The aim of this paper is to address a worry with Ronald Den Otter’s case for judicial review. Den Otter’s argument rests on the notion of “public reason.” The term is used here to mean a justification for principles and rules which cannot be rejected by reasonable people on reasonable grounds. Granting Den Otter’s argument up to the point that judges are indeed best suited to come up with a set of sufficiently public reasons, there is a worry with how judges must decide between multiple public reasons and end with the “best” public reason. Some principle is necessary to guide this decision-making process. I think this principle, as evident in public reasons, is the principle of impartiality (and neutrality). This essay begins with an explication of impartiality and finds a notion of neutrality at its core. With this in place, I explore impartiality and neutrality within Den Otter’s picture, eventually leading up to the worry about judicial review. I argue that judges cannot be sufficiently (and consistently) impartial in deciding the best public reason from a set of sufficiently public reasons; as such, if we want to move closer to impartiality, we must move the voting from the judges to the citizens.  

To set the stage for our discussion, let me begin by providing a sketch of what I mean by “neutrality” and “impartiality.” First, some caveats. It is crucial to distinguish these two terms; often, these terms are conflated and the distinction is blurred. For instance, judges are synonymously labelled as “impartial” and as “neutral.” This makes things unclear, especially when we want to understand how to conceptualize the function of these terms. In short, I think neutrality is a necessary condition of impartiality, meaning one of the features of impartiality is that it carries the notion of neutrality.

Let me start by first sketching a basic picture of the structure of impartiality. Impartiality is a concept typically found in discussions of morality, and these discussions help illuminate some of the dimensions of impartiality. One dimension of impartiality is impersonal, meaning dispassionate or indifferent. In this case, the good judge is impartial insofar as they are not swayed by emotions or weigh in personal considerations – for example, an angry judge should not deliver a harsher sentence to a defendant, nor should the judge deliver a more lenient sentence because the judge and defendant both enjoy jazz music. Another dimension of impartiality is equality, which suggests a level playing field for all. When I say “all,” I want to remain neutral to the fact that it can encompass an impartial assessment of moral rules, conceptions of good, and other abstract conception, and not just moral agents. Here is a moral example of impartial equality: William Godwin (Godwin, 1793) imagines a scenario where one must choose to either save a chambermaid or Fenelon (the archbishop of Cambrai) from a fire. If the rule was to promote the best consequence, the clear outcome would be saving Fenelon, since he benefits thousands with his works. Even if the chambermaid was one’s own wife or mother, they would still be on a level playing field insofar as the rule to promote the best consequence, and Fenelon would still choose the archbishop over one’s own wife or mother in promoting the best consequence. This is far from an exhaustive account of impartiality, but we have enough of a sketch to move on.

Let me end this discussion on impartiality with a more formal definition, provided by Bernard Gert, we can later make reference to: “A is impartial in respect R with regard to group G if and only if A’s actions in respect R are not influence at all by which member(s) of G are benefited or harmed by these actions.” (Gert, 1995) There a couple things to note here. This formulation is not strictly a moral formulation. This formulation makes reference to an agent’s point of view (the agent being “A”) and how this agent executes (or, the “actions”) impartial treatment. Furthermore, it is always with reference to another agent (or, “group G”) and how they are treated (or, “in respect R”). Neutrality seems to be thematic in this conception of impartiality.

Before exploring the relationship between neutrality and impartiality, let me briefly outline what is meant by “neutral.” The relevant type of neutrality for our discussion concerns actions; that is, similar to our formulation of impartiality, neutrality regulates how one acts. For instance, Joseph Raz (Raz, 1998) gives the example of being neutral between conceptions of good. He writes, “Such a principle [neutrality] will require the state to react in a way yet to be specified, i.e. neutrally, to disagreements about conceptions of the good […]” (p. 31) Here, the state’s actions are regulated by neutrality, and its correspondingly neutral actions are such that they are unspecific with respect to (in this case) conceptions of the good. Perhaps we can modify Gert’s impartiality formulation for neutrality: A is neutral in respect R with regard to view V if and only if A’s actions in respect R are yet to be specified to view V.

So how does neutrality map onto impartiality? Taking, for instance, the first dimension mentioned above, impartiality as being impersonal might incorporate neutrality in that we remain neutral to our views as subjective individuals. Thomas Nagel (with the help of Derek Parfit) can help us out here with the distinction between agent-relative and agent-neutral. (Nagel, 1986) The basic idea is that a reason for action is agent-relative if it makes some reference essential reference to a person, and it is agent-neutral if it does not. If I were a judge, I would act on agent-relative reasons if delivered a harsher sentence because the defendant made me angry (since my anger is a reason for me but nobody else). Similarly, moving to the second dimension mentioned above, my reasons to save my wife over Fenelon are reasons for me and nobody else (after all, my wife is not anybody else’s wife, hopefully). In effect, my acting agent-neutrally is to act in a way in which agent-relative reasons are yet to be specified. Now to address the question of the relation between neutrality and impartiality: neutrality is a necessary condition to impartiality, but neutrality on its own denotes a more narrow idea of non-specificity.

                  Before investigating in any depth the relevant uses of impartiality and neutrality in Den Otter’s picture, it is appropriate for clarity’s sake to merely identify them first. To do this, let me first give an overhead view of Den Otter’s enterprise, then magnify on the parts relevant to impartiality and neutrality. Den Otter’s uses the Rawlsian idea of public reason to justify judicial review. Den Otter’s view arises in the context of value pluralism within a liberal democracy. A plurality of values is problematic when the fundamental values of the citizens are in conflict with the values held by the state. The state, in accordance with its values, issues coercive authority, and this coercive authority must be justified to the citizens. This justification comes in the form of public justification; namely, a justification which cannot be reasonably rejected. Public justification must be grounded in public reasons, which are characteristically anti-perfectionist. Den Otter notes: “Rawlsian public reason is premised on the fundamental distinction between what is true and what is reasonable.” (p. 165) The aim here is not truth, rather it is finding a justification which would be acceptable to all reasonable dissenters. Much is devoted to the nature of public reasons and the appropriate steps to arriving at sufficiently public reasons.

Diving a little further in, Den Otter’s more controversial thesis is that judges are the best at coming up with public reasons. Working within a framework of constitutional liberalism, judges take from the abstract theory of public reasons and translate it into concrete notions of freedom and equality; with this, they may adjudicate controversial cases in a way which is publically justified. Den Otter’s premise in favouring judges over anybody else is a practical one. He writes that leaving it to citizens entails an “unrealistic assumptions about their civic capacities,” (p. 20) and also notes that “courts cannot save Americans from themselves, but they can help them to understand the importance of protecting the freedom and equality of everyone when certain constitutional questions arise.” (p. 19) It is difficult to see if there is a principled reason for judges being better at coming up with public reasons. Den Otter adds: “that judges are more likely to be able to identify sufficiently public reasons than citizens and their elected representatives are in the most important constitutional cases.” (p. 20) By and large, Den Otter seems to rest his argument on contingent claims.

With this general picture in place, let us return to our aim of identifying the relevance of neutrality and impartiality in Den Otter’s picture. To start, the Rawlsian liberal framework is supposedly neutral, and impartial in its genesis. This sets the stage for the crux of our discussion: how judges must be impartial. (Here, we must grant Den Otter’s claim that the judges are the best at identifying public reasons.) First, judges must be impartial when coming up with public reasons. Second, I think judges must also be impartial after coming up with multiple sufficiently public reasons and deciding which one public reason to commit to. I argue that judges fail in this second respect.

Let us begin by investigating the first claim to neutrality and impartiality which underlies the Rawlsian liberal framework. Starting again with a rough sketch, Raz (1990) identifies four themes in the view put forth by Rawls. First, “limited applicability” refers to the fact that the Rawlsian view is not a comprehensive theory of justice; rather, its application is limited to a modern constitutional democracy, where there is a pluralistic society with a generally shared common culture. (p. 7) Second, “shallow foundations,” what Raz has issues with, refers to the fact that justifications must be founded on the “common currency of our public culture.” (p. 8) Third, the “autonomous” feature adds the idea that Rawls does not start with general moral truths – in fact, it is indifferent to what is truth – rather, its starting point is within common culture. Fourth and finally, “epistemic abstinence” highlights the idea that the doctrine of justice does not claim to be true; that is, some truths are off limits (regardless of their truth value) because they are not sufficiently “public.” This, according to Raz (p. 10), is motivated in the name of stability and social unity; moreover, they are commitments tied to the Rawlsian liberal framework. These four themes are useful to keep in mind, and we will make reference to them in our discussions of impartiality.

Now, what is the relationship between a liberal framework and impartiality? Nagel (1987) goes into the paradoxical nature of liberalism and its notion of impartiality. He notes that whatever our conception of politically endorsed morality is, it must be impartial; what people disagree on is what this impartial morality is supposed to be, and this calls for a “higher-order impartiality.” (p. 217) In Nagel’s words, higher-order impartiality is necessary for liberalism because, “in politics, where we are all competing to get the coercive power of state behind the institutions we favour – institutions under which all of us will have to live – it is not only our personal interests, attachments, and commitments that bring us into conflict, but out different moral conceptions.” (p. 215-216) The higher-order impartiality is important for questions of political legitimacy and justifying coercive force. Talk of this sort of “higher-order” impartiality has been very abstract thus far, so perhaps an illustration will help clarify what is being discussed. I think this sort of impartiality is apparent when applied to moral rules. Let us begin by distinguishing what would be “lower-order” impartiality. Take for instance the rule, “Do not break promises.” We can be impartial insofar as executing this rule by not making any exceptions to this rule; so, for instance, we would be equally diligent in keeping a promise to a stranger as we would our spouses. Now, “higher-order” impartiality would refer to us being impartial when we come up with moral rules. A moral rule like, “Christians may break promises,” would not be impartial because it shows favour to Christians. There is a difficulty, however, with this “higher-order” impartiality, and it relates to the grounds for one’s belief something is impartial.

There is a problem with competing conceptions of impartiality. For example, take again the rule, “Do not break promises.” This might seem sufficiently impartial, but somebody might retort, “There are clearly cases where breaking promises is permitted or even required morally.” These exceptions seem to violate impartiality. Even if you believe that the rule against breaking promises is sufficiently impartial, clearly the opponent is not unreasonable for rejecting it. What do you appeal to when facing this opponent? The answer to this question sheds light on how impartiality is tied into the conception of liberalism. Liberalism provides “a maximally impartial standard of right which has priority over more specialized conceptions in determining what may be imposed on us by our fellow humans, and vice versa.” (p. 239) In the end, the liberal framework is an impartial framework which trumps all other purported impartial frameworks.

Nagel warns that liberalism must not be conceived as committed to the moral ideals of autonomy and individuality, or else it would become “just another sectarian doctrine.” (p. 223) The aim is a framework from which we can assess all other doctrines. Thus, liberalism must be defended as a theory of impartiality, or a theory that is inextricable with an interpretation of impartiality. The conception of impartiality assesses not only benevolence and how coercion are to be exercised, but higher-order concerns of how we identify benefits or coercion. Liberal impartiality strays from Gert’s formulation of impartiality in that it is directed towards beliefs rather than actions. In Nagel’s words, liberal impartiality tries to make “the epistemological standpoint of morality impersonal as well.” (p. 230)

Let us now investigate how the judge must be impartial when coming up with public reasons. Returning to the more general, formal definition: “A is impartial in respect R with regard to group G if and only if A’s actions in respect R are not influence at all by which member(s) of G are benefited or harmed by these actions.” “Actions,” for the judge, would be coercive actions – the goal, then, is justified coercive actions vis-a-vis public reasons. Using the categories provided by Raz, judges must be impartial in accordance with two themes: “shallow foundations” and “epistemic abstinence.” Shallow foundations refer to the impartiality insofar as neutrality towards theories of good (anti-perfectionist).  To be neutral to theories of good means that any public reason must not favor a specific value system – for instance, a non-neutral theory of the good might be that God (and a life devote to God) is the best kind of life, or perhaps that a life devoted to pursuing the pleasures of chocolate is the best kind of life. This is problematic because any coercion based on some particular theory of the good unjustly violates the autonomy of those not committed to that particular theory of the good (e.g. perhaps the coercive theistic laws infringe on the chocolate-eaters’ way of life). Similarly, when we talk of judges showing “epistemic abstinence,” it means that that judges must put aside their own views on truth, particularly in regards to a doctrine of justice. Raz writes that “certain truths should not be taken into account because, though true, they are of an epistemic unsuited for public life.” (p. 4) Again, even if it were true beyond a doubt that worshipping God our ultimate purpose in life, judges would need to put these sorts of truths aside when coming up with public reasons. This second theme, “epistemic abstinence,” reflects liberal impartiality – that is, it demands that conceptions of truth need to be impartial. Judges must be impartial in this sense in coming up with sufficiently public reasons, but they must also be liberally impartial in the second step of weighing between different public reasons.

As we move to my main argument, let me first clarify the problem. Den Otter writes that a second challenge for the judges after coming up with sufficiently public reasons is weighing “the remaining public reasons appropriately in reaching the conclusion that is most publicly justified.” (p. 186) Den Otter seems to be more concerned with the method involved of coming up with sufficiently public reasons and arguing that judges are the best filters for ending up with a set of public reasons. But the further issue is that once we have public reasons, judges must decide which from the set is best; moreover, at this point, the sort of reasoning involved in coming up with public reasons runs out and the judges must use their own discretion. Sincere, good faith attempts by the judges still seem problematic. The judges have various biases, like political commitments, which seem to subtly distort their judgement so that the “best” public reason we end up with is skewed. For example, imagine there were sufficiently public reasons to support abortion on one side, and there were sufficiently public reasons against abortion on the other side. Public reason cannot help judges decide between the two. If we imagine further that the judges in charge of the decision were conservative, we may end up with a publically justified law against abortion every time. This seems unfair to someone who supports abortion. Nevertheless, I think there is a way of making this fairer.

The judges, when deciding between competing public reasons, must be pushed to liberal impartial. There is something that sounds initially circular about this proposal. Since judges must be impartial in coming up with public reasons, and the set of public reasons they end up with have some notion of neutrality embedded in them, it seems odd to expect that a further impartiality would give novel answers to the question of which public reason is best. But this misses the point: judges engage in a different kind of reasoning when weighing public reasons. Let us track the uses of impartiality in these modes of reasoning. In merely identifying public reasons, the judges use the sort of general, action-oriented impartiality formulated by Gert. In weighing multiple sufficiently public reasons, the judges engage in an epistemic, liberal impartiality. Since the public reasons are already impartial in the prior senses, we need a different sort of impartiality to adjudicate between public reasons.

Judges are not well-suited for satisfying the demands of liberal impartiality. When weighing public reasons, judges must resort to their comprehensive doctrines, in some sense, because their adjudication requires some commitment to the truth of certain claims. To illustrate, imagine there are sufficiently public reasons both pro-affirmative action and anti-affirmative action, and judges must adjudicate on which public reason is best. The judge might weigh the pro-affirmative action side more heavily because of his understanding of equality and equity. Another judge might give weight because of her understanding of sociological theories. The weight attributed to public reasons is going to reflect some conception of truth on the part of the judge. Any adjudication is going to be epistemically partial.

Perhaps this is the best we can do. This sort of partiality seems like a cognitive deficiency that nobody can get around. The solution might be to let the judges, with their good faith attempts at the truth, vote amongst themselves. But this does not lead to solution that is epistemically impartial. There may be some cognitive bias particular to judges, just as there are cognitive biases particular to scientists (for instance, a naturalistic or mechanistic view of the world).  If our aim is liberal impartiality, which entails epistemic impartiality, it seems the best solution is to let the people decide.

Letting the citizens vote is the closest to liberal impartiality because whatever partiality remains is not problematic. By having a mass vote, there are different attempts at the truth informed by different views of the world. Let us explore this some more with an illustration. Imagine we had a public vote for two opposing public reasons pertaining to abortion. People would vote based on their understanding of religious truths, their understanding of the nature of personhood, their understanding of murder, and so forth. This approach of turning it over to the people is epistemically more impartial because it includes a wider variety of attempts at truth and it does not favor just a select few (like the judges). On a smaller scale, it would be like adding a continental philosopher to a faculty of analytic philosophers – in this case, the faculty is less partial to analytic attempts at the truth. The underlying principle here is that more variety in attempts at truth makes the cumulative whole more epistemically impartial.

There may still be worries about impartiality with citizens voting. What if the population was saturated with, say, Christians? Do they not have unified approaches to truth? Is this the same epistemic partiality we had with the judges? I think this point overstates the homogeneity beliefs in sectarian groups. Christians have all sorts of different understandings of truths relevant to abortion; as evident in Christian populations, not every Christian is against abortion, and even all those against abortion are not against it for the same reason. By and large, the way people come to conclusions is a complex process of weighing various commitments to various beliefs they hold to be true. In any case, the only problematic kind of partiality which remains is on a national level. Another way of tracking epistemic impartiality is tracking the institution: for instance, judges are impartial qua judiciary and scientists are impartial qua academia, and we can make further fine-grained distinctions from there. But shifting the vote to the citizens guarantees that all institutions and attempts at the truth are represented. However, it seems there is a qualifying condition in all these cases; namely, they are all within a particular nation. There is a subtle partiality in favor of members of the nation. It is evident immediately that this sort of partiality is not dangerous or unjustified to the citizens. Showing partiality towards citizens when voting on coercive laws is unproblematic.

What is important for public justification is impartiality. There is an issue which remains unaddressed which may have implications on the central thesis of this essay. The issue is of a substantive principle which judges may draw upon in deciding among public reasons. I have merely provided a formal principle. I have shown that the structure of Den Otter’s argument rests on a fundamental notion of liberal impartiality. The same sort of impartiality must be applied when deliberating between a set of sufficiently public reasons. Judges cannot satisfy this criterion. The citizens, however, may move closer to this impartial ideal but still cannot achieve it; nevertheless, the partiality which remains is justified because it originates from the citizens themselves.

Sources

Den Otter, R. (2009). Judicial review in an age of moral pluralism. Cambridge: Cambridge University Press.

Gert, Bernard, 1995. “Moral Impartiality,” Midwest Studies in Philosophy, XX: 102–127.

Godwin, William, 1793. Enquiry Concerning Political Justice and its Influence on General Virtue and Happiness, ed. Raymond Preston. New York: Alfred A Knopf.

Keller, Simon. Partiality. Princeton, NJ: Princeton University Press, 2013.

Nagel, Thomas. Moral conflict and political legitimacy. Philosophy and Public Affairs (16). 1987.

Nagel, T., 1986, The View From Nowhere, New York, NY: Oxford University Press.

Rawls, John (1996). Political Liberalism, New York: Columbia University Press.

Raz, J. (1998) “Disagreement in Politics,” American Journal of Jurisprudence: Vol. 43: Iss. 1, Article 2.

Raz, J. (1990). ‘Facing Diversity: The Case of Epistemic Abstinence,’ Philosophy & Public Affairs, 19: 3-46.