The political implications of state neutrality as a range concept

ABSTRACT

The idea that the state ought to be neutral towards different conceptions of the good life has been an influential principle in liberal theory since the 1970s. It has, however, been subject to criticism by communitarians, multiculturalists and liberal perfectionists. Recently, Peter Balint has attempted to defend state neutrality against its liberal critics as the adequate interpretation of the liberal project by redefining it as a range concept. By arguing that neutrality always occurs within a specific range of permissible conceptions of the good life, Balint provides a convincing rebuttal of neutrality’s critics. In this paper I argue that while neutrality as a range concept provides an adequate account of state neutrality, it also makes it vulnerable to a new line of critique. Since the range of neutrality cannot be deduced from the principle of neutrality itself, neutrality is subject to political developments beyond its own control. I will start by clarifying the notion of neutrality as a range concept. Secondly, I will demonstrate that Balint’s notion of the range concept finds ample support in the wider literature on neutrality. Thirdly, I will argue that, as a range concept, neutrality ultimately depends on politically constituted value judgments.

KEYWORDS:

• Neutrality
• liberalism
• range
• perfectionism
• multiculturalism

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Galston distinguishes between the notion of liberal autonomy that derives from Enlightenment ideals and that of liberal diversity, understood as religious toleration, that was part of the ‘post-Reformation project’ (Galston, 2002, p. 24). For the evolution of toleration to neutrality, see Balint (2017, pp. 13–15).

2. In Political Liberalism Rawls tackles the principle of neutrality more directly, while also stating that he considers the term ‘neutrality’ to be ‘unfortunate’. Rawls (1996, p. 191).

3. For a historical discussion of post-war theories of state neutrality, see Wall and Klosko (2003, pp. 2–6). For an historical overview of the debate between neutralist and perfectionist liberals, see Jennings (2009, pp. 5–15).

4. See discussion in note 8.

5. Larmore uses the term ‘expressivism’ for what I refer to as ‘perfectionism’ (Larmore, 1987, p. 91).

6. In this context it is significant that Steven Wall, as a perfectionist, also coined the term ‘restricted neutrality’ as a principle of neutrality that is compatible with perfectionism (Wall, 2010).

7. In addition to neutrality of consequences (which corresponds to neutrality of effect), neutrality of justification and neutrality of intention, Tahzib also distinguishes ‘neutrality as equality of opportunity’ as a fourth category under which Patten’s more recent ‘neutrality of treatment’ is grouped (p. 517).

8. Balint does, however, rule out any role for neutrality of effect/outcome (pp. 60–61). Along similar lines, Collis Tahzib has developed what he calls a pluralist account of liberal neutrality (Tahzib, 2018). This means that – given the disagreements that neutralists have on whether neutrality should be justificatory, intentional or consequential – neutrality is best understood as ‘a complex and multifaceted concept with consequential, justificatory, and intentional dimensions – a concept not amenable to a unidimensional analysis’ (p. 519). All the traditional understandings of neutrality are important perspectives on neutrality yet separately they are incapable of giving a complete account of neutrality. The different components of pluralist neutrality need to be balanced against one another. Tahzib understands his theory of neutrality as a ‘reconciliationist project’ (p. 524). Yet, in contrast to Balint, Tahzib does think that neutrality of effect provides us with a legitimate perspective on neutrality, and therefore includes the consequentialist dimension in his pluralist neutrality, whereas Balint does not. Tahzib’s article starts by stating that ‘somewhat surprisingly’ (p. 508) no one had advocated a pluralist account of neutrality. He might not have been aware of Balint’s argument. For another example of a neutralist theorist who argues that different conceptions of neutrality need not be mutually exclusive, see Gaus (2008), p. 88. In this paper I will focus on Balint’s theory, rather than Tahzib’s, since the range element is my main concern.

9. Even though Balint argues for a hands-off kind of neutral state, he concedes that a hands-on approach can still be in line with neutrality; he simply argues that it is less effective in accommodating difference. Pierik and Van der Burg (2014) also reject the idea that there’s a fundamental opposition between multiculturalism and neutrality and that only a hands-off neutral state would be compatible with neutrality. They argue that the exclusion of culture and religion from the public sphere is simply one interpretation of the principle of neutrality. They distinguish this ‘exclusive neutrality’ – of which both French Laïcité and US constitutional practice are examples (p. 499) – from ‘inclusive neutrality’ in which differences are recognized. This can manifest itself in proportional neutrality – i.e. ‘representation of minority groups or state support for their culture proportional to their size’ (p. 500) – or compensatory neutrality which refers to compensation by granting of special rights or entitlements to minorities, because of structural inequality or historical injustices (pp. 501–502).

10. Tahzib makes the observation that some multiculturalists are also neutralists (2018, p. 526).

11. I do not intend to claim that there is a genealogical relation between these authors and Balint. Part of the literature that will be referenced is more recent than Balint’s book. What matters, is that multiple scholars arrive at similar conclusions independently on the basis of their analyses of classical neutrality.

12. Laborde borrows the term ‘restricted neutrality’ from Wall who develops ‘a principle of state neutrality that is broadly compatible with a perfectionist approach to politics’ which is possible since ‘principles of state neutrality must specify a domain in which neutrality is to be sought’ (Wall, 2010, p. 233). Whereas most of the discussions in my paper point to attempts to incorporate perfectionist accounts of liberalism into the neutralist framework, Wall aimed to do something similar coming from a perfectionist perspective.

13. Laborde’s own liberal theory, consequently, defends a more substantive liberalism as well as a crucial role for democratic procedures (Laborde, 2017, p. 82).

14. Thomas Hurka, for example, uses Mill’s position to demonstrate that state neutrality is a new invention rather than part of traditional liberalism, since Mill supposedly rejected neutrality (Hurka, 2009, p. 36). Similarly, Arneson characterizes Mill’s utilitarianism as an example of ‘a nonneutral political morality’ (Arneson, 2003, p. 193). Rudisill on the other hand treats Mill as an exponent of neutrality (even preferable to Rawlsian neutrality). Instead of seeing neutrality as a new development, he rather sees in religious toleration ‘the classic and perhaps original moment of liberal neutrality’ (Rudisill, 2000, p. 154). He recognizes the dependency of Mill’s neutrality on a conception of the good, the summum bonum of happiness in autonomy, but argues that this is structurally similar to Rawlsian neutrality’s dependence on political consensus (compare also Laborde, 2017, p. 26; Tahzib, 2018, p. 522).

15. Gaus’s own principle of neutrality that he develops elsewhere is also subject to the logic of neutrality as ‘a matter of degree’. His theory of neutrality is restricted to ‘the set of moral persons’ which ‘includes all but the most severely injured, insane or psychopathic personalities’. Narrowing down this set ‘serves only to make the principle of neutrality less radical; those who seek to broaden the set will also even further radicalize the principle of neutrality’ (Gaus, 2003, p. 140).

16. Rudisill comes to a similar conclusion when evaluating Millian and Rawlsian neutrality: ‘Both of these theories, as it turns out, are neutral only to a limited range. Neither Rawls’s nor Mill’s theory is going to be neutral in any sense of the word with respect to, say, the Calvinistic Theory. In this respect, Rawls has not established a theory that is preferable because more comprehensively neutral than the theory offered by Mill. In addition, we must understand Rawls as accepting that the defense of an entire political theory is to be made on grounds of its actual acceptance only’ (Rudisill, 2000, pp. 164–165).

17. Arneson responds to a statement by Larmore. Interestingly, Larmore’s statement appears to anticipate Gaus’s theory of neutrality as pertaining to a set of persons. In Gaus’s critique of Larmore’s reading of Mill, however, this is not discussed. Larmore’s original statement goes as follows: ‘We should first observe that political neutrality (…) is a relative matter. It does not require that the state be neutral with respect to all conceptions of the good life, but only with respect to those actually disputed in the society. Where everyone agrees about some element of human flourishing, the liberal should have no reason to deny it a role in shaping political principles’ (Larmore, 1987, p. 67).

18. This policy no longer exists since a court ruling of the European Court for Human Rights in 2012.

19. Compare Balint on toleration (2017, p. 141): ‘Toleration cannot in itself answer the question of its boundaries’.

20. Moreover, Laborde argues that – as her discussion about Dworkin has illustrated – neutrality ‘is rooted (…) in a thin theory of the good’ (p. 200). Here, I focus on the jurisdictional boundary problem.

Additional information

Funding

This work was supported by the Research Foundation – Flanders (FWO).

Notes on contributors

Ben Van de Wall

Ben Van de Wall obtained his PhD as a member of RIPPLE (Research in Political Philosophy and Ethics Leuven) at the Institute of Philosophy at KU Leuven in Belgium. This article is part of a research project that investigates the relationship between state neutrality and political identity.