The Neutrality of Law's Reason: One Answer to Paul's Question?
whoooo26505 at yahoo.com
Thu Oct 13 07:55:30 PDT 2005
If it is impossible for neutrality to exist, what vocabulary do you use to describe ostensible neutrality? If Scalia votes to protect flag burning even though he hates it -- and if he does this because the decision constituence he uses to read the First Amendment commands the result -- what kind of words do you use to describe his choice? Let me put it this way. There are two possible options: (1) Scalia votes with Rehnquist on flag burning; (2) Scalia votes with Brennan. Does your vocabulary distinguish these two phenomena? In both cases, is Scalia voting ideology? In both cases, is he being biased? If what you are saying is that there is no way to vote neutrally, we need to identify a new term to distinguish ostensible neutrality from ostensible bias. I guess you can use the terms "hard" and "soft" politics. But go plug that back into the original question: why can't judicial review be used as a mechanism to promote soft politics (i.e., neutrality) over hard politics (dire!
bias)? You can't escape these distinctions with word games. They don't go away.
RJLipkin at aol.com wrote:
Paul's questions are important ones. Without suggesting that my remarks approach a complete answer regarding why judicial review has achieved its influence, let me suggest that part of the answer is a belief in the neutrality of reason. If reason, as a well-defined and practiced human activity can be neutral with respect to substantive moral, political, and social values, then it should be possible for a human institution--law--to embody reason and achieve a similar neutrality. Challenging reason's neutral, therefore, goes a long way in challenging law's neutrality, and gives a boost to the view that law cannot function without non-neutral substantive values.
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