Edited by Susan A. Bandes, Jody L. Madeira, Kathryn D. Temple and Emily Kidd White
Edited by Shauhin Talesh, Elizabeth Mertz and Heinz Klug
Demos and Agora
This article is a cry for help. It is a search for some possible view of legal philosophy that does not render it either intrinsically useless or useless in its current form. In this article I focus on two methodological hallmarks of contemporary anglophone legal philosophy. The first is the Archimedean way in which the legal theorist places a critical distance between him- or herself and the subject matter of the philosophical inquiry. The second is the introverted way in which the accuracy of any given legal theory is confined to the theorist’s own puzzles, concerns, controversies, and preoccupations. Whilst I consider those who have turned against these methodological commitments and called for an anti-Archimedean or extroverted approach to legal theory, I explain how those who accept both commitments adopt a very modest view of the helpfulness of legal philosophy. I then consider whether, contrary to the modest view, if we accept both commitments, then whatever is true in legal philosophy will always be trivially true, irrelevant, or inconsequential, for any non-philosophical practice or non-philosophical inquiry about the law. The value of this article, I hope, lies in its refutation.
This article attempts to determine whether there exists a coherent, plausible, and ultimately 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.