NORMATIVE LEGAL POSITIVISM, NEUTRALITY, AND THE RULE OF LAW (DRAFT) Bruno Celano Università degli studi di Palermo
[email protected] www.unipa.it/celano 1ST CONFERENCE ON PHILOSOPHY AND LAW NEUTRALITY AND THEORY OF LAW Girona, 20th, 21st and 22nd of May 2010 07-celano.indd 1 5/5/10 18:26:40 07-celano.indd 2 5/5/10 18:26:40 «Neutrality is not vitiated by the fact that it is undertaken for partial [...] reasons. One does not, as it were, have to be neutral all the way down» (Waldron, 1989: 147). «Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which the instru- ment is put. It is the virtue of efficiency; the virtue of the instrument as an instrument. For the law this virtue is the rule of law. Thus the rule of law is an inherent virtue of the law, but not a moral virtue as such. The special status of the rule of law does not mean that con- formity with it is of no moral importance. [...] [C]onformity to the rule of law is also a moral virtue» (Raz, 1977: 226). 1. InTRODUCTION * Usually, in jurisprudential debates what is discussed under the rubric of «neutrality» is the claim that jurisprudence is (or at least can, and should be) a conceptual, or descriptive —thus, non-normative, or mor- ally neutral (these are by no means the same thing)— inquiry: a body of theory having among its principles and its conclusions no substantive normative claims, or, specifically, no moral or ethico-political claims; and that the concept of law, as reconstructed in jurisprudential analysis * Earlier versions of this paper were presented at the Seminar on legal philosophy, Uni- versity of Palermo, and at the DI.GI.TA., University of Genoa.