Neutrality Isn't Neutral: On the Value-Neutrality of the Rule of Law

Washington University Jurisprudence Review, Vol. 4, No. 1, p. 49, 2011

47 Pages Posted: 26 Mar 2012

See all articles by Tara A. Smith

Tara A. Smith

University of Texas at Austin

Date Written: 2011

Abstract

The Rule of Law is widely regarded a vital ideal for legitimate government, yet the exact value provided by this ideal is contested and often murky. Some maintain that the Rule of Law is morally neutral and, indeed, that this neutrality is the very feature that renders the ideal universally commendable, a proper desideratum for nations devoted to starkly divergent ideologies. Against that view, this paper argues that the Rule of Law is a valid ideal only because it is a moral good that serves a morally worthy purpose.

The first part of the argument presents five distinct rationales in support of the value-neutral position, and offers a critique of each. The second part lays out the positive case for the moral fiber of the Rule of Law, contending that both the purpose of law and the means by which law is enforced implicate the ideal’s moral character. The analysis in both parts turns heavily on the nature of objectivity and the principle that form follows function. Along the way, it exposes ambiguities in the ways that the Rule of Law’s value, neutrality, and “idealness” are commonly treated. It also reveals that neutrality cannot be neutral, in practice, and that any attempt to exclude the influence of all moral values from the formal conditions that constitute the Rule of Law inescapably incorporates some such values, whether deliberately or not.

At stake is our ability to enjoy the benefits that the Rule of Law can and should provide. For without a clear understanding of the value of this ideal, we cannot accurately identify its necessary conditions or have a sound basis for judging whether a given government or government action is or is not upholding it. Correspondingly, we risk unwittingly surrendering ourselves to the Rule of Men.

Suggested Citation

Smith, Tara A., Neutrality Isn't Neutral: On the Value-Neutrality of the Rule of Law (2011). Washington University Jurisprudence Review, Vol. 4, No. 1, p. 49, 2011. Available at SSRN: https://ssrn.com/abstract=2027656

Tara A. Smith (Contact Author)

University of Texas at Austin ( email )

2317 Speedway
Austin, TX 78712
United States

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