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Law, Politics, and the Constitution

New Perspectives from Legal and Political Theory

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Edited By Antonia Geisler, Michael Hein and Siri Hummel

The fourth Yearbook of the Central and Eastern European Forum of Young Legal, Political and Social Theorists reassesses central concepts of modern constitutionalism between the poles of law and politics: separation of powers, constitutional review, and constitutional rights and obligations. Fourteen legal scholars and political scientists from the region contribute to interrelated debates in both disciplines. Two questions are particularly raised: How can the aforementioned concepts be understood? And: Which role do they play in current national and supra-national institutions? With regard to the second question, an essential part of the chapters focuses on current developments within the European Union and in post-socialist states of Central and Eastern Europe.
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Towards a ‘Soft’ Concept of the State Neutrality Principle

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Wojciech Ciszewski

Abstract

This chapter considers a fundamental problem set against the backdrop of contemporary legal and political philosophy: that of the state neutrality principle – one of the most important standards of modern liberal democracies. The chapter aims at defining an adequate formula of state neutrality, starting with the most significant objection raised against the principle (to be referred to as ‘sceptic’s charge’). The purpose of the chapter is to elaborate a formula of state neutrality that is resistant to the objection. Possible elements of the conception of neutrality will be analysed by indicating three different questions concerning (1) the character of the principle, (2) its rationale and (3) its reference. In the concluding part, a formula for soft state neutrality is presented, that is, on the one hand, theoretically well-grounded and, on the other hand, functional and useful in practical discourses, especially in legal discourse.

The neutrality principle is one of the main liberal constraints on the activities of public authorities. Similar to human rights, principles of proportionality or subsidiarity, the neutrality standard aims for protection from the arbitrary use of state power. The special esteem that is attributed to neutrality can be illustrated by a metaphor of Ronald Dworkin (1985, 181–204), who regards this principle as the nerve of contemporary liberalism. In fact, disputes about neutrality are much older than recent liberal ideas; as pioneers of such considerations, we may indicate Immanuel Kant and John Stuart Mill. The contemporary understanding of...

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