Countering the Fiction of Neutrality: Pushing for Transparency?

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.