Normative Legal Positivism, Neutrality, and the Rule of Law

Abstract

Usually, in jurisprudential debates what is discussed under the rubric of ‘neutrality’ is the claim that jurisprudence is (or at least can, and should be) a conceptual, or descriptive - thus, non-normative, or morally neutral - inquiry. I discuss neutrality in an altogether different sense, namely, neutrality as an ethico-political ideal the law should meet.

My starting point is normative legal positivism, or the claim that it is a good and desirable thing that the laws have easily identifiable, readily accessible, as far as possible non-controversial social sources. What justifies normative legal positivism, I claim, is the value - or the ideal - of neutrality, suitably understood. I.e., what is desirable about laws being such as normative legal positivism claims they ought to be is, in a sense to be specified, their neutrality.

What, then, is the relevant concept of neutrality? And why is neutrality, so understood, a value? Answers to these questions, I argue, can be found when we consider the idea of the Rule of Law.

Normative legal positivism envisages neutrality through the Rule of Law. There are two connections. The first is through stability of mutual expectations. The second stems from what I call the ‘inherent neutrality’ of prescriptions. Under both respects, it turns out, in J. Raz’s words, “observance of the rule of law is necessary if the law is to respect human dignity”.

Keywords: Normative legal positivism, Rule of Law, neutrality, prescriptions, certainty