THE LIBERAL. DOCTRINE OF STATE NEUTRALITY ATAXONOMY*

Ttacey Rowland

The doctrine of the ethical neutrality of the state is frequently invoked by liberal theorists in examinations of the ambit of state authority in relation to moral issues Professor Jeremy Waldron claims that the ancestry of the idea of the 'ethical neutrality' of the state may be traced back thraugh John Stuart Mill's essay On Liberty and Immanuel Kant's ~VetapbysicalElements of Justice at least as far as John Locke's Ietter Concerning Toleration and maybe even further While many, perhaps all,liberal theorists endorse some form of the doctrine, issues pertaining to both the substance and application of the doctrine are far from being settled In his essay entitled Legislc~tionand ~MorulNezltrulity,\Valdron observed that there is not just one doctrine of liberal neutrality,or one liberal view, but rather several such views,'each based on premises and yielding practical requirements that differ subtly from those involved in each of the ~ t h e r s From this observdtion,Waldron concludes that: ' ~ Diffcrtnt lines of argumenr for the liberal position will generate ~Wercnt conceptions of ncuttrality wllich in turn will generate different and perhaps muto:llly incompztiblr requirements;a the lrvrl of legisldtivcpncrice 3

Tt;tccy Rowland BA (Hons) ILB (Qid); B Iitt MA Grzd Dip Mod Iang

(Mclb) Commonwealth Scholar Gonville & Caius Cullrgt.Cambridge Waldron J Iibernl Rights Collected Papers (1981-1991) Iondon: Cambridge University Press 1993,143 \Yihile the idea of neutralitymay be concrpn~allyrelated to the notion of toleration these earlier theorists 'lid not mention neutrality as such and it appeafs that at somc point these two concepts of toleration and neutrality have become blurred by a presumprlon that in order to be tolerant one must also be neutral \Valdron J Iiberal Rights Collected Papers (1981-1991) London: Cambridge I Jniversity Prrss 1993 143 For the major works of Dworkin,Acknmm and Nozick covering the subject of neutrality see Dworlun R A ~MntteroJ Principle Cambridge: Ilarvard University I'ress 1985 Hampshire, S (cd) Liberalism' in Public and Bivate morality I'linciton: Princeton UniversityPress, 1978 Nozick,R Anarrhy State and Utopia Blackwell,1984;Ackerman.B Sodc~llustice and the Liberal State New Haven:Yale 1JnivtrsityPress, 1980;m a t 15Neutral about Neutrality? (1983) JanuaryEthics 93 Waldron, J Libeml Rights Collected Papers (1981-I991) London: Cambridge contrary to that ot BructAckerman in his work Sooic~lfurticein the Liberal Smte

University Press, 1993, 152 Such ;t position is acknowledged by Waldron to be


Since the neutrdity doctrine, or some variation on it, is frequently invoked by liberal theorists to defend legislation such as the Rzghts of the Terminally IllAct 1995(NI) and the Acts Amendment (Abortzon) interpretations of the doctrine which are currently defended by scholars of jurisprudence in the liberal tradition and to point to the various difficulties each position faces in defending the proposition that the cloctrine is not biased against non-liberal positions 4 Although the doctrine has been the subject of criticism from scholars within the natural law tradition of Catholic jurisprudence, the purpose of this article is not to rehearse their criticisms but rather to examine the various versions of neutrality from the perspective of the internal logic of their positions 5

Act 1998 m),this paper seeks to provide a taxonomy of the various

The major theoretical division within the liberal tradition is between those theorists who believe that the state ought to remain neuual even with sespect to the promotion or suppression of liberal philosophical claims, and those, like William Galston and Joseph Raz, who argue that exemptions may be made for the promotion of particulac liberal values This difference is summacised by the terms 'political liberalism' and 'perfectionistliber~sm'The former;favoured by John Rawls and Charles Larmorr,refers to a set of values which though 'liberal' are not meant to be conceptually dependent on any particular philosophy of liberdism According to the political liberals the values which may be legitimately promoted by the statemust be distilled from the philosophyof liberalism in such a manner that no trace of the philosophy remains,but merely ;I substrateof free-floatingvaluesfor the'domain of the political',that is,the legiskdtive, judicial and executive branches of government This is because the property of neuudity could not be sustained if the state is seen to be favoming any particular philosophical or theological outlook, be it Liberal, Marxist,Secular-humanist,Judeo-Christian or Islamic This process of distillation which Rawls describesas'political constructivism'

whereinAckrrmanposits the argument that it is both possible and desirableto be as liberally noncommittal about the justification of nrutidity as we are about the issue of the good life itself h b r s eActs altered the C~zminnlCode 1913 OVA) sl99 and the Health Act 1911 OVA) s344 to make abortionlegal and widely available For criticisms from a natural law perspective:George R Pl~blicReason & Political Conflict (1997) %le Lnw Journal 106 Iarmore, C Iiberaljsm and the Neutrality of the Sratr Potterrns of ,Morn/

Complexity London: Cambridge University Press, 1987; Rawls J Liberalism NewYork:ColumbiaUdversity Press, 1993 Political


invokesthe doctrine of neutrality so as to preclude particular non-liberal conceptions of the good from becoming a part of the 'domain of the political', that is, from being enshrined in legislation or forming some element of the jurisprudential framework of the judiciary' This process of the distillation of the philosophical foundations of liberdism from the political values of liberalism is, however, highly problematic Eamonn Callan, for example, has described political liberalism as a 'closet ethical liberalism'since a partially comprehensive doctrine of the sort that ethical liberals have traditionally advanced is embedded in Rawls'idea of the reasonable Similatly,IhomasNagel has argued that Rawls' particular version of neutrality is a 'bogus neutrality' since it has the non-neutral effect of 'discounting the claims of those conceptions of the good that depend heavily on the relation between one's own position and that of others'9 Vdldron believes that this criticism is unjustified since 'the liberal has not arbitrarily plucked his account of what it is to have a conception of the good out of the air' Ratheq'he has settled on that view of the subject matter for his concern because of the hindamental principles and values that underlie his position"0 Waldson also believes that communitarian conceptions of the good involvean'urge by people to implicatethemselvesin the moral governance of others' and as such, communitarian conceptions are not in a class of views among which the liberal thinks there is good teason

to be neutral 11

However the problemWaldron and other protagonists of some form of the doctrine of neuuality have is the difficulty of escaping from the

' Rowland I A & S A Ihe Politicalvalues of the Public Conception in thc work of JohnRawls'(1995) 18(3) University of Qzemsland LawJournal

Callun, E Politics 22 Political Iiberalism and Political Education (1996) Winter, Review of

Callan uses the term ethical liberalism rather than Rawls comprehensivr libtrzlism since he argues that the term comprehensive applies to liberalisms whose constitutive ethical doctrine is only partially comprchensive and it is doubtful whether any truly liberal ethical doctrine could be hay comprehensive since its distinctive emphasis on freedom, diversity and innowtion arc not obviously consistent with the idea of a qstematic ordering of all relevant values which a fully comprehensive ideal entails For a philosophical defence of the principle that no conception of rationality is value-ne~rtralsee: Putnam H Reason, Truth und History London: Cambridge University Press, 1981;MacIntyre A Whose Justice?Which Rationality? Inndon: DuckworthPress 1988 Callan, E Political Iiberalism and Political Education (1996) Winter, Revieto of

politic^ 22,165 FOI the qtlotation from Nagel see Daniels N (ed) Reading Rozo2r

Critical Studies ofA Theory ofJurtice Iondon:Basic Books 1975 9-10 Waldron J Iiberal Rights Collected Papers (1981-1991) London: Cambridge University Press 1993,166 Waldron, J Liberal Right? Collected Pupmr (1981-1991) London: Cambridge University Press,1991 166


criticism that precisely because'the liberal has not arbitrarilyplucked his account of what it is to have a conception of the good out of the air'and because he has, 'settled on that view of the subject matter for his concern because of the fundamentalprinciples and values that underfie his position' that the term bogus'is applied to the neutrality doctrine l 3 Further,Waldron's belief that communitarian conceptions of the good involvean'urge by people to implicatethemselves in the moral guidance of others' raises the question of whether this is not also true of liberal conceptions? Waldran himself makes reference to the need to examine more thoroughlythe whole notion of a'conception of the good' It may be that such an examinationwould reveal that conceptions of the good are composed of both:(1) a list of values or goods ot human flourishing, and (2) some kind of theoretical framework for rank ordering those values in situationsof competition It may also be the case that a major difference between liberals and non-liberals is not the fact that nonliberals wish to implicate themselves in the moral guidance of others, and that liberals wish to leave individual citizens to their own devices; but rather that they both wish to implicate themselves in matters of moral guidance ofothers and that they simplydiffer both asto the values which make it onto their lists of goods,and also, as to the framework which is used to decide what to do when difficult ethical issues arise requiringarank orderingof the goods For example,if one considers the case of abortion, some non-liberalsmay take the view that the good of life as a value is not commensurable with other goods, that is, that it cannot be traded ~ Ifor

I the sake of any other good;whcreas most,if not

all,liberalswill take aposition contrary to this If both of these positions are classified as ethical,then the doctrine of neutrality is 'bogus' if it is invoked to defend the liberal-preferred pro-choice position In many cases where the issue is precisely what value to give the good of life or how to rank order this good in relation to other goods,the state will be placed in a zero-sumposition Any preference for a liberal position will have the effect of working directly against the competing non-liberal positions As Eric Mack observed: No appeal to state neutrality or to the beauty of tllc primtc/poblic modity distinction can settle this [abortion] dispute What matters is who is right about where the rightslie Perfectionist liberals, in contradistinction to the political liberals, acknowledge the close reliance of versions of pe~fectionistliberalism upon liberal philosophy in general,though they still seek to invoke the neutrdity doctrine in someform so as to ciscumscribethe powers of the

IZ '3

Calla", E Political Iibernlism and Political Education (19961 \Vintcr Reuzeco of Polztics 22 Mack E Liberalism, Neutmlism and Rights in ReIi~ion,iWorably nnd the lac4 Nornor X X X Cambridge:Marwrd llniversityPress 1988 47


state to take action in relation to the enforcement of particular nonliberal values Foremost among the perfectionist liberals is Joseph Raz who identifies three different interpretations of the neutrality doctrine: (i) neutrality as an 'anti-perfectionist stance', (ii) narrow political neutrality,and (iii) comprehensive political neutrality

Raz associates the notion of neutrality as an'anti-perfectioniststance' with the work of Robert Nozick Its principal characteristic is the idea that: No political action may be undertaken or justifitd on the ground that it individuals to pursue an ideal of the good l4 This position is in substance identical with that of Ronald Dworkin according to whom legislators and other state officials: must be neutral on what might be called thc question of the good Me 01 of what gives value to life Since the citizens of a society differ in their conceptions [of what makes life worth living1 the gowrnmcnt does not treat them is equals Iit prefersone conception to mother,either because the officials believe that one is intrinsically superior ur because one is held by the more numerous or powerful group l5 This definition docs not however tell us prcisely what Dworkin understands to be the essence of the proper.ty of neutrality In other words,it does not tell us what, in practice,it means for legislation to be neutrzl about conceptions of the good,and what it means for judges and public servants to be neutrd Moreover Dwotkin does not provide an asgument against the proposition that while there are a pluality of conceptions of the good, the sole of elections is to give citizens an oppoitunity to vote for representatives who act as advocates and eventuallylegislatorsfor their particular conceptual preferences In short, be doesnot provide an argument against the notion that parliament is an acceptablearenafor the competitionamong different conceptions of the good Implied in his failure to entertain this theory is the idea that measures need to be taken to defme the ambit of 'clectotal jurisdiction' In other words, just as judges and legislators and government administratorshave constitutionallydefinedjurisdictional boundaries,the neuttality doctrine is offered as an extraconstitutional brake on the possibility that the majority might vote for policies which have a

promotes ;m idtal of the good nor on the ground that it cnablrs

l4

Raz J Tihe iMO+talztyof Iieedom Oxford:Ciarendon Press, 1986 114 I Nozick K Aria?.@, State and Utopia Blackwell,1984 Dworkin,R A iMatttr of Principle Cambridgt:Harvard University Press 1985 144


decidedly non-liberal character Tb successfully achieve its aims

Dworh's def~tionneeds to be developed to distinguish between conceptions of the good where there is a free for all competition,where amajorityof votesin alegislatureis sufficientto jusufy apolicypreferring one conception to anothet; and conceptions about issues which are deemed to be beyond the jutisdiction of the electorate and subsequently the legislahue It is perhaps because of the underdevelopednature of the concept as defied by Nozick and Dworkin that Raz identifies this fist type of neutrality asamere'anti-perfectioniststance',tather than as afully developed docuine of neutrality

The second type of interpretation identified by Raz is what he terms, 'narrow political neutrality' This is the principle that:

No political action may be undertaken if it makes a difference to the likelihood that a person will endorse one conception of the good or another;or to his chances of realizing his conception of the good unless other actionsart undertaken which cancel out such effects l6

The difficulty with this conception is that it makes no provision for the fact that some conceptions of the good may be more socially worthwhile than others For example,different conceptions of the good give greater and lesser value to the defence of particular social institutions Policies which seek to be neutral regarding such conceptions end up having an impact upon both social and political culture For example, a policy which sought to enforce child maintenance payments through the taxation system by placing levies on absconding parents would seriously disadvantage those whose conceptions of the good included not accepting responsibility for the fmancial support of one's childsen Conversely,however,a government policy which taxes the community as a whole to support stzdte welfare payments to abandoned children disadvantages those pasents who do support their own children since they have to contribute morr money in taxes to provide support for the dependents of other less responsible people The attempt to formulatea calculus whereby government policy in matters relating to the function of social institutions will neithet advantagenor disadvantagethe proponents of any particular conception of the good is arguably a theoretical impossibility since even government inaction in cettain areas will itself have an effect on the fortunes of different conceptions of the good, and on the fortunes of diffesent social institutions such as the family

l6 Raz J B e iMo,falrty ujfieeclom Oxford Clarendon Prcss,1986 115

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IHE LlBEPvll DOCIIUNE OF STAIE N E U I ' M l I Y AIXXONO&IY

Ihe third interpretation which Raz describes as '~omprehensive (political) neutrality'is the principle that: One of the main goals of government authority,which is lexically prior to any othcr is to ensure for all persons an equal abiiity to pursue in thcir lives and promote in thcir societies any ideal of the good of their cl,oosing 17 The difference between comprehensiveand narrow neutrdity is that the first consists in 'helping or hindering the parties in equal degree in all matters rrlevant to the conflict between them'; whereas the latter consists in 'helping or hindering them to an equal degsee in those activities and regarding those resources that they would wish neither to engage in nor to acquire but for the ~onflict"~ In either event the same problems would arise in the formulationof government policy guidelines If neutrality were to be promoted as a basic principle of good government, no government decision would ever be safe from challengeon this ground,as it is impossibleto predict all the social and economic consequences of a policy Policies would he rendered vulnerable to attack Born the smallest of interest gsoups on grounds of their likely non-neutral effect This would give rise to a political pmblem ofjust how many members of a state would have to be disaffected before a court would strike out legislation on the grounds that it fails to pass the neutrality test liberal political philosophy would thereby find itself in the ironic position of having begun its intellectual life with a utilitarian 'gseatest good for the greatest number' principle, only to arrive at the inverse position of 'the greatest good is that which does not displease the smallestnumber'

A fourth interpretation identified by Eric Mack in his essay Liberulzsm, ~Veuhalismand Rzgbts is that which he describes as 'Benthamite neutrality' According to this interpretation any promotion or thwarting of specific life plans or conceptions of the good would he entirely incidental to the social maximisation of whatever forms of satisfaction are taken to have intrinsic value '9 This type of ueuuality relates to one

l7 l8 '9 Rrz, J The Mortahiy of Freedom Oxford:Clarindon Press 1986,115 Kaz,J The Mo?taltiy of heedom Oxford:Clarendon Press, 1986,122 Mack E Liberalism, iVeutralism and Ri~htsin Religion, ~Moralifyand the Larv

Nornos, .XYXCambridge:Harmrd University Press 1988,47


aspect of JeremyWaldson's position according to which if there may be certain goods which can reliably be said to be regarded as values by everyone, no matter what their conception of the good life, and assuming that such a class of goods can be specified, any attempt to provide the principles for their distribution will not in itsell be a violation of the doctrine of neutrality In this later category Waldron places what Rawls describes as 'primary goods' These include health, bodily integtity, (of those outside the womb), wealth, self-respect, negative liberty, and some degree of education Concretely,Waldson argues that if a class of goods can be specified, for example, the list offered by Rawls,then the doctrine of neutrality will not be violated if a legislator formulates principles for the distribution of these goodswhich have the effect of favouringparticular social groups For example,if one of the goods is the provision of a national educational system, the doctrine of neutrality will not be violated by the fact that citizenswhose conceptions of the good includeshaving a private education will be less advantaged by a national education policy than those who desire to make use of state funded educational institutions In this treatment of the issue of primary goods,Waldrwn,however, begs a number of questions Having stated that some subjects ase the law's business and others not, though not defining what they are, Waldron assertsthat it is possible to formulatea framework of principles and institutions to govern the supply and distribution of goods which will not 'wrongly discriminate between the adherents of various conceptions of the good life' He tails to explain however how this is either theoretically or practically possible He acknowledges that the principles being promoted may fall into a general category of morality, but claims that this does not violate the neutrality principle if a class of primary goods can be specified He believes that the Rawlsian list of primary goods are values accepted by everyone, but this is merely an unsubstantiated presumption upon which the rrst of his account of the neutrdity of legislative effect stands or falls While Rawls'list of primary goods may 'reliably be said to be regarded as values by everyone' in the sense that most persons wish to be healthy not sick,financiallysecure, not destitute, educated not ignorant and self-rrspecth~lrather than selfloathing,it is far from agreed that:(1) this list is exha~stive;~0 (2) that it is the duty of the state to provide for any such goods;2' (3) whether the

21

JohnFinnis,for example,has described this list as a ndical emaciation of human good for which no satisfactory reason is available Finnis J NuPuval Irnzv and ~VatrrrulRight\ Oxforcl:ClarendonPress, 1980 106 Sometheorists includingthose who are regardedas liberal theorists challenge the idea chat the state is the best provider of social welfare and seek to demonstmte that the institutions which art best placed to pnwlde social welfare are those mediating Institutions such as private schools. university colleges, and private hospitals which st.and In a position mid-waybetween tht stlte and the individual


IHE IIUEM DOCIRlNE OF SLALC NEIJI~IIIY:AIIO(ONOI\N

state is as a matter of empirical fact,the best provider of these goods; and (4) there is the problem that in some circumstances legislators will be in a zero-sum position whereby simple inactivity or abstention ftam involvement in a particular issue will have the effect of favouring one goup in the conflict In the context of problems (2) and (3) not only are there divisions between liberals and non-liberals, but within the liberal tradition itself there is a wide variety of opinion about exactly what goods the state is obliged to provide and what goods the state is competent to provide rhere is,moreover,the further problem that the fairness of the pracess whereby values are classified as either acceptable or unacceptable is begged Why for example,must the ambit of the 'law's business'be defined by reference to liberal values?

The main theoretical problem as Raz sees it is to 'fmd any reason for supportingpolitically some elements of a conception of the good and not othersthat areadmittedto be valid andvaluable'22 Abasic premise in Raz's searchfor such a reason is that'perfectionism'[presumablyhere defmed as the idea that some conceptions of the good are more worthwhile than others] is compatible with moral pluralism,which 'allows that there are many morally valuable forms of life which are incompatible with one another'A second premise is that 'a~pportingvaluiable forms of Life is a social rather than an individual matter' ,and accordingly certain valuable formsoflife,for example,monogamy,'rcquireaculturewhich recognises it, and which supports it thsough the public's attitude and through its formal instiNti0ns~~3 believes thdt 'perfectionist ideals rrquise public action Raz for theis viability' and that 'anti-perfectionism in ptactice would lead not merely to a political stand-off from supportforvaluable conceptionsofthe good',but it would 'underminethe chances of survival of many cherished aspectsof our culture'24 Implicit in these prcmises is Raz's rejection of what he terms the 'moral individualism' of rights-based theories of morality Raz argues against the presumption that the ptatection of liberty rests primarily on respect for individual rights and argues that the liberal uadition is not unequivocally individualistic,and thdt some of the typically liberal rights depend for theisvalue on the existenceof a certain public culture,which their pratection servcs to defend and promote Raz also argues that the justification for providing entrenched constitutionalprotection for typical

22 23 24 Raz J The ~llortalttyof Peerlorn Oxford:Cla:endon Press, 1986 140 Raz J The Mortality of Pree'lolom Oxford:Claendon Press 1986 162 Raz J The Mo?tnlity u f F ~ c e d o vOxfor& ClarendonPress 1986 162 ~

61


(2000) 2 UIVDALR

liberal rights is not that they articulate fundamental moral or political principles, nor that they provide for the protection of individualistic personal interests of absolute weight,hut rather that they 'maintain and protect the fundamental moral and political cultuse of a community thtaugh specificinstihltional arrangements or political conventions'25 Unforhmately Raz does not defme what he regards to be the constitutive elements of a political culture He does however acknowledge that there are socially worthwhile and socially unworthwhile conceptions ofthe good and that these may he fosteredor hindered in their flourishing by the background political culture In this sense Raz is in agtrement with the Atistotelian position according to which a citizen's social environment is deemed to influence his or her ability to flourish Where Raz parts company with the Aristotelians is in his principle that the end of society is the fostering of individual autonomy rather than the fostering of individual virtne; and it is this principle which turns his philosophy full-circle back to the problem of neutrality Ihe difficulty once again becomes that of the unsesolvable conflict between a principle of autonomy which makes the individual 'self'the arbiter of what is good or worthwhile, against a principle that some conceptions of individual autonomy are really not 'morally' or 'socially'val~~ahleIn the latter case Raz does not provide any criteriafor distinguishing the worthwhile ftam the unworthwhile social goods and appears to hold that such judgments are a matter of common-sense observation or intuition Raz's position is caught mid-way between Atistotle and Finnis,on the one side,andRawls andDworkin on the other

While other liberals do not share Raz's Atistotelian focus on the importance of the nature of political culture, they do however come close to the issue by positing yet another notion of neutrality,this time not as a docuine or an anti-perfectioniststance,hut as a political vittue In the context of the practicality of the application of the neutrality of legislative intention doctrine,Waldronsuggeststhat while it is difficnltto determine what the reasons behind a particular piece of legislation were,the doctrine could be understood primarily as a basis for political morality in a namw sense - that is, as a basis for each lawmaker to evaluate his own intentions - rather than as a doctrine for evaluating legislationas such Waldran assertsthat 'perhaps we should not think of political morality simplyas a set of principles for judging outcomes' hut rather 'its primary function is to guide action and to consu.din political

25 Kaz,J Theiwortctliy of Freerlom Oxford:Clarendon Press,1986, 245

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IHE IIBEM OOCIRlNE Ot SlAIE NEUIFvVlIYAI&XONOIMI

thoughtzz6If this interpretation of the neutrality of legislative intent is accepted then it is not so much a property of a particular piece of legislation, but some species of virtue Indeed Waldron describes neutrality as a 'specifically political virtue' and states that the sequirrment of neutrality is generally taken to be specific to polztzcal moralityz7Herr he is in accord with BruceAckerman who has argued that rather than linking liberalism to ideas of natural right or imaginary contract,we must learn to think of liberalism as a way of talking about power, a form of political cultuse 28 According toAckerman,'the notion of constr.ainedconversation should serve as the organising principle of liberal tho~ght'~9Presumably what must be 'restrained' are certain perfectionist ideas It is precisely this interpretation of the neutrality doctrine which has been the subject of criticism from scholarsclassified as communitarians,principally CharlesTaylor andAlasdait MacIntyre 3O MacIntyre interprets the concepts of neutrality and'public reason'or 'public discourse' as a means of achieving a proscription of appeals to first principles in public debate Thus he states: Conventional politics sea limits to practical possibility h i t s that ate characteristicauy presupposed by its modes of discourse rather than explicitly articulated It is therefore important in ;ind to the political sphere that there should not occur extended argumentative debate of a kind that would make issues about these limits cxplicit md therefox matter fm further debate And one means of achievingthis is to proscribe appeals to first principles 3 l MacIntyre treats suchproscriptions as the jurisprudential adoption of an emotivist moral philosophy and as such he is opposed to it However MacIntyre's own work on the selationship between virtue and political cultnce lends stsength to the interpretation that neutrality is in fact a particular type of political virtue associated with the promotion and defence of a liberal political order Moreover, like all virtues, the neutrality concept is embedded within a particular metaphysical framework i'he metaphysical framework underpinning the concept involves a reconstruction of the pre-liberal understanding of the relationship between the domains of the ethical and the political

z6 27

z9 3O

31

Waldron, J Liberal Right\ Collected Papers (1981-1991) London: Cambridge University Press, 1993,151 Waldron J Iiberal Rights Collected Papas (1981-1991) Inndon: Cambridge University Prrss 1993,155 Acketman, B Social Justice and the liberal Sfate New Haven:Yalt University Press,1980,6 Ackerman, B Social Justice and the Iiberal Stare New Haven:Yale University Press 1980 10 T h i s categorisarionis commonlyused notwithstanding MacIntyrr s eschtwal of the label b1adntyre.A The Spectre of Communirarianism'(1995)MarchIAprilRadical Philosophy, 35-35 MacIntyre,A Politics,Philosophy and the Common Good (1997) Studz Perugini


(2000) 2 UIVDAIR

OF THE OF THE ETHICAI&VD POLIIICAI Implicit in Waldtwn's use of the notions of a 'political virtue' and a 'political morality'is the principle that the realm of politics has its own particular moral values and virtues 32 Instead of the raison d'etre of politics being the formulation of social policies to realise some list of goods of human flourishing,politics is treated as conceptually prior to ethics, and an ethical system is formulated with reference to a set of sociological factors (such as the existence of different conceptions of the good life among citizens) which characterise the liberal conccption of the 'domain of the political' This turns on its head the rhomistic conccption of politics as a sub-branch of ethics,and returns to the classical Greek idea that political science is the 'most truly architectonic science' 33 In effect it makes politics the 'queen of the sciences' In this se-construction of the domains of the ethical and political what are popularly regarded as 'moral issues' are transmuted into 'political issues' Rawls, for example, charactcrises the abortion issue as apolitical issue involving'three importantpolitical values':(1) 'the due respect for human life', (2) 'the ordered reproduction of political society over time, including the family in some form', and (3) 'theequality of women as equal citiz~ns'3~Precisely what he means by the last two of these 'political' principles is not clear For example,it is not clear what Rawls means by 'ordered reproduction', nor is it clear how the equality of women (presumably qua men) has anything to do with abortion However; notwithstanding these ambiguities, the fact remains that he has charactefised the issue as one involving three 'political' values rather than as three 'ethical principles' By characterising the issue in this way, that is, as 'political' rather than as 'ethical', Rawls is able to justify a laz'ssez-fnireabortion policy on the part of the state

VIII THELIBERAIh-CONSTRUCTION DOMAINS

32

33

34

Ihe project for the development ot a set of virtues based on liberal theory is well advanced in the work ofWilliam A CeIston G.alston WA IibemlPurposes Goods, Vilt~esand Diverrzty in the Iibernl State London: Cambridge University Press, 1991;and Macrdo, S Charting IiberalVlrtues Nomos,XYXN NewYork: NtwYurk IJniversityPrrss 1992 Although St Ihomas Aquinas took over much ot the Aristotelian framework. one major difference between St Thomas and kistotle is that St lhomas had the advantage of Christian Revelation and therefore argued that the ultimate end ot the whole universe is considered in theology rather than raking over thc Aristotcli.an idea that it belongs to political science to treat the ultimate end of human life St 'ThomasAquinas,Commentmy on A~irtotlek Nicomo~heanEthics, Urns C I Litzingel 0 P Dumb Ox Press 1993 Iscnlrr U: I h i Suptrme End of HumanAffairs,7-11 Rawls,J Political Iiberalism NewYork:Columbia University Press 1993 243 fn32


While the nature of politics is not directly addressed by the neutrality theorists, implicit in their theories is a notion of democracy and representative government whereby legislators are not simply the representatives of a particular social goup elected to advance the interests of that gsoup in the formulationof government policy Rather, the doctrine of neutrality operates so as to fetter legislative fseedom and to divide moral values into categories of'acceptable' and 'unacceptable' for the domain of the political In other words the purpose of the doctrine is to proscribe certain values from receiving legislative endorsement In this context the neutrality of the legislator takes the form of an abstention from any behaviour which might help or hinder the promotion of the unacceptable value

There are at least four interpretations of the doctrine: (1) a doctrine regarding the kinds of issueswhich might be subject to legislation;(2) a doctrine about the kinds of justifications or reasons legislators may promote to defend or oppose particular measures;(3) a special kind of 'doctrine of double effect' or 'Benthamite neutrality' whereby it is acceptable to pass legislation which will have an indirect effect of advantagingsome socialgraup, but which was not formulatedwith that non-neutral effect in mind as the primary objective;and (4) the theory pertaining to the exerrise of a particular kind of liberal political virtue The historical transition has therefore been from a notion of the State's tolerance of competing theological propositions to a conception of neutrality which links the idea of tolerance to the idea of equality The notion of equalitywhich was originally confinedto the legal rrlationship between the citizen and the state is in the process of being transposed to the realms of ethics and culture Such an analysis confirms the assessment of John Gray that: What the neutrality of radical equality mandates is nothhg less than the legal rlisestablirhment of rnomliy As a result, mor:ility bccomes in theory a private habit of behaviou~rather than a common way of Me Ihe practical legal m d political result of these ncwer liberal ideas is found in policics of reverse discrimination or positive discrimination md in the creation of group or collective tights 3i It may be argued that the neutrality doctrine occupies the position in contemporary liberal theory which the concept of fraternity occupied in earlier liberal theory Equality remains as one of the thee 'theological

35 36

Gray, J Iblcrztion and the Currently Offensive Implication of Judgement in

Anderson,D (ed) The Loss of Vivtue National Review Pnhlications,1992 The three theological virtues are faith,hope and love Withln the liberal tradition they are replaced by the political virtuts of liberty equality and fraernity


virtues' of liberal theory with liberty represented by the concept of individual aut0nom~3~In the absence of genuine social solidarity the relationship between citizen and citizen is purrly legal Genuine solidarity of the kind which fosters fraternity is found only in some fnnctional families and in some institutions of civil society whese membership is voluntary and members arc bound together by a mutual acceptance of particular values In the absence of fraternity or social solidarity the doctrine of neutrality servesto define the chasacterof the relationshipbetween citizen and citizen,and,between citizen and state, in such a manner that politics is no longer 'the location of the moral virtues in sofar as these vittues touch others'but rather the 'pmsuit of civilwar by other means'37Theliberal list of goods of human flourishing includes equality (underpinned by a belief in moral and cultural relativism),autonomy (underpinned by a belief that the individualwill to power or self-assertionis the highest expression of individualfreedom) and membership of a political culture designed to frustrate policies which will have the effectof promoting values other than equality and autonomy Once autonomyand equalityare enshrined as absolutegoods there is no longer room for a conception of politics as the pursuit of the common good since any conception of a common good requires the application of value judgements which always ipso facto support or oppose some particular conception of the good Ihis is unless the common good is defmed as the pramotion of autonomyand equality In this case there is a convergence and alliance of the liberal and socialist traditions However the alliance is not stable Once the good of 'autonomy'begins to be frustrated by the good of 'equality'new political and jurisprudential conflicts will emerge The critique of liberal jurisprudence from the perspective of the Critical Legal theorists and fsom the praponents of a post-modern jurisprudence may be construed as a sign of tension within the alliance In such circumstanceswherein legal philosophy is called upon to adjudicate between the competing claims of the goods of autonomyand equality,the neutralitydoctrine will be completelyineffective It is by its own terms powerless to interfere in such a conflict Its ideological power is therefore limited to a period in social history where these is still a socially significant opposition to a political culture which treats autonomy and equality as the basic goods ofhuman flourishingIn this period it operates asafoilagainstthe claims of the nahual law tradition of jurisprudence, according to which a knowledge of the goods of human flourishing is the fruit of rational, objective discernment,rather than a rational,subjectivepreference

3'

Ihe description of liberal politics as civil war by other means has btin pupularisedbyAlasdaif MacInrjre


The 1930's Kisch High Court cases' examined the arbitrary nature of the Australian Immigration Policy of the time Ihe Immigration Policy was made manifest in the Immigration Restriction Act 1901,whichwas introduced by Prime Minister Edmund Barton IheAct arose in response to a concern that 'non-whiteswould lower the civilizationand standard of living of the B~itish people in A~stralia'~Ihe lmmigration Restriction Act required Immigrants to pass a written test in any European language Government officials were vested with considerable discretion under the Act as to which European language the test would be conducted in for each applicant Egon Kisch, a multi-lingual Czech peace activist attempted to enter Australia for the purpose of speaking at political rallies Government officialstried twice to stop him and twice he appcaled to the High Court ofAustralia Kisch was successh~lin his first appea1,whichwas against the Governments decision to exclude him on the basis that he was a "prohibited immigrant"pursuant to theAct Justice Evdtt determined that the requirements of the Act had not been complied with Kisch was also successfnl in his second appeal, which was in response to the Governments demand that he take a dictation test in Scottish Gaelic Kisch was successful in arguing that "ScottishGadic"was not a "European language' within the meaning of the Immigration RestrictionAct 1901 Justice Hasluck takes the story of the plight of Egon Kisch and pardels it to the legendaty Kafka in his novel,Our Man K 3 The followingis an article based on the recently published work

REINVENTINGTHE KISCH CASE

Nicholas Hasluck*

I have always been intrigued by the first line of Kafka's tale f i e Trial4,a sentence suggesting that the law is a labyrinth, a shadowy rralm where half-shut doors occasionally afford a glimpse of justice, but more by chance,it seems, than by design Someone must have been telling lies

*

Ihe Hon Justice Nicholas Hasluck Supreme Court of WtstrrnAustralia The King u Wkon and Anotha, Ex pcr?te Kisch [I914152 CIR 214; The King v Ca?rer,DpmteKisch [I934152CIR221:lheKingvDunbabin,Exparrr Kisch [I9151 53 CIR 434;TheKing v Eetchw nndAnothn,Expnrte Kisch I19351 52 CIR 248. Krrche~BAn 7JnrulyChild A History of Law inArrstlulia Sydney:Buttrrwurths 1995 149 Hasluck.N Olrl Man K Ringwood,Victoria:Penguin 1999 Kanta, E. The iTLial klammondmorth,Middlesex:Penguin,1953