Normative Legal Positivism, Neutrality, and the Rule of Law

Abstract

This paper discusses neutrality as an ethico-political ideal the law should meet. The starting point of the inquiry is normative legal positivism, What justifies normative legal positivism is the value - or the ideal - of neutrality, suitably understood. What, then, is the relevant concept of neutrality? And why is neutrality, so understood, a value? Answers to these questions, can be found when we consider the idea of the Rule of Law. Normative legal positivism envisages neutrality through the Rule of Law. There are two connections. The first is through stability of mutual expectations. The second stems from the ‘inherent neutrality’ of prescriptions. Under both respects, it turns out, in J. Raz’s words, “observance of the rule of law is necessary if the law is to respect human dignity”. Normative legal positivism, Rule of Law, Neutrality, prescriptions, certainty