and not to the latter, mean that the state is acting in a non-neutral fashion? If the state later terminates the benefits it once provided by means of a summary administrative decision, has it then violated the principle of neutrality? What if the state official assigned to determine the merits of an application for benefits knew or was somehow related to the applicant? Would neutrality then demand the use of another decision maker or the use of an entirely different method for making the determination? …