Justification of Legal Change: In Search for a Model of Neutrality

Abstract

This paper examines neutrality, understood as a necessary requirement for law’s legitimacy. In the conventional, liberal formulation of it, the law must neither favor nor depend on any particular conception of the good. Taking into consideration the critique that the principle of neutrality has received, from within liberalism as well as from rival perspectives, the authors search for an alternative. The proposed solution is the Model of Neutrality as Non-Arbitrariness (the MNN), according to which the making and application of law must seek equilibrium within different justifying reasons that are backing the particular law in question. As such, neutrality under the MNN is conceived as a virtue of legislators and judges which allows them to weigh competing justifications in a manner that appears as best in a particular case.

Keywords

• neutralność
• uzasadnienie zmiany prawa
• liberalizm
• ustawodawcy
• sędziowie