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46 J. Leg. Phil. 1 (2021)

handle is hein.journals/ajlph46 and id is 1 raw text is: Journal of Legal Philosophy, Vol. 46, No. 1, 2021, pp. 1-28 Rethinking neutrality: a conceptual analysis Matt Watson Lecturer, TC Beirne School of Law, University of Queensland This article attempts to determine whether there exists a coherent, plausible, and ultim- ately compelling explication of what it is to act neutrally. I argue that there is - an account I label neutrality of volition, and according to which an actor acts non-neutrally where she either acts for the purpose of differentially helping or hindering a particular party in a given contest, or acts or in the belief that there is a substantial likelihood that her action will have this effect. Along the way, I suggest that political philosophers concerned with whether justice requires that the state's laws and policies be publicly justifiable, as well as legal commentators who note that oftentimes laws of general application have disparate impacts, would do well to cease framing their arguments in the language of neutrality. I conclude by arguing that debate over the proper interpretation of neutrality is not merely a matter of semantics. Having identified an account of neutrality that aligns with our ordinary understanding of the concept, and which is also internally consistent, we have access to a conceptual tool that we can use to make better sense of a wide array of actions in the political sphere and beyond, while also avoiding an unhelpful conflation of neutrality with distinct concepts such as fairness, public justifiability, anti-perfectionism, equal impact, and non-discrimination. Keywords: neutrality, conceptual analysis, political philosophy, legal philosophy 1 INTRODUCTION What does it mean to act neutrally? We are familiar with canonical examples of neutrality such as that of Switzerland vis-a-vis foreign military conflicts. It is also common to hear natural persons described as neutral in respect of some contest going on around them. We might say, for instance, that a good judge must be neutral between the parties in the case before her. Or we might remark that a parent has remained neutral in a quarrel involving his two children. Legal and political philosophers, as part of the so-called 'neutrality versus perfectionism' debate, also argue for or against the idea that justice requires the state to be neutral between competing conceptions of the good life.1 In addition, legal theorists and political activists commonly insist that 1. Leading defences of liberal neutrality include Ronald Dworkin, 'Liberalism' in Stuart Hampshire (ed), Public and Private Morality (Cambridge University Press 1978); John Rawls, Political Liberalism: Expanded Edition (Columbia University Press 2005); Bruce Ackerman, Social Justice in the Liberal State (Yale University Press 1980); Charles Larmore, Patterns of Moral Complexity (Cambridge University Press 1987); and Thomas Nagel, Equality and Partiality (Oxford University Press 1991). Eminent critics of state neutrality and advocates of perfectionism include Joseph Raz, The Morality of Freedom (Clarendon 1986); Thomas Hurka, © 2021 The Author Journal compilation © 2021 Edward Elgar Publishing Ltd The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK and The William Pratt House, 9 Dewey Court, Northampton MA 01060-3815, USA

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