Neutrality in liberal legal theory and Catholic social thought.

AuthorBreen, John M.

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 INTRODUCTION

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? If, instead, the state were to make the award or denial of benefits based upon a public hearing, what would a neutral proceeding look like? What would constitute a neutral set of adjudicative procedures? For example, would neutrality be satisfied if the rules allowed for the presentation of evidence and the cross-examination of witnesses? Would the rules be neutral if the proceeding permitted but did not require representation by counsel? What would constitute a neutral burden of proof? And how could the state satisfy neutrality in allocating this burden between the parties?

Lastly, with respect to the ongoing dispute concerning the legal status that should be afforded same-sex relationships, some have argued that the laws that define marriage in a traditional sense are not neutral, but are in fact discriminatory against same-sex couples. (8) Indeed, some contend that "just as there was no neutral way for liberal theory to justify prohibiting interracial marriage yesterday, so there is no neutral way to justify prohibiting same-sex marriage today." (9) Claims of this sort demand either that the meaning of "neutrality" be clarified or that the concept be abandoned. Is the state acting in a neutral fashion by limiting marriage to couples composed of one man and one woman? Does it violate neutrality by requiring the marital partners to be of a certain age? Does neutrality demand that the legal status of marriage be extended to include relationships where the partners involved are of the same sex? Does neutrality require the state to recognize the existence of such relationships simply because the parties desire such recognition? Would the law be neutral if marriage were available to groups of three or more individuals? The law recognizes a wide variety of other relationships, such as employer and employee, buyer and seller, doctor and patient, parent and child. Moreover, significant legal consequences often follow from the recognition bestowed upon these relationships. Does neutrality demand that the state ignore these relationships such that they no longer function as categories within our legal system? Must the state treat every relationship exactly alike regardless of its content or the identity of the persons involved? (10)

That the answers to at least some of these questions are not immediately apparent suggests that the concept of neutrality is in need of some elaboration. In the Article that follows, I seek to clarify what "neutrality in law" means in two basic, though sometimes disparate, jurisprudential perspectives.

The first perspective is liberalism, precisely because it is liberal theory that so keenly insists on the importance of neutrality in law. Beyond this, however, the meaning of neutrality in liberal thought warrants especially close attention for a number of reasons. First, as a historical matter, liberalism as a jurisprudential perspective has provided the intellectual foundation for much of the American legal system. Indeed, liberalism has been "the dominant secular approach to matters of government and society in the West for at least the past four centuries." (11) Despite the frequent claim that we now live in a "post-liberal" age, this continues to be the case. Second, as noted above, (12) many of liberalism's most thoughtful proponents contend that the idea of neutrality is central to the liberal project. If neutrality is "the organizing principle of liberal thought," as some insist, (13) then examining liberal theory should prove fruitful in understanding the meaning of "neutrality in law." Third, despite the tendency of many legal scholars to embrace ideas borrowed from one or another jurisprudential school of thought, liberalism remains the dominant point of view among legal academics. Notwithstanding the wide variety of intellectual perspectives available, liberalism remains the philosophy with which all serious reflection on American law must contend.

Of course, there has never been "any single, authoritative version of liberalism." (14) Rather, liberalism is an intellectual tradition, that is, "an argument extended through time in which certain fundamental agreements are defined and redefined" through a process of responding to external critiques and internal interpretive disputes. (15) As such, liberalism has developed through the contributions of many thoughtful commentators (16)-far too many to attempt to address in a detailed and comprehensive fashion within the confines of a single article. In the Article that follows I will, from time to time, make reference to one or another particular author within the liberal tradition. Nonetheless, as a template for the exposition of liberal neutrality generally, I will make use of Andrew Altman's splendid summary of the main currents of liberal legal thought. (17)

The second perspective on legal neutrality that I wish to explore is the one offered by the body of papal encyclicals, conciliar documents, episcopal statements, and other magisterial texts collectively known as modern Catholic social teaching. (18) The documents that make up this teaching have addressed a number of topics, including the plight of the poor and working classes; (19) the problems of economic justice posed by international trade and globalization; (20) the nature of the family and the need to protect its place in society; (21) the morality of abortion, euthanasia, and capital punishment; (22) the treatment of ethnic and racial minorities, immigrants, and refugees; (23) and relations among peoples and nation-states and the need to build authentic peace in a world often savaged by war. (24) Although these documents have long been a fruitful source of reflection and commentary for theologians, (25) over the past several years they have drawn the attention of a growing number of legal scholars. Legal academic interest in the Catholic social tradition has given rise to the creation of a journal dedicated to the subject, (26) to numerous articles in established law reviews, (27) and to books and chapters in volumes exploring the relationship between law and religious discourse. (28) Although it would be an exaggeration to say that the official texts that make up Catholic social teaching offer a systematic treatment of jurisprudence...

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