Political philosophy- State neutrality readings

• The author wants to explore the relations between these familiar liberal themes, in particular the prospects for grounding the latter (neutrality) in the former (the danger of oppression)

  
• The author argues that the argument that we should adopt the neutrality principle precisely in order to constrain the state's oppressive power does not succeed

  
• Oppression


  The state can use its vast power in less salutary ways, such as suppressing dissent, consolidating and maintaining a ruler's personal power, and creating and sustaining unjust patterns of advantage and privilege
• The need to protect citizens from their government is patent
• Benjamin Constant: 'When you establish that the sovereignty of the people is unlimited, you create and toss at random into human society a degree of power which is too large in itself, and which is bound to constitute an evil, in whatever hands it is placed. Entrust it to one man, to several, to all, you will still find that it is equally an evil . . . it is in fact the degree of force, not its holders, which must be denounced.'
• Judith Shklar: 'Justice itself is only the web of legal arrangements required to keep cruelty in check, especially by those who have most of the instruments of intimidation closely at hand. That is why the liberalism of fear concentrates so single-mindedly on limited and predictable government. The prevention of physical excess and arbitrariness is to be achieved by a series of legal and institutional measures designed to supply the restraints that neither reason nor tradition can be expected to provide.'

  
• Neutrality thesis


  Political decisions must be, so far as possible, independent of any particular conception of the good life, or of what gives value to life

  
• Conception of the good


  Claims that particular (types of) activities, traits, or relationships are intrinsically or inherently valuable or disvaluable
• Justificatory neutrality


  The state must refrain from adopting any law or policy because it will have effects that conform to any conception of the good

  
• The danger of oppression may be among the justifications for a neutral state, as constraining the state's activities by the neutrality principle may eliminate one historically important occasion for abuse

  
• Until recently, few liberals have spoken of neutrality, as their preferred solutions have involved the separation of government powers, the independence of the judiciary, and the legal codification of rights to guarantee each person a protected sphere of security and liberty

  
• Given a suitably potent array of legal rights, no further protection is necessary, as legal rights already block the most dangerous abuses of power

  
• By guaranteeing its citizens a suitable complement of rights, a state can non-oppressively pursue its efforts to promote the good
• Whether or not they can, rights clearly cannot protect anyone from oppression unless they are backed by the force of law
• How the protection afforded by rights affects the prospects for grafting a defense of neutralism onto the earlier "liberalism of fear"


  Given a suitably potent array of legal rights, no further protection is necessary as legal rights already block the most dangerous abuses of power, so there is no urgent need for whatever additional security a neutral state might provide

  
• Jeremy Waldron quotes T.S. Eliot as opposing "the ideal of a neutral society" in a book that Eliot published just before the Second World War, but Waldron adds that he has managed to find no evidence that any liberal view that Eliot was opposing was ever actually formulated in these terms
• Rights and neutrality are not rival protective strategies
• Dworkin's view on the role of legal rights

  They are necessary ways of implementing neutrality by ruling out in advance the sorts of laws and policies whose justifications are most apt to be non-neutral

  
• Substantive civil rights and procedural civil rights serve to secure the neutrality that is the core, or "nerve", of liberalism

  
• Despite the protections afforded by the Bill of Rights and the judiciary in the contemporary United States, there remain many laws whose justifications seem largely perfectionist
• Examples of laws with a clear perfectionist rationale


  • National Endowment for the Arts subsidizing artistic projects
  • Environmental Protection Agency preserving wilderness and protecting endangered species
  • Laws prohibiting the use of obscene language on television and radio, public nudity, public sexual activity, and public defecation
  • Laws against "victimless crimes" like prostitution, pornography, sodomy, bestiality

  
• Dworkin cites the common liberal claim that the protection of the individual in certain important areas, including sexual publication and practice, are much too weak

  
• Laws against pornography, homosexuality, and prostitution have not been administered especially cruelly or arbitrarily, do not swell the wealth, influence, or power of those who currently hold office, and do not institute or perpetuate any unjust patterns of privilege

  
• If oppression is understood as compelling citizens to conform to conceptions of the good which they do not share, then any non-neutral law is by definition oppressive, so it will beg the question to argue that we need a neutral state in order to protect us from oppression
• The problem with our present rights is not just that they fail to block laws that are themselves oppressive, but also that by allowing any deviations from neutrality, we set a damaging precedent that could lead to an officious, omnipresent Big Brother

  
• Despite two centuries of non-neutral laws and policies, the long slide into authoritarianism has not occurred, and the long-range tendency seems to be in the direction of expanded civil rights
• To rule out all government efforts to promote the good, a scheme of rights would have to be so extensive as to prevent the state from functioning at all

  
• Neutrality


  A property of the justifications of political arrangements rather than of those arrangements themselves

  
• Legal rights


  They standardly rule out certain ways in which governments or individuals might treat (other) people

  
• Neutralism prohibits only acts performed for reasons while legal rights prohibit certain acts themselves, so the notions are logically at cross-purposes

  
• Any law or policy could conceivably be adopted because the activities it requires are considered intrinsically valuable
• Even if no one regards an activity as intrinsically valuable or disvaluable, the neutrality of a law that requires or forbids it is not yet settled

  
• No scheme of rights can block all non-neutral state actions, but some specific rights may indeed exist to block, and largely succeed in blocking, some specific kinds of non-neutral state actions

  
• The neutralist strain of liberalism is problematic and may have less staying power than the crude but durable liberalism of fear