Countering the Fiction of Neutrality: Pushing for Transparency?

IF 0.4 Q3 LAW

Oxford Journal of Law and Religion Pub Date : 2023-01-17 DOI:10.1093/ojlr/rwad003

Cathérine Van de Graaf, Angelika Nussberger

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Abstract

Many scholars accept that the principle of neutrality is to a large extent a fictional concept. They often propose different variations that would better realize its prescribed aim of equality. In this contribution, we argue that state agents in general, and judges in particular, cannot be ‘neutral’ as they are not abstract entities. They do not enter the judiciary with a clean slate but as persons subjected to a myriad of formative experiences, connected to their worldview, gender, nationality, socio-economic background, and so on. Thus, the fiction of neutrality of the State is inevitably linked with a lack of transparency: not showing religious, atheist, or agnostic as well as political convictions is not the same as not having them. An alternative model would be to emphasize transparency, but simultaneously strive for diversity of different convictions represented on the Bench. Such a system would prompt self-conscious reflection on the role of worldviews in the judging process. It would, however, create new dilemmas as it would be impossible to reach an adequate equilibrium and thus undermine the confidence in the judiciary.

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反对中立的虚构:推动透明度?

许多学者认为，中立原则在很大程度上是一个虚构的概念。他们经常提出不同的变化，以更好地实现其规定的平等目标。在这篇文章中，我们认为，一般来说，国家代理人，特别是法官，不能“中立”，因为他们不是抽象的实体。他们不是带着一张白纸进入司法部门的，而是作为一个受到无数形成性经历的人，这些经历与他们的世界观、性别、国籍、社会经济背景等有关。因此，国家中立的虚构不可避免地与缺乏透明度联系在一起:不显示宗教，无神论者或不可知论者以及政治信念并不等同于没有它们。另一种模式是强调透明度，但同时争取法官所代表的不同信念的多样性。这种制度将促使人们自觉地反思世界观在评判过程中的作用。但是，这将造成新的困境，因为不可能达到适当的平衡，从而破坏对司法机构的信任。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Oxford Journal of Law and Religion LAW-

CiteScore

1.00

自引率

16.70%

发文量

期刊介绍： Recent years have witnessed a resurgence of religion in public life and a concomitant array of legal responses. This has led in turn to the proliferation of research and writing on the interaction of law and religion cutting across many disciplines. The Oxford Journal of Law and Religion (OJLR) will have a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.). The OJLR reflects the widening scope of study concerning law and religion not only by publishing leading pieces of legal scholarship but also by complementing them with the work of historians, theologians and social scientists that is germane to a better understanding of the issues of central concern. We aim to redefine the interdependence of law, humanities, and social sciences within the widening parameters of the study of law and religion, whilst seeking to make the distinctive area of law and religion more comprehensible from both a legal and a religious perspective. We plan to capture systematically and consistently the complex dynamics of law and religion from different legal as well as religious research perspectives worldwide. The OJLR seeks leading contributions from various subdomains in the field and plans to become a world-leading journal that will help shape, build and strengthen the field as a whole.