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Neutral Institutions.

Considerations on Loyalty
András Sajó∗

Prepared for Trust and Honesty Project, Budapest Collegium Draft—

Hungarian Academy of Sciences; University Professor, Central European University

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Introduction

Neutrality has become an important dimension or value of state activities, including civil service, government speech, science, arts funding, etc. Nevertheless, the theory of state neutrality (including that of neutral institutions and neutralization) is underdeveloped, with somewhat troubling consequences. Attempts to ensure government neutrality in crucial social areas has not brought systemic standards. The actual power of government in a neutralized environment depends on the nature of a given sphere of life and the resources available and permissible in a given constitutional arrangement. This paper argues that the modern state (as a body) pretends to be non-partisan or neutral in an increasing number of instances.1 Institutional arrangements are developed to make that claim credible. Given this trend towards neutralization, a discussion of loyalty to and trust in the modern democratic state shall not be limited to democratic political government structures. Neutral public institutions (including neutralized government institutions) are an increasingly important though neglected development of societal organization. The meaning of “neutral” and “neutralization” is ambiguous. It will be the task of this paper to review the various meanings and their core common sense. Trust in this case refers to trust in the state and its government in the psychological sense: reliance on the basis that one assumes fair treatment and (in the welfare state) basic state support. Loyalty is also used in a political psychology sense, as. commitment to an institution (or person) even where and when alternative options may appear preferable. 2 State neutrality and neutralization are situations where trust in, and loyalty to, state institutions and the state are not based on democratic participation or democratic legitimacy. 3 Quite contrary,
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This assumption is based on András Sajó, "Government Speech in a Neutral State," Norman Dorsen & Prosser Gifford (eds.), Democracy and the Rule of Law. CEU Press, 2001, 369-389. The discussion of civil services and of neutrality in speech follow the ideas developed in that paper.
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Here I follow Margaret Levi, A State of Trust, Badia Fiesolana, San Domenico, European University Institute, 1996 referring to Cook, Karen S., and Richard M. Emerson. “Power, Equity and Commitment in Exchange Networks.” 43 American Sociological Review 721-39 (1978).
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Loyalty in this regard is described as “the tie of presumptive obligation.” [Stephen L. Carter, The Dissent of the Governed – A Meditation on Law, Religion, and Loyalty, Harvard University Press, Cambridge, London, 1998, p. 4.] Fletcher distinguishes a special form of loyalty, notably “group loyalty” in political life, where a “factor of ideological commitment [is added] to the emotion of attachment.” According to him, “political loyalties display intricate reciprocity. The leadership can act in reliance on their followers, and the followers acquire a sense of themselves as serving a goal larger than a single life. If they do not stand in a

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neutrality indicates the shortcomings of the model of political trust that is based on either democracy or primordial identity (though in certain circumstances it relies on a specific form of authority derived from the professionalism and expertise enabled by neutrality or neutral institutional settings). Section One will reconstruct meanings of the neutral state as it emerged in history, including noninterference into religion, war and the economy. The impact of equality will also be considered. These traditional aspects relate to the position of the state (government) vis-à-vis other social structures and other states. Section Two deals with autonomous social institutions that function as the result, or recognition, of institutional neutralization. Increasingly, in a complex modern society it is not the direct position of the state as an entity that matters for purposes of neutralization. Rather, the state as public power moves from certain public spheres and allows a certain autonomy for the regulated sphere, which is deemed neutral (not subject to direct governmental/political interference) for that very reason. The examples of science and higher education will be discussed in Section Two. Section Three addresses the specific organizational solutions used to neutralize the state. Here, neutralization is achieved through techniques that concern governmental structures. An examination of "neutral powers" and civil services is followed by an analysis of independent (expert) agencies ( organizational neutralization). The analysis refers to public media regulatory authorities and central banks. Section Four looks at the conflict between normative concepts of neutrality and the neutrality of the actual institutional arrangements. Not only do attempts at neutralization fail to meet the expectations of normative theories, but they also fail to satisfy their own promises of neutrality, professional efficiency and accountability. These shortcomings and contradictions will negatively impact the capacity of the neutral state to generate or maintain trust. Section Five offers some speculative remarks regarding the impact of neutral government institutions on public trust and loyalty. Neutralized spheres of public life remain subject to governmental and partisan influence. Nevertheless, the regulation of public life differs considerably from the use of democratically legitimized power and
personal relationship with the group’s leadership, they are tied to the group by a shared understanding that they are members of the union or party, or citizens of the nation. [L]oyalty brings meaning to their lives.” [George P. Fletcher, Loyalty: An Essay on the Morality of Relationships, Oxford University Press, New York, 1993, p. 33.] Needless to say, all these assumptions are to re-evaluated in the case of individual (citizen) loyalty to neutral institutions.

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authority. Hence new forms of trust and eventually loyalty to these institutions emerge, though "traditional" loyalty may suffer because of this. 1. State neutrality through non intervention 1.1. Religion The idea of state neutrality developed primarily in the context of state-church relations. Separation of church and state and the acceptance of the neutral state reflected and institutionalized the failure to structure social homogeneity around salvation. State neutrality in religious matters is the essence of the experience of fratricidal wars of religion. A minimum of social peace and homogeneity quintessential for the existence of the state could be achieved only by neutralizing the government in matters of religious (then – fundamental) beliefs of the citizenry. The desire for state neutrality traces back to the period of religious wars during the Reformation. Initially, international treaties recognized that non-state religions (or at least some) would not be persecuted. (The first occurred in the Netherlands: the Union of Utrecht Treaty 1579, which granted freedom from the inquisition). Theologians and freethinkers argued that constraints in matters of faith could not bring salvation. Slowly the idea emerged that the state should exercise toleration with regard to religions given the nature of a state power that was increasingly seen as secular. John Locke offered the classic summary in his Letter on Toleration (1689).45 This toleration lead to noninterference. Though Locke does not take a position on state churches, given his view on the purely spiritual function of religion, he seems to accept total separation. The neutrality of tolerance is a matter of state competence in the sense that religion does not concern state business. In principle, the state may still take sides with one religion, without
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John Locke, Four Letters on Toleration, London, Warwick House, New York, Bond Street.

“[T]he care of the salvation of men's souls cannot belong to the magistrate; because, though the rigour of laws and the force of penalties were capable to convince and change men's minds, yet would not that help at all to the salvation of their souls.”(7) “In private domestic affairs, in the management of estates, in the conservation of bodily health, every man may consider what suits his own convenience and follow what course he likes best.”(14) [N]either Pagans [in America], nor any dissenting Christians [in Europe], can, with any right, be deprived of their worldly goods by the predominating faction of a court-church; nor are any civil rights to be either changed or violated upon account of religion in one place more than another.(24) “Neither the right nor the art of ruling does necessarily carry along with it the certain knowledge of other things, and least of all of true religion.”(16) Toleration means that men are freed “from all dominion over one another in matters of religion”.(18) “Princes, indeed, are born superior unto other men in power, but in nature equal.”(16) “[T]he church itself is a thing absolutely separate and distinct from the commonwealth.” (13)
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Locke excluded papists and atheists from those whose worldview should be tolerated. The reasons for such exclusion are acceptable even today, though Locke erred with regard to the factual basis of his conclusion. Following the prejudice of his times, he considered these groups to be dangerous to the state or to people of different beliefs.

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prosecuting or sanctioning other denominations, e.g., the government may declare the major festivals of a religion to be national holidays. Such state may still satisfy Locke’s expectations of toleration, though it will not be neutrality in the sense of not taking sides. Of course, the religious struggles that lead to toleration cannot explain the secularization that later lead to the state’s indifference to religion. (One could say that state neutrality is toleration in a secular state.) Indifference or secularization as a source of neutralization is the result of changes in worldview (certainly not unrelated to religious pluralism). The advancement of learning and the increasing reliance on science and reason were important elements in the process of neutralization, in which social and political life lost "theological guidance." Carl Schmitt recognized with some resignation that life spheres are neutralized one after another, beginning with religion. 6 History is a history of the neutralization of the spiritual. The economy and science were the next to be neutralized, although the government’s relation to these spheres might correspond to different understandings or patterns of neutrality. It took a long time to accept in practice the idea that the state should be neutral in matters of religion in the sense of complete separation (mutual non-interference). Only a few countries, including the United States, follow this model. Even in the United States, it was the delicate balance of religions that lead to the First Amendment, rather than a firm conviction regarding the nature of the state. State neutrality is not expressly recognized as a general constitutional principle, although it was a major trait of the self-portrait of the 19 th century liberal state. Moreover, in many liberal constitutional systems, government neutrality is textually institutionalized at least in the context of religion and churches. The non-establishment provision of the (United States) First Amendment and the provisions for the separation of church and state in many post-communist constitutions indicate the obligation of the government to abstain from matters of faith. According to an alternative formulation, government should not take sides among religions. The state maintains a certain distance from all religions, but how distant it is and whether the distance is equal to all, is a matter of contingencies. 7 In all practical forms of
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The reconstruction of Schmitt’s theory is based on Carl Schmitt, “Das Zeitalter der Neutralisierungen und Entpolitisierungen,” 79-96, in: Carl Schmitt, Der Begriff des Politischen, Berlin, Duncker-Humblot, 1996 (1934).
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Krystyna Daniel and Cole Durham, Jr., “Religious Identity as a Component of National Identity: Implications for Emerging Church-State Relations in the Former Socialist Bloc,” 117-152, in András Sajó and Shlomo Avineri (eds.), The Law of Religious Identity: Models for Post-Communism, Kluwer Law International, 1999.

however.Sajo Neutrality Draft 6 state neutrality. including other forms of expression and beliefs. We will see below to what extent this satisfies more contemporary notions of state neutrality. While religion was historically too divisive to run the risk of state involvement. but such goal would not require specific moral crusades against specific beliefs as such. With regard to other patterns of behavior. the closer attempts towards homogenization come to the idea of salvation. Such goals. there can be an ad hoc moral state goal as determined from time to time in the democratic process. Of course. Old arguments regarding toleration remain valid in these contexts. Governments. 1998. creeds other than religious beliefs might become central (such as ethnic identity). Of course. (Harmful consequences of beliefs are a different matter. Strictly speaking. State neutrality as an express tenet of liberal constitutionalism remains more or less limited to religion. social justice).) A fair number of liberal (and less liberal) constitutions refer to moral goals (e. as developed from confessional neutrality.”8 This cartoon neutrality drawn by Schmitt is pure falsification: in reality. The model of neutrality offered here is that of the neutrality of the outsider who avoids substantive involvement. and who refuses to become an arbiter or even umpire. the fear of a salvation-triggered civil war was less compelling. however. such as national homogenization along non-religious lines.g. state neutrality may contradict other legitimate state goals and functions. especially in the case of a nationalist government. means embracing the enemy: “the nationalist inspired by national sentiment cannot be granted more protection than the enemy of the nation and that one who despises the nation. . Moreover. the minimum is that the state refrains from siding with one or another religious truth. The distancing and insulation of the state from religion was made possible by secularized modernization. La Laicité. For Schmitt. other personal concerns and beliefs were not held to be sufficiently central to provoke mass social resistance. op. Presses universitaires de France.. the more relevant neutrality concerns will become. particularly 8 9 Carl Schmitt. Guy Haarscher. the nationalist receives all the financial and moral support the government wishes to provide. Neutrality may hamper such efforts. Paris. neutrality applies to all beliefs. cit. are not to be interpreted as a mission. 9 The prohibition to persecute the person “who detests the nation” follows from the state’s renouncement to follow a moral mission. worldview neutrality is still limited to non-persecution. In a secular world. the state’s neutrality in matters of worldview. Among the conditions of liberalism.

unless the breach of the Convention occurs on its territory. it must apply restrictions and prohibitions impartially to both (or all) belligerents. but it is limited to twenty-four hours.) 1.” 12 The neutral power is obliged to assure its neutrality. again as a lesson of armed conflict. For example. the formation of corps of combatants or the movement of troops. (It is questionable how neutrality is now relevant. . However. After centuries of uncertainty. a period of not less 10 11 Signed . may be inclined to convey ideological messages and beliefs. given the subsequent changes in warfare. like the erection of wireless telegraphy and similar apparati for communication purposes.Sajo Neutrality Draft 7 to the extent to which they serve (or become the. these messages may have religious connotations. “[w]hen war-ships belonging to both belligerents are present simultaneously in a neutral port or roadstead. According to the Convention “[t]he territory of neutral Powers is inviolable. This meaning refers to the relation of neutral powers to belligerents. entry into force . remaining in the ports or waters of a neutral power is not excluded. however. except when “absolutely necessary. Chapter IV of the Convention prohibits the use of railway material coming from the territory of neutral powers. according to the Convention Concerning Rights and Duties of Neutral Powers in Naval War (Hague Convention XIII). Neutrality in international law A second.2. (In democracies where the constitutional or other institutional and social structures of separation of church and state are not well established. tools of) political parties. widely respected meaning of state neutrality emerged in international relations.18 October 1907. There is a strong emphasis on keeping the belligerent powers apart while they are on the territory of the neutral power. it is not called upon to punish acts in violation of its neutrality. the Second Peace Conference at The Hague10 settled the matter for some time.26 January 1910. including the political process (how to vote?)? 12 Chapter I lists acts that are to be regarded as a violation of the neutral power’s territory. at least temporary. The Conventions proved to be hardly applicable in aerial warfare already in the first World War) The Hague Conventions V and XIII list the rights and obligations of both belligerents11 and neutral powers in war on land and at sea. The neutral power is allowed to resist attempts to violate its neutrality even by force. The insulation of the neutral power is not complete. It would require a separate study to discuss the obligations (if such obligations indeed exists) of those parties towards whom the state or its entities are neutral. Consider for example the situation of churches.” Likewise. Are they required to reciprocate state neutrality? Or is it acceptable that churches make claims on the state.

Oxford.. where the majority of the U. the state's position is one of isolation among equals. government neutrality went beyond religion and encompassed the economy and other selected “neutralized” social spheres. Die Streit der Fakultäten. Nevertheless. or materiel. 2 nd ed. (The Contest of Faculties).. e.Sajo Neutrality Draft 8 than twenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of the ship belonging to the other. When exercising its rights laid down in the Convention. an unconstitutional use of the state’s police power. the neutral power is forbidden to supply a belligerent power with warships. 13 See Kant.g. At the same time. Further. this view prevailed in the 1905 Lochner case. ammunition. but also the responsibility of the neutral power to maintain its own neutrality. Here it is the neutral state that is primarily protected from intervention. such as science and academia.” The Convention does not only list obligations of the belligerent powers. Non-interference into the economy In life spheres where the centrality of belief plays no role. 13 In these spheres. beginning in the 19 th century. state neutrality in war assumes a mutual but asymmetrical relation. Hans Reiss. the neutral power may use force to impose requirements of neutrality on the belligerent power. ed. Supreme Court found that an act of the state of New York limiting working hours for women and children was unconstitutional. while the neutral state that does not interfere in religious matters lies above the denominations. In American jurisprudence. neutrality as non-interventionism is based on the “inherent” nature of government. government neutrality as a kind of “lack of competence” makes less sense. It is simply against the nature of the state to become involved in the economy. The regulation was. therefore. it must apply the same conditions to all belligerent powers. the neutral power must be impartial. It is quite interesting that academic freedom in Kant is justified pragmatically with the needs of the "lower" sciences (philosophy and natural sciences) to interact freely. In other words. The concept of neutrality that emerges from the Hague Convention differs markedly from the one of tolerance in religious matters. In conditions of war. in Political Writings. 1. . 1991(1798). the neutral state has a positive obligation to repel violations of its neutrality. Laissez faire economists argue on the grounds of efficiency in favor of state non-intervention.S. For example. The act violated the due process clause in the sense that it deprived these women of their liberty to contract.3.

14 Cass R. Economic or political (military) circumstances or electoral whim may require strong government participation in the economy: constitutions are. Given the quintessentially partisan nature of competitive party politics in contemporary democracies. neutrality remained a major concern. Even after the state gave its night watchman role. it should not be biased on a partisan basis.4. Equal treatment as neutrality The cult of equality that emerged following the French revolution and later towards the end of the 19th century created a different (and quite counterintuitive) expectation of state neutrality. as is the case with the German Basic Law. expressly authorize socialistic interventionism. The welfare state has undermined this fundamental aspiration to neutrality of the traditional liberal state. found that the majority’s decision is unconstitutional as it disregards the (economic) value neutrality of the Constitution: it adopts a specific social philosophy (laissez faire) in defiance of public opinion as expressed in legislation. Equal treatment may seem impossible where groups play a zero sum game for power.” Non-interference into the economy is not based on moral considerations respecting the autonomy of a given activity (except. The state is expected to treat all citizens equally. 874 (1987). or. all-national and consequentialist policies. Ironically. both within and outside the economy. 873. “For the Lochner Court.”14 Sunstein claims that the constitutional requirement of neutrality as inaction continues until this day. . it also transfers its activities to non-governmental entities due to functional difficulties within the administration. to a limited extent. the existing distribution of wealth and entitlements. . simply silent on the matter. was a constitutional requirement. Lochner’s Legacy. Wherever the state intervened. dissenting. private liberties and the existing distribution of entitlements). The key concepts here are threefold: government inaction. including such crucial communication-affecting decisions as Buckley v. it tried to do so without undertaking a morally partisan agenda. Justice Holmes. Laissez faire economists rarely claim that state intervention is immoral. .Sajo Neutrality Draft 9 According to Cass Sunstein. or at least. While such treatment generally means equal the treatment of individuals (with variations including meritocracy). Valeo and Bakke. neutrality . of not being neutral. and the baseline set by the common law. The government withdraws not only from production and the regulation of business. it takes a rather specific application with regard to equality among groups. and specifically. although for 19th century lawyers state inaction formed “part of nature. 1. on the long run successfully. therefore. It followed universalistic. the expectation of equality as to the results of elections seems unlikely. Sunstein. Rev. L. 87 Colum. the Supreme Court was accused.

"[u]niversities have generally been unsuccessful in gaining special rights under the rubric of academic freedom. Academia. all major churches received their share. Rev. and the First Amendment. however. with specific obligations of loyalty). information-related activities.” 112 Harv. Communication within and. This means that the state must be partitioned according to some principle of parity among the political parties or interest groups. the press) receives institutional protection because these entities perform special. such guarantee is necessary due to considerable state penetration in financing and personnel (as teachers and researchers are a special category within the civil service. 1776 (1991). the public television channels (RAI) were divided according to political orientation. universities. . be a way to preserve social peace and under specific circumstances may increase the efficiency of the state. this approach meant that the state would become compartmentalized and unable to respond with a single voice to the enemy. L. both the "reds” and the "blacks” received their fair share in civil service and state-controlled enterprises. Sullivan the Supreme Court held that a university “is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment. scientific institutions. or at least universities (which serve both higher education and science). and it accepts through compromise that another interest group does the same with regard to another sphere.Sajo Neutrality Draft 10 However. which is often constitutionally guaranteed. For Carl Schmitt.15 The level of protection or special treatment may vary from country to country.” Frederick Schauer. special institutional neutrality emerges as a combination of civil service professionalism and decentralization. This tendency is noticeable in the various forms of broadcasting regulation. In Italy. The one group receives the privilege that it may regulate or control the part of the state that is important to itself.” 111 S. to a lesser extent. In many democracies. In Germany. Compartmentalization and the states’ withdrawal in favor of neocorporative arrangements may. In Rust v.g. (1997) 84-85.Ct. University) It is revealing that in areas where governmental speech or partisanship are highly likely. in Austria. Institutions.. 1759. as Carl Schmitt indicates using an example of Max Weber’s regarding public university appointments. 2. “Principles. such a biased ‘impartiality’ (balanced partiality) means that competing parties should receive equal treatment in the sense of parity. press subsidies and in the case of schools. Here we look at the institutional neutrality of the communicative and knowledge-generating spheres. originating from public entities of knowledge production (e.S. The technical solutions vary. 84. Autonomous Social Institutions (Science. 15 Schauer claims that U.

“If the people desire to give Congress the power to regulate industries within the state. . Alternativkommentar. 607 (Ladeur). a university that would satisfy specific social interests programmatically . 354 U.. Justice Frankfurter (of which court?) held that a “university ceases to be true to its own nature if it becomes the tool of Church or State. courts do have discretionary powers. Legislation could (and will) do virtually anything in case it has uncontrolled discretion. Carter Coal Co. desperate efforts construct these institutions in such a way that renders them non-partisan and increases their neutrality both in terms of impartiality 16 and independence from the government. which expresses the trend the most clearly and authoritatively. The German theory of art support states that here the government has broad discretionary powers. Decisions of independent self-regulating public bodies that affect communication (including resource allocations) and their statements are no longer considered government speech. the state is free to limit its discretionary powers through the establishment of expert bodies.S. Arbitrariness is the limit. it is not understood as something fixed and given but rather as a process that cannot take place under government-induced 16 Impartiality is the traditional value of judges and neutralization. The independence of the judiciary and the resulting impartiality serves as a model to independent organizations. Bd. concurring). There is even more freedom of choice when it comes to acquisition of and subsidies to art. the state is bound by constitutional principles: the organization must be structured in a way that enables the right to self-management for science and the academic community. Likewise. Constitutional courts too rely on this judicial feature. 114. however. even where the rule of law applies. but it is not for the Court to amend the Constitution by judicial decision.17 The more a self-regulating public body in a given neutral public sphere is shielded from partisanship. Here. New Hampshire. The neutral obligation of the state includes the prohibition against establishing committed universities ( Tendenzuniversität).” Hughes. Here discretion is accompanied by a nearly total lack of external control. It is argued. in Carter v. Such state behavior includes not only the guarantee of scientific (research) freedom but also the provision of the means that enable the work of science. 298 U.. According to the German doctrine. 1. 238.” 19 Where knowledge plays a central role. i. * * * [T]he judicial power may be invoked to the end that the constitutional limitation may be maintained. 318-319 (1936). Of course. the state is required to relate to science and the universities that institutionalize science in a valueneutral way. the more its decisions will appear neutral and less subject to political challenge.559 (Denninger). Sweezy v. 18 19 BVerfGE 35. 234 at 262 (1957) (Frankfurter. See also Alternativkommentar Bd. Where there is discretion without external control. 1.S. 18 The state institutionalizes the protection of science through proper measures of organization and expenditure. 17 Sometimes the review of a regulation affecting speech is limited to the analysis of the composition and situation of the independent body that makes allocative decisions. there will be abuse.e. and the relations of employers and employees in those industries. J. that the discretionary power of the judge is used without power in the sense that it will not surpass the specific decision affecting the parties only.. In this process. they are at liberty to declare their will in the appropriate manner. C. J.Sajo Neutrality Draft 11 From time to time. due to the openness of art.

It was not until 1826 that the first nonsectarian university was established in London.. “The university is the place to which a thousand schools make contributions. Freedom in research is fundamental to the advancement of truth. Academic Freedom. Yale University Press. While in Prussia independence from the state was at issue. sure to find its equal in some antagonist activity. New Haven. the isolation from the state is expressed. there is a special justification for creating institutional autonomy for science. The Idea of a University. Universities and science may serve society by achieving their own goals. Frederick the Great authorized freedom of teaching at the Prussian state-controlled universities. 6th ed.Sajo Neutrality Draft 12 censorship.” 21 The self-referentialism. Hence.” (citation?) The insulation of universities and the academia later reached the level of formal recognition in liberal democracies in express constitutional provisions (such as the rather 20 21 Columbia Encyclopaedia. it was necessary that education become secularized. Although scholars (scientists) have long developed their own communities. and discoveries verified and perfected. and knowledge with knowledge. in the 1940 Statement of Principles on Academic Freedom and Tenure. this is possible only if the community itself is the only judge.” 20 In France. Under the influence of enlightenment ideas. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. Academic freedom is essential to these purposes and applies to both teaching and research. however. 2001. 1996 (1854). It is a place where inquiry is pushed forward. According to John Henry Newman. still in force (where?): “Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. and rashness rendered innocuous. by the collision of mind with mind. John Henry Newman. and its judge in the tribunal of truth. in which the intellect may safely range and speculate. these were private interactions that were not respected by the authorities and hadonly limited impact on the universities. in England autonomy had to be carved out from religion: “Before the concept of academic freedom could gain general acceptance. Kant (Die Streit der Fakultäten) offered a theoretical justification emphasizing the importance of a free academic community for the advancement of learning. . The common good depends upon the free search for truth and its free exposition. among other ??. only under Villemain as minister of public instruction (1839-44) was a law assuring academic freedom established. and error exposed.

. it is argued that total constitutional precommitment would prevent the possibility of crisis intervention by the executive where other than monetary policy considerations shall prevail. The results might be censorial or at least restrictive. Deviant positions will be represented. . Germany) and. freedom of debate and meritocracy. . . The above mentioned trends indicate that neutrality is understood here as the insulation of a self-regulating professional community . Further. the internal power structures restrict genuine neutralization. above all. Finally. and where is it replaced by contempt of court. . which are controlled by independent bodies. courts decide where academic criticism of judicial decisions ends. as in the United States. . The full precommitment (?) to independence and autonomy of universities and research is wanting. 23 Alternativkommentar. though often developed in cooperation with the community of scholars. like broadcasting agencies or central banks. like the loyalty oath. For example. are subject to politicians’ whims. . university structures are often subject to external regulation and administrative review (e. This ambivalence is reflected in the ambiguous constitutional position regarding neutrality in liberal democracies. although science and the scientific (or artistic) communities seem to have "natural boundaries" and the actors seem to be in the position to determine these boundaries. and the state often tries to extend civil service obligations. the isolation is far from complete. . . Academic freedom is undermined in matters of appointment and curriculum. .. Moreover.3 of the German Basic Law) or by the extension of free speech. notwithstanding normatively accepted intellectual freedom. but only for the sake of increasing the amusement. the actual demarkation remains a deliberate choice of those who control actual governmental and social power. Of course.Sajo Neutrality Draft 13 categorical Art. 1 420 (Hoffmann-Riem).” 23 Michel Rosenfeld arrived at the same conclusion with regard to the (now abandoned) “balance” approach in the United States: “the requirement of ‘balance’ actually promotes conformity and non-controversy. 5. to the extent that autonomy is successfully guaranteed. Any application of a 'reasonableness' standard to determine whether a given issue is 22 The same applies to neutral organizations. funding imposes substantive conditions. Conflicting viewpoints in society are represented and reduced in the majority of the mass media. Bd. 22 How bureaucrats outside and inside universities structure higher education is decisive for the culture production within them (even if a constitutional court intervenes to protect the decisive role of senior professors). Research priorities. In the case of central banks. as “ritualistic-symbolic disputes of the big political parties.g.

Congress and the judiciary are ready to take steps to protect or intervene into speech in non-governmental settings. are subject to judicial review25 without any thought about the governmental nature of the school board. Neutrality from Within 3. This formal approach results in the myth of the neutral state bound by law. . “The Jurisprudence of Fairness: Freedom through Regulation in the Marketplace of Ideas.. 912 (1976). Decisions that affect speech. the way in which Congress established the National Endowment for the Arts rendered NEA decisions justiciable.g. State actions as legal decisions follow pre-established rules. Mützenbacher Case.S. as pertaining to a king (head of state). 3. 457 U.. such rule obedience is seen as neutral. in the context of the Library Indexing Committee 26 or the Television Councils. at least where the “space” or institution was created by law or acts in its name . e. This later idea of modern liberalism plays an important role in the writings of Benjamin Constant. BVerfGE 87. is understood to be neutral from the perspective of the one who applies it. in which the neutral power. ‘Pouvoir neutre’ The rule of law as a fundamental component of the constitutional state has strong elements of neutrality. Constant developed a concept of pouvoir neutre.1. the source of precommitment. Very often. Of course.S.” 1976 Fordham L. as they do not deviate from the norms. even in the U. In addition. "Precommitted" here means neutral: the norm. emerges in a constitutional monarchy to solve conflicts among the branches of power and social groups 24 Michel Rosenfeld. 853 (1982). 130. 25 26 Board of Education v. like library acquisitions by school boards and purely private parental library commissions. 877. the idea of state neutrality through laws differed from the concept of neutrality within the state. The state and its organs. Pico. in pure theories of law the objection of content bias of the laws is disregarded and only procedural fairness and equality of the parties in the legal process is considered.Sajo Neutrality Draft 14 controversial almost inevitably will make it impossible for administrators to avoid an inquiry into the content of broadcasting material. contributing to the depoliticization of the state. where the Constitution is presumed to affect government behavior only.” 24 Surprisingly. The same is true in Germany. the administration of justice and public administration are neutral. Rev.

It was not by accident that Kelsen argued in favor of constitutional courts only to the extent that these courts remain negative legislators. The neutral power cannot “annihilate” the other powers. solving partisan conflicts impartially. in his debate with Hans Kelsen. activism. however. a new institutional arrangement was developed to satisfy the needs outlined by Constant. 19-21. Neutrality here refers to the personnel composition of the state. Constitutional courts.) The neutral power. operate according to precedents and legal arguments. Looking at the political composition. To Schmitt. (Compare this with the concept of the French President as arbiter in the Constitution of the Fifth Republic. Constitutional courts. Nevertheless. Cours de politique constitutionnelle et collection des ouvrages publiés sur le gouvernement représentatif . Neutralization is the lack of domination. 1872. 27 Carl Schmitt used this approach to justify the use of power of his client. The opposite of neutrality is the active (political). however. Kelsen argued that the powers claimed by Schmitt to the President shall be granted to a Constitutional Court. its role is to preserve the other powers. Reichspresident Hindenburg. Paris. 28 Benjamin Constant. while the king is inviolable and his neutral power is non-political. performance of these courts (or their equivalent supreme courts) reveals that here neutrality is confused (deliberately) with juridicization. de Paris. Schmitt regrets that the state gives up its power to rule and dominate ( herrschen) once it accepts a neutral role. it will be discussed and handled in non-political terms of legal doctrine. When the parliamentary political conflict is brought to the constitutional court.27 The ministers (the executive) are an active power with responsibility. INALF.Reprod. certainly a logic alien to the idea of herrschen. even if they take sides or follow their own politics. 1961 . Constitutional courts are presented increasingly in the legal and public imagery as non-partisan entities bound only by the constitution. 28 In the second half of the 20th century. he is impartial. 3. this is simply the transfer of the crucial sphere of politics from one dimension to another – politics always retains its central position. An allegedly neutral power intervenes in the struggles of the political branches. above the “common condition. in politics only the relationship between friends and enemies matters. de l’éd. these courts contribute significantly to the appearance of neutralization. Guillaumin. To his mind. do not refrain from dictating legislation.2 The neutralization of the civil service The creation of a professional career civil service also contributes to the neutrality of the constitutional state.Sajo Neutrality Draft 15 . . Principes de politique.” remains uninvolved in the common agitation.

not moral reasons. and above partisan obligations. protection to civil servants. that is sine ira et studio. Certain life spheres are more resistant to political intervention. to the extent that it is a sum of the activities of the civil service. Civil service. 30 Practical government neutrality is related to the modern understanding of civil service. though a non-bureaucratic professionalism is certainly required to solve a number of social problems and to produce creatively. strictly public goal/public good-oriented) criteria of their appointment.. in the sense of freedom from the state. because of the neutral (non-political. Admittedly. civil servants are capable of following the letter of the law. Public employees are neutral. 30 The party affiliation of employees cannot be a concern in their continuing employment. the neutrality of government results in silence and non-partisan speech. J. Although public office can no longer be denied on the basis of political affiliation. The internal life of modern government has been neutralized in most respects for pragmatic. 31 McAuliffe v. Organizational and legal guarantees lend credibility to this claim : such guarantees were elaborately provided in the Weimar Constitutions. Ct. and hence act impartially and politically unbiased (organizational and personal interests aside). as was the case in the 19 th century. but rather to the party in power and to the government as such. and yet the Weimar civil service remained.decentralization. City of New Bedford. For them. may claim to be neutral. The civil service neutralization may mean today that political party membership for civil servants is prohibited.Sajo Neutrality Draft 16 which is made up of people who act as if they were neutral. where traditions and conditions are favorable. 1892) (per Holmes. the expression of political views in public employment may be restricted. The state. professional. i.31 The civil service is increasingly represented as being 29 I will not discuss the requirements of efficiency.). although not necessarily for liberal reasons. The civil servant appears to be free from personal subordination and loyalty to politicians. Through the denial of speech. These reasons29 include. therefore the government is neutral. . The .the neutralization of the civil service.the cult of expertise where expertise requires independent organizations.” non-party-partisan speakers. government and its organizations may emerge as “neutral. The neutral image of government is built upon the silence of civil servants in public and in particular political matters. and . among others: . 216 (Mass. 55 Mass. to a great extent. at least not at their workplace. in exchange they cannot have opinions. Civil servants are loyal not to one or another party. Civil servants are unbiased. carrier advancement and professional choices. loyal to the Emperor and his substitute (Hindenburg). Sup.e.

Limits to civil service neutrality. as in international (foreign) relations. on account of their visibility. 9. ECHR Judgment of 2 September 1998. would be likely to link a politically restricted post-holder in the eyes of the public . par. parallel decision-making centers. Centralized sovereign power is an image from Rousseau’s theory of popular will or Carl Schmitt’s decisionism. The democratic process and its partisanship still prevails in fundamental matters like budgetary debates. In many countries. 33 Case of Ahmed and Others v. many decisions are made at the local or intermediary level. there are a number of competing. Here a crucial element of European Court of Human Rights found such political rights restrictive prohibition necessary for European democratic societies (Ahmed.180. As quoted in the Case of Ahmed and Others v. even if such loyalty implies the implementation of partisan politics. ECHR Judgment of 2 September 1998. par.Sajo Neutrality Draft 17 impartial and non-partisan. it instead includes delegation and devolution. pluralism only functionally resembles government neutrality. Decentralization also leads to increased state neutrality. with a particular party political line. Reports 1998-VI. For the purposes of the present discussion. except in a few crucial cases. In the modern state. were held as imposing a minimum (i. for example. however. and multiculturalism add to the trend. a body which follows purely legal (neutralized) and professional considerations. 32 Report of the Widdecombe Committee (1986). In the modern state. . Bias is plural. . judicial review (and the consequential lack of finality). the content of applicable laws and cases of pure power politics. Rekvényi). public service was“ founded on a tradition of a permanent corps of politically neutral officers serving with equal commitment whatever party may be in political control. In the United Kingdom. Hence the state may speak with many voices and therefore. Of course.”33 The image of civil service's neutral loyalty encompasses the loyal execution of instructions of political leaders and the faithful execution of laws. 63. The United Kingdom. permissible) impairment on civil servants as long as participation was limited to “only those types of activity which. restricting political roles and advocacy. in the sense that there is no one authoritative biased voice. it is difficult to attribute to one or another voice full governmental authority. is partly unrelated to the above-mentioned factors of government neutrality. The depoliticization of public administration remains t uncomprehensive. The United Kingdom. 6. Reports 1998VI.” 32 The rules of conflicts of interest. . Decentralization is dictated by a variety of social needs. federalism. Decentralization.e. par. government and political power are less centralized. and because of decentralization..

Howard summarized the judicial trend that seems to prevail since the 1970s: “Justice is 34 Even in 1883." In the U. Not even judicial decisions satisfy the promise of neutrality of the "paragraph automaton. only ten per cent of public employees were career bureaucrats. as illustrated by the spoils system that (in altered forms) remains inherent in modern democracy. if the law cannot determine a civil servant’s decision. contrary to the promises of the rule of law. Such insulation. Belknap Press of Harvard University Press.) In the aftermath of WWII. Democracy remains an archenemy of neutrality in civil service. Further. state judges are subject to ordinary democratic power politics. though there arenew trends that might counter them. 1996. they will have all the neutrality of science and technology. allowing the civil servant to decide based on professional and expert consideration. most administrative decisions.” 35 Philip K. Public bodies and administrative organizations still maintain insulating effects. following the needs of interest groups. as they are elected according to political considerations. helps to avoid the partisan bias built into the law. After all. even if actual decisions are compromises that take into account the interests of other parties. Public sentiment required that even in law one should “respect people’s freedom to choose their own values.S. public decisions are biased and partisan. They thus must consider political and personal expectations if they wish to be reelected. while the rest remained political appointees. this will not render it a political or politically-biased choice per se. remain discretionary. 35 Sandel.34 Neutralization through professional civil service is further limited as.Sajo Neutrality Draft 18 political and even ideological bias may prevail even through the formally neutral activities of the civil service. 8. (It is not by accident that in the New Deal the representatives of scientific management in public administration opposed law-based restrictions which were openly held to be biased. to the extent decisions are based on technological or scientific considerations. Mass. In reality. These trends work against neutralization. especially those that affect communities in a substantive way. Such discretion is mildly tempered by professional expertise: interest group politics will be presented in neutral professional terms. in particular. Professionalism and impartiality offer neutrality. and later during the Vietnam War and the 1968 rebellions. Democracy’s Discontent Cambridge. therefore. a new anti-authoritarian neutralization emerged.. The civil servant who acts according the dictates of scientific management will be impartial and professional. . when the US federal public administration finally begun its professionalisation with the Peddleton Act.

It is relevant that independent agencies were originally designed to be exempt from executive control. U. Ballantine Books. churches. 40.S. Strauss.Sajo Neutrality Draft 19 neutral.Ct. they may also act as a buffer against the excesses of overreaching government. 863. See Humphrey’s Executor v. 38 Mark G. "The Place of Agencies in Government: Separation of Powers and the Fourth Branch.”38 36 37 Philip K. subject to political goals. “As Robert Nisbet and others have urged. Rev.’ Plessy v. This understanding differs markedly from the one voiced by the Council of Europe. 602 (1935). Yudof. See Peter L. . This form of neutralization relies on special techniques of organizing the public body. etc. in the name of the state)37. which were legitimated in terms of their expertise. which denies legislative oversight. 295 U. 3. 912-917 (1979). New York. Besides the legitimization arising from expertise and independence. these organizations and institutions satisfy the need for mediation between the distant state and society. . In complex societies. the importance of mediating institutions – families. therefore it is called organizational neutralization. . The Federal Trade Commission is one such creature. where experts are responsible for their own communicative sphere that performs a public function. It goes further than civil service where only civil servants are expected to operate neutrally. L. This ad hoc nature becomes even more obvious if one looks at the existing categorization in a comparative perspective. Note that the characterization of agencies as “executive” or “independent” follows ad hoc political decisions. Ferguson (dissenting opinion). This trend is rooted in the growth and cult of independent expert bodies. Howard." 84 colum. The government-created mediating institutions may serve similar goals . . 116 S.S. Contrary to institutional neutralization. the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens. .” 36 The Supreme Court of the United States is inclined to recognize neutrality as a fundamental legal value: “One century ago. – increases with the increasing scale of government institutions. many traditional governmental functions and spheres of governmental action were transferred to independent organizations. . or it is not justice. 573 (1984). . 1620). L. Rev. . “When Governments Speak: Toward a Theory of Government Expression and the First Amendment.3 Independent (Expert) Agencies State neutrality is increasingly provided by creating neutral (politically nonsubordinated) organizations within the public administration. those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake" (Romer v. And such mediating institutions not only serve the purposes of pluralism . Unheeded then. 2002 (2001). but public administration organizations remain politically controlled. Evans. the independent expert bodies (independent agencies) perform public functions (supported by government authority. The Collapse of the Common Good.” 57 Tex.

3. Generally the withdrawal of the state from certain public domains is determined by major performance failures. In this reading. 11 Cardozo Arts and Entertainment Law Journal. with one channel per major political party in Parliament. Although this paper does not address the reality of neutralization of the state. Indeed. such as mass education and the institutions of welfare.” Desmond Bell. Guilford Press. The actual solutions include quasi selfregulation of the concerned. 337. Jessop distinguishes between 'one nation' and 'two nation' hegemonic projects where ‘one nation’ strategies aim at an expansive hegemony in which the support of the entire population is mobilized through material concessions and symbolic rewards (as in ‘social imperialism’ and the ‘Keynesian welfare state’ projects). PSB can be seen as one of the many government instrumentalities.Sajo Neutrality Draft 20 Determining immune institutions or spheres of government neutrality is. 1996. Further. Loyalty to the state differs under these circumstances: it will be loyalty to a state that accommodates domination. PSB anticipated Keynesian policies and Fordist 'accumulation strategies' that Western European governments formally adopted after World War II.1 Broadcasting regulatory bodies Broadcasting regulation by independent regulatory agencies exemplify a relatively recent attempt to neutralize the state. left overwhelmingly to legislation that often follows a logic completely different from that of institutional neutrality. non-governmental bodies as decision-makers. hence the loyalty of the dominated towards the (neutral) state. and to a great extent indirect. in discussing organizations for a fair and independent media sector. … Although this 'one nation' project is primarily ideological. Public bureaucracies might resist the controlling interference of the political branch. however. 346-347 (1993).3. various institutional solutions guarantee the independent or otherwise neutral handling of broadcasting-related matters. The Corporate State and Broadcasting in Ireland: a National-Popular Program. in Ireland.40 and insulated independent governmental bodies. as in the case of Britain.' [Bob Jessop. Through these discourses and structures. New York. one should call attention to the possibility that such “neutrality” might serve non-partisan social domination or one that is not based directly on government support. press censorship is a good example. (The abolition of formal. PSB [Public Service Broadcasting] in Europe developed alongside the growing corporate state. Here. actors of the social sphere mounted sufficient resistance to government interference. Quite often politicians seek to avoid responsibility. 119. 39 This is done "officially" in order to avoid politicization. or because the public interest cannot be served well in a partisan manner. neutrality creates the emotional opportunity of non-exclusion. 98. Pennsylvania State University Press. subordinate classes are integrated into a political and cultural consensus forged in the long-term interests of the ruling classes of particular countries.) However. political partition. through which the capitalist state exercises its hegemony via what Bob Jessop has called a 'national-popular program. Consider the following explanation: “Commitment to public service modes of provision and high degrees of government regulation traditionally have characterized broadcasting policy in Europe. it may also have some material base in structures of political clientelism and corporate welfarism. the official expectation is that the bodies selected by the executive will not be subject to pressure from it nor will they be politically committed to the government of the 39 For a review of regulatory approaches see Wolfgang Hoffmann-Riem. 211] which he defines in terms of hegemonic projects. University Park. Regulating Media: The Licensing and Supervision of Broadcasting in Six Countries. 1990. Interestingly. these choices are not accidental. . this arrangement is advocated currently in Hungary by the opposition. State Theory: Putting the Capitalist State in its Place. 40 This was the case of the Italian public television (RAI). In other cases. as in Great Britain. … From the 1920s.

the apparently technical choice to open the airwaves to commercial or foreign broadcasters directly impacts the possibilities for government mind control. neutralization through independent regulatory agencies is one step away from institutional neutralization. they do directly affect economic interests. Doordarshan. The various models show historical responses to very different social and political settings. 365. Int’l & Comp. There remains little need for neutralization. even if they allow for alternative biased voices. where the media was not directly accessible to the political parties.Sajo Neutrality Draft 21 day. It is true that under ordinary circumstances these decisions are only indirectly political. Of course. neutralization (relying on different organizational solutions) became the norm. (Of course. the exclusion of certain voices. the Social Democrats could delay the operation of private channels and structure the media landscape by resisting cable and supporting satellites. that in principle. The enormous difficulties encountered in opening the market in India serves as on such example. Licensing offers a new opportunity for hidden political control. professionalism is less expected. even where there are independent regulatory agencies. but will rather follow strictly professional considerations. the choice regarding the applicable industrial standard is not neutral-technological. L. the two solutions represent a continuum where actual solutions overlap. and certainly subject to restrictions of administrative procedure and judicial 41 Even in Germany. Formally. privatization (in the sense of allowing private and international programs) did allow neutralization of the communicative sphere. Broadcasting might be left to selfregulation. Allegedly neutral antitrust (competition) regulation is one of the ways to influence private media politically. broadcasters depend on the incredibly sweeping power of the Federal Communications Commission (FCC). and opportunities of access. Broadcasting becomes socially respectable because of the obvious (though deliberately not perfectly successful) effort to keep it out of strict governmental control. 41) The same applies to increasing the number of available frequencies. including political and governmental taboos." 5 Cardozo J. A number of ways still allow the political establishment to influence the architecture of broadcasting. The industry defines broadcasting. But in the context of broadcasting and information transfer. The American understanding of broadcasting regulation is one of self-regulation. 42 Such decisions for privatization are neutralizations per se. "Public Service Broadcasting and the Impact of Globalization: A Short History. as the government is not directly present. . As privatization indicates. in Europe and Asia. economic interests are intimately associated with political interests. Recently. Further. Nevertheless. 42 See Nikhil Sinha. it seems that in this area. but it will reflect interest groups politics. In other models. except regarding bodies that deal with allegedly technical matters.

(1973).C. increasing impartiality as a professional expectation. s 3(h) of the Act stands as a firm congressional statement that broadcast licensees are not to be treated as common carriers. 94. and/or because the existing arrangements were politically satisfactory for the major political parties who could get sufficient effective access. perhaps because of the overwhelming power of the industry that could not tolerate it. Created under the spell of scientific management. * * * In this structure the Commission acts in essence as an ‘overseer. when the FCC was created. v. 43 CBS Inc. may do whatever it finds necessary. The FCC. 1934. 47 U. This arrangement makes the body less political than its formal mandate.’ but the initial and primary responsibility for fairness. though an independent one with unlimited mandate.”43 The judiciary upheld FCC regulations that required balanced (fair) access. Fairness (as a form of internal neutrality) remains the professional standard.S. Burger CJ. “as public convenience.)/ During the period of 1929-34. when the FCC abandoned its fairness rule. formal neutrality was not yet a major concern. Moreover.” to license. legal efforts to make fairness a legally-binding requirement failed as a constitutional requirement both in court in Congress.S.Sajo Neutrality Draft 22 review. supervise and regulate radio stations (Communication Act. However. however. which explicitly prohibits the Commission from interfering with the exercise of free speech over the broadcast frequencies. and objectivity rests with the licensee. obliged to accept whatever is tendered by members of the public. This role of the Government as an ‘overseer’ and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic ‘free agent’ call for a delicate balancing of competing interests. In Europe remains legally mandated: it is believed that “broadcasters shall ensure that news fairly present facts and encourages the free formation of opinions” (European Convention on Transfrontier Television). 412 U. the FCC was established as a bipartisan agency. though the regulatory procedures adopted by the Commission. is hardly a neutral institution given the clearly political appointment of commissioners. The neutralization was further reinforced by the attitude of the judiciary. created at a time when the industry was already well established as a powerful force that could not be disregarded. Committee . the Commission [declines] to command particular action because it fell within the area of journalistic discretion. allow for professional (industry) comments. . Democratic Nat. Both these provisions clearly manifest the intention of Congress to maintain a substantial measure of journalistic independence for the broadcast licensee. The built-in political bias was hardly ever used systematically for partisan politics. interest. The commission was. as formally determined by law. balance. § 303. “The historic aversion to censorship led Congress to enact s 326 of the Act. The assumption was that such enormous power would be used according to professional criteria. Congress pointedly refrained from divesting broadcasters of their control over the selection of voices. or necessity requires.

cultural bodies. 424 U. It is expected that the organization provides “sufficient assurance that all socially relevant interests would have the opportunity to express themselves” (First Television Case. They also accepted the fact that the mass medium should on no account fall under the control of any powerful social interest or interests. This kind of 'internal control' (Binnenkontrolle) of the broadcasters is designed to guarantee the balanced and diverse character-the 'internal pluralism' (Binnenpluralismus)--of their programming. (12 BVerfGE 205. namely the Constitutional Court. it is the legislator who defines the “socially relevant interests. intervention into the marketplace of ideas occurs within the context of the activities of presumably neutralized bodies. dictated by another neutral institution. this activity too is decentralized. 530. in the case of library commissions censoring books for the protection of the youth. broadcasting legislation and supervision is covered by the 'cultural sovereignty' (Kulturhoheit) of the constituent federal states (Länder) of the Federal Republic. accepted that broadcasting should be controlled in a way that safeguarded its independence from the state (the hallowed principle of Staatsferne. 527. (1998): “The accountability mechanisms for German public broadcasting are rather unique. 45 In Germany. primarily due to Nazi abuse of the government’s broadcasting monopoly for government propaganda. employers’ associations. It should be added that the fairness and pluralism that is required in Germany is.Sajo Neutrality Draft 23 The German model deliberately excludes government authorities from the operation of public broadcasting. churches. 260 (1961)). Kommers. Formally organized as corporations under public law (Anstalten des öffentlichen Rechts). The “socialization” of the media is justified as follows: Article 5 of the Constitution requires that this modern instrument of opinion formation should neither be at the mercy of the government nor of one single social group. which are therefore subject to structurally provided fairness. Such a level of neutralization is a historical accident of military occupation (an interesting source of neutrality. see the Mützenbacher case).” 46 In Germany. . They have been controlled by internal broadcasting councils (Rundfunkräte)--or. 46 public and private broadcasting are supervised 44 Such corporativism would be unacceptable on constitutional grounds in the United States. literally 'distance from the state').S.). The social pluralism approach applies to private broadcasters as well.g. The post-war German elites. immediately after the Second World War. 1st 406. The state in Germany only exercises a background regulatory role through the enactment and limited supervision of broadcasting laws. alongside directly political representatives. where the Constitution mandates that any officer “exercising significant authority pursuant to the laws of the United States” [Buckley v. by a television council (Fernsehrat). Though a broad selection of social groups (from trade unions to churches) are represented in the governing bodies of the channels. non-market media. too. first of all. "The Goal of Pluralism and the Ownership Rules for Private Broadcasting in Germany: Re-regulation or De-regulation?" 16 Cardozo Arts and Entertainment Law Journal. 45 Peter Humphreys.1. trade unions. They originated in the Western Allies’ policies. in the case of the ZDF. Needless to say.” (This selective corporativism 44 applies e. Germany’s public broadcasting institutions are classic examples of distinctly non-state. political parties and representatives of government (political branches) are prohibited from participating. there are a few important direct restrictions on government regarding speech. 126 (1976)] must be appointed by the President with the advice and consent of the Senate. Valeo. and so on. indeed).e. These internal regulatory bodies have each contained representatives of the country’s 'socially significant groups' (sozial relevante Gruppen): i. Yet.. Governmental agencies and political parties may not interfere in broadcasting. to ensure that broadcasting in (West) Germany should be decentralized and controlled pluralistically.

47 The Conseil supérieur de l’audiovisuel has nine members appointed to one six-year non-renewable terms. including all elected positions. Romanian Law on Radio and Television Broadcasting. Members are subject to strict conflict of interest rules. or of commitment of criminal offences. the European standard requires that the regulatory authority operate in an effective. though cohabitation and staggering renewals may render the political orientations somewhat balanced. The Law no. (2) "The members of the Council shall be warrantors of the public interest in the audio-visual domain of radio and television. 48 / May 21. political rigging of licensing.50 The neutralization means the guarantee not only of the financial independence of the organization but also of the personal independence of the members of the authority “so as to protect them against 47 48 The system goes back to loi du 30 septembre 1986. The political influence is clear. socially representative bodies. Accusations include violation of conflict of interest rules. and failure to intervene in the case of unfair political news (biased in favor of the ruling government). 49 Recommendation Rec(2000)23 of the Committee of Ministers (Council of Europe) to member states on the independence and functions of regulatory authorities for the broadcasting sector (Adopted by the Committee of Ministers on 20 December 2000 at the 735th meeting of the Ministers’ Deputies) 50 Considering that for this purpose. specially appointed independent regulatory authorities for the broadcasting sector. The CSA appoints the presidents of public broadcasting companies. independent government agency to guarantee neutralization of the broadcasting regulatory sphere. The legislature of the German Länder has the power to shape broadcasting by determining the social forces that may participate in the supervisory board. one-third of the members are renewed every three years. the European ideal is an independent broadcasting agency that is not responsible to any political branch. with expert knowledge in the area. A similar solution exists in Romania48 as well as in Poland. France represents the attempt to create an impartial. grants and supervises private licenses. independent and transparent manner with professional expertise. 25. and advises the government on legislation concerning the broadcasting sector.49 As is to be expected in any serious contemporary neutralization venture. None of these countries was spared major scandals regarding the activities of the Council. (7) The members of the National Council of Radio and Television shall be revoked by the appointing authority in case of infringement of the present law. 1992 Art. . Hungary. three by the President of the Senate and three by the President of the National Assembly." The Act is supposed to be replaced in the process of the EU accession. Notwithstanding these scandals and other obvious shortcomings.Sajo Neutrality Draft 24 by delegates of non-governmental. three of these members are appointed by the President. etc. have an important role to play within the framework of the law. Following the model of the Conseil constitutionnel. and they shall not represent the authority by which they had been appointed.

Interestingly. To illustrate the state’s attempt to satisfy the neutrality requirement. which is provided by regular reports and duly reasoned decisions open to review by the competent jurisdictions and made available to the public: “[Paragraph 26]: In order to protect the regulatory authorities’ independence. in particular by political forces or economic interests. As in the case of the media.3. in England. Report of the Council of Europe Expert Mission 5-6 February 2002. Such intervention must satisfy conditions of neutrality. or standards to review bureaucratic decisions shaping the public discourse. With respect to the legality of their activities. 51 It is quite telling that an Council of Europe expert group criticized the draft Romanian law. Central Banks This subsection will consider how organizational neutralization operates in one sphere of the economy. i.51 Accountability is granted through transparency. an independent expert commission. interests to interfere into these spheres. The regulations on responsibility and supervision of the regulatory authorities should be clearly defined in the laws applying to them. ex parte Bull and another [1995] 4 All ER 481. Although one should keep in mind that the judiciary has no mandate. it is judicially that the Radio Authority.e..” Nevertheless. . 52 53 R. One should add that this is no longer a centralized Prussian bureaucracy. the state has fundamental societal. The mandate to make such corrections was not granted to the winner of the democratic election but rather to a permanent body of government. or to nongovernmental agencies “representing” expertise and society. whilst at the same time making them accountable for their activities.Sajo Neutrality Draft 25 any interference. I refer to a relatively new phenomenon that emerged in the past two decades: the independence of central banks is a recent development in the process of state neutralization. the civil service. it is necessary that they should be supervised only in respect of the lawfulness of their activities. it is now subject to politicaldemocratic and judicial control.). which bring corporative elements into the complex situation. as well as partisan. though within limits (i. this supervision should be exercised a posteriori only. here we confront a social system that operates rather independently from the state. QB (Kennedy L.” 52 This alleged neutrality helps to satisfy aspirations of market correction.e. 53 3.” Dismissal is practically prohibited. desire. should be left with a large measure of discretion.2. v. much less in the areas of redistributive politics). and the correctness and transparency of their financial activities. J. Radio Authority. because the regulatory authority “is likely to have particular expertise in the field. which would submit the Broadcasting Council to parliamentary control to the extent that the repeated rejection of the council's annual report would give opportunity for parliamentary dissolution. or the activities of nongovernmental public bodies. Nevertheless.

One could say that German institutional neutralization was the result of deliberate constitutional design that was not triggered t by simple failure of politicians. This was resisted by institutional actors. especially in the EU accession countries. the concept of central banks as independent agencies is spreading around the world: 54 There were isolated special experiences (the US Federal Reserve in banking. that is. As Posen indicates. there was a systemic failure. (The Council was composed of politicians loyal to De Gaulle. The actual neutralization (and reversal) occurred once the institutional (formal) setting was present. the conditions for model distribution (model imitation) were set. In Germany. which often was originally only a new attempt of the political power holders to exercise control. at least they are insulated visa-vis the democratic process. "Central Bank Independence. Once these arrangements received legitimacy through increased independence. This begin probably around the late 1980s. rooted in legislation of the 1950s. parallel to the independent activities of the Bundesbank.) Allan Drazen55 argued recently that “… once one reflects the process of policymaking in a democracy. as happened with Adenauer’s attempt to create a government-controlled national television. the French Audiovisual Council seemed to serve the government's specific interest in privatization of electronic media. to exert more political (including interest group) influence than in a transparent democratic setting. but actually characterizes most policymaking in a democracy. Democracy. the Nazi regime that shaped public thought as an Urtrauma. and Dollarization. the BBC and various British broadcasting regulatory authorities." 5 Journal of Applied Economics. This is not to say that the political powers did not try to change these arrangements. insulation from popular pressure. partly through international organizations. as to broadcasting) to meet such requirements already before World World II. Of course. institutions we associate with democracies have been created specifically to address this conflict…. which was designed by De Gaulle as his personal cannon aimed at the legislative branch. and in principle. beginning in the nineteensixties. One way out is neutralization. ordinary political scandals were sufficient to move towards neutralization. 2 (2002). After WWII impartiality in institutional broadcasting impartiality emerged in Germany. hand-in-hand to some extent with that of impartiality in media regulation.) In the third stage. and to some extent parliamentary opposition. as is illustrated by Chancellor Kohl’s victory over the Bundesbank and the Council of Economic Advisors in the GDR Mark exchange case.54 (Kartellamt might be another example. Another example was the widespread impact of post-war inflation. Moreover. most policies are chosen by institutions with some degree of independence. successfully blames the political arrangements. in the media the systematic failure was Nazi propaganda. without a specific neutralization process.) 55 Allan Drazen. We further argue that the conflict between popular sovereignty and policymaker independence is not unique to monetary policy. the matter was one of simply following the model. Political 'failure' means constant delegitimizing scandals and non-performance where outsiders and the public. Here. a system established in 1913. and gaining reputation a decase later. and resulting in a less biased performance. To some extent. Overwhelming power politics considerations may still prevail against the independent institution. . partly through the decisions of the Constitutional Court. such insulation may also allow elected officials and government bureaucracies to exercise influence. This was the case with the French Constitutional Council.Sajo Neutrality Draft 26 the proliferation of the idea goes . (The Belorussian Bank scores very high on formal indicators of independence.) Likewise. In modern democracies. Kohl’s desire for the speedy reunification that promised his reelection prevailed. strongly independent monetary policy is not inconsistent with democratic control of policymaking.” Although such policy-making institutions are not necessarily fully neutralized in the sense of being exempt from political (power) influence.

”56 The independence and neutrality of the central bank is certainly not a development that is required by any traditional separation of powers doctrine of liberal constitutionalism. Although the ECB is a special." SSE/EFI Working Paper Series in Economics and Finance. contrary to a national bank." NBER Macroeconomics Annual 253.. "Declarations Are Not Enough: Financial Sector Sources of Central Bank Independence. as do some instances of IMF conditionality).g. the ideal of central banks as a neutral institution is primarily based on the example of the European Central Bank (ECB). and transparency alone has not checked the exercise of central bank discretion beyond what accountability would ideally bear. sense of well-being among the voters.hhs. 59 56 Adam Posen. 1995. Precommitment is necessary because otherwise “the incumbent party may engage in stimulative monetary policy in the period immediately before an election. in order to increase economic activity. Mass. and create a strong. Not only the former planned economies accepted the independent central bank model. in a democratic (vote-maximizing) system it is a necessary precommitment.Sajo Neutrality Draft 27 “The worldwide trends towards central bank independence has shown no signs of abating over recent years. it is not fully constitutionalized even in the former socialist countries where the formalization of such independence went perhaps further than elsewhere. Cambridge. and London. but even Japan . the Maastricht Treaty makes that necessity a legal requirement. The most credible political precommitments of the political elite pertain to the constitution. perhaps extreme case of central bank independence. On the other hand. Credibility. and seems itself to be independent of whether or not countries adopt inflation targeting or other monetary transparency measure… Independent central banks have gained in stature around the globe as they have delivered low inflation. this revenue could have been spent in a rather discretionary way by the cabinet. in Japan).57 One could say that such neutralization contradicts the traditional doctrine of parliamentary sovereignty in financial matters.e. In a sense. Further. 58 Geoffrey P.”58 (The Hungarian government used a variation of this approach that systematically and deliberately underestimated future inflation. as its neutrality is enhanced by an international institutional vacuum. Few legislative powers have been enacted to keep up with this trend. Stable or permanent political precommitments are all considered contracts.pdf. Miller. Miller’s argument (see below). The independence of a price-level controlling central bank imposes a certain limit on the revenue raising and spending power of the state. “An Interest-Group Theory Of Central Bank Independence. the revenues therefore were higher. and benefited from the erosion of support for elected officials’ economic authority (e. the ECB is a special case. raise employment. as follows implicitly from Geoffrey P. whether independence of the central bank figures in the text of the constitution) is purely technical. 59 Of course. 20 (1995). constitutional transfer of authority is discussed in terms of "delegation contract.) In this paper. Central Bank Strategy. and Independence: Theory and Evidence.. the mutual mistrust among the member states resulted in unchecked powers of the ECB. this difference (i. if temporary. "Constitutions and Central Bank Independence: An Objection to McCallum's Second Fallacy." See Paolo Giordani Giancarlo Spagnolo. 57 In the parlance of economists. MIT Press. 436-7 (1998).” 27 Journal of Legal Studies 433. No 426 (2001) http://swopec.se/hastef/papers/hastef0426. See further Alex Cukierman. been perceived as necessary (in the EU and the accession countries. it is undeniable that the last two decades have seen a general movement towards the independence of the central bank. In fact. there is simply no available institution that could have exercised governmental influence.

That allows politicians to factor in other economic considerations (the considerations of ordinary interest politics). and the Reserve Bank of Australia. by the Bank of England (post-1997 reform). financial autonomy. "The Democratic Accountability of the European Central Bank: A Comment on Two Fairy-tales." 38 Journal of Common Market Studies 393. Beyond the issue of target setting by elected officials. terms of office and procedures governing dismissal of the board of the bank. The decision-making is based solely on professional criteria within the neutral. . like governmental representation in the governing body of the central bank. One could say that the fullest recognition (and consequently the largest autonomy) is granted to the European Central Bank.W.) “[P]ersonnel independence refers to the influence that government has in appointment procedures. of course. The decisions of the central bank are presented as purely professional. The central bank's financial independence means that the government cannot finance its expenditure through credits (other than through the bank). there seems to be some basic consensus in the economic literature (and increasingly in light of comparative legislation) regarding essential features for central bank independence. especially if it has full authority over both goals and means. 60 Jakob de Haan and Sylvester C. Various criteria are relevant here. one possible model. (Such goals are preeminently price stability. “Policy independence is related to the room for maneuver given to the central bank in the formulation and execution of monetary policy. 394-395 (2000).” 60 Though in terms of appointment the central bank is not fully depoliticized. among others. the Swedish Riksbank. These features generally include independence in personal matters.” It is somewhat exceptional that the Governor of the Reserve Bank of New Zealand can be dismissed if he fails to perform adequately the policy targets agreed between him and the Minister of Finance. (The similarities with broadcasting regulation are remarkable. as if the means or even goals would be taken for granted or at least subject only to professional disagreements. Eijffinger. the central bank's policy-making power may considerably depart from the rest of the political system. as the executive determination of the target will be seen as the activity of the independent agency. the formal professional requirements (and perhaps informal pressures coming from the financial (banking) community reduce the political element. In this case.Sajo Neutrality Draft 28 The ECB is. the neutralization facilitates an easier disguise of ordinary politics. and policy. appointment procedures. statutorily-defined goals of the central bank. and England moved in this direction in 1997. The alternative is represented. the medium term inflation target is (still) set by politicians. the Bank of Canada.) In reality. an allegedly "objective" expectation. Here.

like the statements and targets of the board of directors. 1979. Are executives better off? Unlikely.s own elected representatives and accountable civil servants who are “here” face-to-face. The idea that internal divisions be made public is in line with what happens in common law courts and most continental constitutional courts. as they control parliaments in any case. Why would member state politicians agree to relinquish powers to a body that is allegedly independent of (most of) them . In other words. and perhaps even the current level of integration. which. decisions should requireexplanation. including a lack of accountability (as calling to accounts is presented as ex-post interference or preemptive action). in fact transparency does not seem to have much effect on it. Transparency is. the appointment to the governing bodies is only very remotely connected to the democratic process. a very poor proxy for accountability. where the democratic deficit of the ECB is even more pronounced than in the case of other institutions. might be seen as puzzle of neutralization. Information. as amended effective February 26. 62 Alternatively. to the extent that there is appeal. and one cannot expect that this will be seen as a source of legitimacy enhancing neutrality. Further. The standard argument is that tdisclosure of such division diminishes its authority. the Bank of Japan publishes board votes. That decisions in Bruxelles are also subject to such interest politics is less known.S. 63 Since April 1998. as there are no efficient EU institutions to qualify as legislation. On the other hand. Why does the public acquiesce? Perhaps because citizens feel that they already lack power. Continental regular courts hardly ever publish divisions behind the judicial decision. though not subject to further discussion. understandably. section 552b. It takes much neutralizing (by scholarly writing) to reshape these divisions into doctrinal and . Of course. satisfies a specific expectation of accountability: to account is to explain. minutes and official forecasts. known as the Government in the Sunshine Act. As to the Federal Open Market Committeee. Transparency is merely a channeling of information that to some extent may help the bank to guide market behavior through signs other than the interest rate. the European Court of Justice and the Italian Constitutional Court are important exceptions. its transparency is provided at least since 1979: 12 CFR 261b. as decisions are taken elsewhere. of the U. Such conditions call for transparency.61 The ECB has no parliamentary or governmental control. at the very least (for example. 63 It 61 Any additional integration at the European level. One may even suggest that voting divisions (and perhaps separate opinions) of the central bank's board of governors be published. One may trust nonaccountable second-rate bureaucrats in Bruxelles more than one. it will not result in any traditional form of external control that would undermine the independence and resulting neutrality of central banking. however. Code. is disclosed to allow market actors to mimic the bank's future behavior. This concern is aggravated in the case of the European Union. keeping meetings of the Federal Reserve Board accessible to the public). The French Conseil constitutionnel. it is more industry-wide interest politics that prevails there rather than that of local monopolists and politicians interested in vote maximizing and direct support of interest groups expecting some kind of quid pro quo. to hope that justice speaks with one voice is illusionary. Certainly they are less accountable to public opinion.Sajo Neutrality Draft 29 The independence of the central banks gives rise to the standard concern of accountability. Materials since 1996 are available online. as these latter are subject to interest politics.) Institutional neutrality and integrity are assumed to require non-interference. 62 The Board conducts its meetings in compliance with title 5. it is true that visible divisions within constitutional and supreme courts are often interpreted as political.

the banking and financial community) is a special problam that cannot be explained in terms of general loyalty to one’s state or political community. however. op. that is special. instead. by the political illoyalty of the supreme justices. If there were alternatives other than the decision taken. 65 Drazen. they contribute to the neutralization through independence.org/docs/wrkpap/pdf/148/pdf p. as David A. a clear commitment to targets increases the possibility for oversight. In reality. legitimate. 148. however. Adam S. It is this characteristic. Trade unionists (labor representatives) would probably take a very different view on the proper policy. there will be an "ability of the different interest groups to agree. however. that transparency might be counterproductive. the ease of concurring in “disinterested” monetary policy. It is this second aspect. http://www. Posen adds. then the bank's actions are not necessarily a professionally uncontested and. This stylistic exercise is facilitated. a different model of neutralization that is exemplified by science. Here. does not mean that they inherently must be or that they in fact have been so precedential differences. November 1995. this kind of legitimacy argument is not made. we near the selfregulation of the ‘life sphere’. the regional Federal Reserve Bank presidents who serve on the Federal Open Market Committee are appointed by the board of directors. 64 Note that though Federal Reserve Governors are appointed by the president and confirmed by Congress.Sajo Neutrality Draft 30 is argued. 66 David A. that “the theoretical prospect that central banks might be unduly constrained by explicit inflation targets or other forms of disclosure. which explains why societies are willing to turn over monetary policy to an independent authority…”65 In reality. Levy argues. If policymakers were somehow able to constrain themselves to choose monetary policy always for the common good. But the assumption of expert agreement64 is a central one in justifying the independence of central banks: “[W]what makes monetary policy different is …the ability of different interest groups to agree on what monetary policy that is not short-sighted would look like. or a lack of loyalty from the beginning (the appointee being a simple opportunist). It must be added that though this is a possible model. Of course. therefore. Levy." Loyalty to social subsystems (as a result of the interaction of those involved: here." Neutralization once again presupposes effective selection of "interest groups.levy. Such a rule-oriented system becomes allegedly less flexible in responding to economic events. however. “monetary policy formulation is far from scientific and objective.8. To the extent that one can take this statement to be characteristic of the economist and economic policymaking community. I argue..cit.”66 In any case. it is not the one that became predominant in contemporary central bank regulation. who tend to break with those who appointed them. Whatever the motives. This might have to do with aggrandizement . 5. But they are excluded from policymaking. . "Does an Independent Central Bank Violate Democracy?" Working Paper No. p. there would be agreement: on the problem of inflationary bias [etc]. or with the nature of interaction within the new organization. Once the policy-making constituency is determined on the basis of homogenizing professional criteria. as it would disclose internal divisions (and that therefore voting should not be disclosed). it is easy to see that the same exclusionary professionalism serves as the basis of neutrality. the loss of control. such disclosure undermines credibility based on the myth of professionalism. secrecy is justified by the danger that the availability of information would diminish the impact of the bank’s measure. who are largely the choice of bankers (?).

the failure of politicians. etc. 434.” 68 Politicians follow short-term interests. op. are highly problematic). op. although political (partisan) bias is not among these uncertainties. and therefore intuitively. their time span determined by reelection (their interest to save the stability of their monetary assets is secondary to the reelection interest). cit. like with primary education. everyone should accept it. poverty alleviation. Such shared need (if it really exists) was present throughout in history. like fairness in income. which are only disrupted by political partisanship and external considerations (including conflicting economic and social goals. economic growth.the belief that the matter (price control) can be handled according to professional canons (see Drazen). It is somewhat naïve to say that there is a vested social interest in keeping inflation under control. 67 68 69 Posen.the imitation/imposition of the "neutral solution" in an international system (meaning that the conditions for neutralization do not have to actually exist in every political system. Posen. and resulting distrust of such politicians by powerful economic interest groups. 17. Posen’s summary regarding the emergence of independent central banks contains many of the elements we have identified so far for neutralization: . too. Only recently (through globalization) did external banking interest emerged powerful enough to counter local populism efficiently by use of constraint. “Compelling as it may be. The failure of politicians. cit. op. . Posen 69 (who Miller quotes and supports to some extent) argues that the financial community’s special interests explain the acceptance of price stability through the control of a neutral institution. . but it did not emerge like the acceptance of the need of public education or public roads (which. insufficiently explains the resignation of political power. cit. IMF and EU conditionalities cannot explain the endogenous emergence of central bank independence. the normative justification for independent central banks as inflation control mechanisms does not explain why independent central banks are created in the first place. that low inflation (price stability) is a quintessential public interest shared by all.”67 Posen’s summary of findings on show that the nature of central bank decisions are far from guided by certainty. where it occurs). Short-term electoral interest very often pushes towards inflationary politics. . Miller.). however.Sajo Neutrality Draft 31 constrained.

pdf. the profession staffs its own regulatory body: the rules of the professionals become neutral professionalism per se. in which the monetary system becomes self-reliant because it is too complex to be guided externally. March 2001. “…Maier et al. the empirical evidence that the financial sector is inherently inflation averse is not compelling. Though they do not make this argument.Sajo Neutrality Draft 32 The personnel penetration of the central bank by interest group staff (see also the composition of the US Open Market Committee. University of Basel. However. if they indeed exist. For instance.edu:8089/eps/mac/papers/0103/0103006. The main source of bureaucratic resistance to establish an independent agency might therefore be bypassed. it is not obvious that low inflation rates are always in the interest of the financial sector." WWZ-Discussion Paper 01/03. First. given the ministerial backing. 17 http://econwpa. One can always rely on Luhmann’s theory of system differentiation. "Do We Really Need Central Bank Independence? A Critical Reexamination. it is not clear why the strictly political system actually accepts such developments. (2000) show the Bundesbank’s monetary policy was influenced by financial sector pressure.” Ibid. it can be interpreted as supporting Posen’s theory. the increase in nominal interest rates as a result of higher inflation may mask a larger spread applied by banks. One could add in support of Posen’s approach that it obviously has all the support public choice theory intuitively may offer. Further. who generally comes from this very same interest group. this willingness and advocacy is not without exceptions.”70 Why should governments (politicians) allow and even push towards the independence of the central bank? (Again. A number of explanations have been offered. Governments may use various threats to force the banks to accept the government’s position. “[t]here are a number of problems related to Posen’s approach. After all. Here.wustl. Second. I am not aware of convincing data on what makes (this part of) the monetary system self-reliant. In more pragmatic terms: the negotiating partner of the banking groups is usually the Minister of Finance. academia or the press. the government will not be isolated or exempted from criticism if economic decisions are shared . and the independence in the statutes is not always accompanied with full respect. like again in science. invalidating even the "avoidance of criticism" argument. 70 Bernd Hayo and Carsten Hefeker.) Yet it remains unclear why politicians and the political branches agree to relinquish their power. above) brings the central bank model closer to the self-regulating neutral sphere model. .

as statutes did not exist at that time. although. services. Like the judiciary.cit. ex ante. the risk of inflation will not reduce the amount that the interest group obtaining the deal is willing to pay the politician for future benefits.) because of the price stability commitment. "The Independent Judiciary in an Interest-Group Perspective. it appears that the question of the determinants of central bank independence can be answered. can interpret statutes in a way that reliably enforces political deals made by interest groups during the legislative process. campaign contributions. namely] “political support. 72 73 Miller op. and therefore the parties to the original deal (the private sector and the politicians) are willing to enter into longer-term arrangements. etc. Judges are more credible enforcers of political deals than members of the legislature because the latter will always be tempted to undo the ex post. because impartial judges will tend to construe statutes in accordance with the original legislative understanding.than the present payment argument makes less sense. Posner. the central bank is placed outside the direct play of political forces. being largely free from partisan political pressure. quasi constitutional precommitment by politicians “ would be in the interest of politicians. at least in part. p.” 72 One could object to the comparison that judicial impartiality historically emerged as a need among parties. Given this comparison. cit. loans. they prefer to capitalize their deals and obtain payment for future benefits in the present. it can never be totally insulated from politics.” “The role of an independent central bank in the economic system is in many ways analogous to the role of an independent judiciary in a legal system. like the judiciary. . 71 “Landes and Posner argue that the independent judiciary benefits political interest groups because judges. Miller believes that an anti-inflationary. 435. Because politicians have short time horizons.”73 If "payment" enhances the chance for reelection . except if it is actual payment means corrupt bribes. If an official cannot be reelected if he cannot mobilize populist measures (public spending. by analogy to that of judicial independence. given the fact that they may not be reelected. 450 Miller op. Landes & Richard A. With an independent central bank in place.” [The payment to which Miller refers is rent or its equivalent. and norms did not result from interest deals to be credibly enforced.Sajo Neutrality Draft 33 Miller offers a theory based on a public choice explanation of judicial independence as understood by William Landes and Richard Posner. because. and was thus unrelated to the application of statutes. p. etc. it is not clear what kind of specific (even though tacit) deals are possibly renegotiated. It is in the interest of the interest groups and the politicians alike to maintain an independent judiciary. 875 (1975)." 18 J. they get compensated in the form of larger payments for future deals. on this view. Law & Econ. he would need to maximize returns 71 William M. Further. while they give up control over monetary policy. The generally accepted purpose for placing the judiciary outside the arena of day-to-day politics--to guarantee an impartial interpretation of the law that is not swayed by short-term thinking or by political pressure--is quite analogous to the generally understood purpose for establishing an independent central bank--to place the conduct of monetary policy in the hands of an institution with a long time horizon that is not subject to short-term political influence.

of course.cfm/000730301. Hayo & Hafeker op. (See the case of the U.FRG government conflict. people’s trust will increase in the organization. though there is some evidence that in a stable. These historical accidents shaped the culture of the country: in some places. a culture of inflation was established. there is little inflation). Geoffrey P. reputation brings reputation and trust for the following reason: “Behaviorally. Liberalization and Inflation in Transition Economies . it is unthinkable to change it. given such recognition. Secondly. tell us nothing about causality. cit. First. once the model became accepted (partly in light 74 75 74 Hayo and Hefeker discuss a “historical feedback interpretation. the Minister of Justice resisted the independence efforts of the Court and political parties had a long stalemate on the issue. 76 it was ready for "spillover": where there was very high inflation (or some other major economic difficulty. argue that these kind of findings. 75 Special interests and their own institutional interests. assuming their validity. Miller and Bilin Neyapti. Once the model established itself. hence they compromised and learned how to minimize conflicts with the Court. the more trusting an individual is the lower the personal investment she will make in learning about the trustworthiness of the . even leading perhaps to popular support in a power struggle that the organization accidentally conducts against the political government.Sajo Neutrality Draft 34 during his tenure in office." it follows that the autonomous operations of an institution are recognized as conventions.pdf?abstractid=237066.. "A State Within a State? An Event Study on the Bundesbank. op. opponents might be co-opted or give up (move away). If the institution performs well (i.com/sol3/delivery.. (Such foreign recognition further increases domestic credibility).” Hayo and Hefeker. Federal Reserve – as long as it performs relatively well. Such culture.S.ssrn. The “establishment” of the German Constitutional Court in the 1950s might offer a good opportunity for the empirical study of these phenomena. This caricature does not help in understanding the politicians’ interests in establishing the otherwise rational precommitment. 76 The "establishment" concerned the traditionally low inflation in post-WWII Germany. attributed to the independent policies of the Bundesbank. endorsed by the success of the institution. 17-39 (1999) on the Bundesbank . 77 I assume that there is a snowball effect of institutional credibility once it has established itself successfully. 19-2000 (2000) http://papers. but once the culture has shaped an institution. the appointment stalemate did not serve the reputational interests of politicians. the institutional solution may survive the culture. See Helge Berger and Jakob de Haan. 17. after initial resistance. as in Japan)." Scottish Journal of Political Economy 46. Foerder Institute for Economic Research Working Paper No. post-WWII inflation in Germany) created a need for institutions that could move away from the executive. cit. My assumption is that historical (Burkeian) incrementalism might offer an answer: historical accidents (the Great Depression." Tel Aviv University. liberalized economy the independence of the bank is positively correlated with low inflation (Alex Cukierman. might change over time. the matter is debated. became sufficiently strong to maintain and develop the institution into an independent one. As to professional corroboration. the expected reaction of the average politician was to copy the existing institutional solution that had already gained a reputation of credibility elsewhere. changes of the relevant set of rules become difficult.e. In a "culture of law.An International Perspective.77 Finally.) The full formal recognition of independence came only later. At the beginning. "Central Bank Reform.

2001 http://econwpa. in particular.Sajo Neutrality Draft 35 of the positive performance evidence). a function of past behavior and performance and legal authority) and their reputation for competence. international institutions with strong leverage (as in country bail-out situations. The EU’s imposition is certainly total. the loan conditionalities in the 1991 Argentina crisis) imposed the model matter-of-factly. argue that alternative monetary policy design instruments are available. on the other). 532-568 (2000). statutory indexing. 334.80 There are also alternatives based in private law based and.pdf. expressing her trust.org/0402halevi. the opposite view prevailed. This understanding is in line with Keynes' (General Theory) understanding of efficient central banking.monthlyreview. Once one (including politicians) has accepted that the institution works. "Reflections on the Current Fashion for Central Bank Independence.g. Neither elected politicians nor unelected bankers should be trusted with money: “money is too important to be left to the central bankers. 81 *** trusted and in monitoring and enforcing his compliance in a cooperative venture. 81 Hayo & Hefeker op. "Should There Be An Independent Monetary Authority?. 11 (2002 April) http://www. supported by strong commercial banks and the profession. see e.79 What explains the success of neutralization is once again rooted in an institutional inertia that results from limited interaction among the players (the political branches on the one hand and the central bank. See Joseph Halevi.edu:8089/eps/mac/papers/0108/0108004. who argued that the constitutional rule regarding monetary policy should be that the definition of the price level and interest rate should be left to the markets.” Margaret Levy. which affects all (as the nominal inflation remains and therefore all the related inconveniences would impact voters) and therefore is politically non-viable. Though if some of the more cynical public choice theories are correct. politicians do not have to relinquish their control. The power of central bankers to guide financial markets depends on the credibility of their actions (in my mind. But indexing is seen as less efficient as a precommitment (it is easier to disregard) and it limits the power of politicians to extract rent." 53 The Monthly Review.” Given the success of special interest to hide successfully behind expertise. 80 It was Milton Friedman. it is difficult for the person who made the public statement to disregard such reliance. the less investment there will be in learning about it. Miller indicates that independence is not the only credible option for precommitment. "On Exogenous Money and Bank Behaviour: the Pandora’s Box Kept Shut in Keynes’ Theory of Liquidity Preference?" 7 European Journal of the History of Economic Thought 4. . are theoretically superior. 78 Perhaps in Eastern Europe the IMF-imposed "conditionalities" were probably less demanding than those imposed on Argentina." Working Paper No. "The Argentine Crisis. 79 See Bibow. Cognitive dissonance reduction might contribute to it too: once one (and in paricular political actors publicly) makes a favorable statement. cit. and were successfully adopted.wustl. 78 Some economists would support such approach." quoted in Jörg Bibow. Further. this has higher transaction costs.htm. In this case. the neutralization of monetary policy through central banks is just a way to allow financial market actors to prevail through their informal power to influence central bankers.

or in other words "imposed neutrality. product quality standards. environmental standards. EU officials will retain considerable discretion in drawing the distinction between permissible and . as indicated by Stephen Holmes: “Accession means that Western Europe is exporting its own health and safety standards. as the history of the post-communist states over the last 12 years indicates. However. The second instance relates to the neutrality of secret services. which might be subsumed under the heading of civil service neutralization or even under the heading of independent expert agencies. here I would like to refer only to two instances that might be particularly important in Eastern Europe today.) Here.Sajo Neutrality Draft 36 An Excursus concerning “Other” Phenomena of Neutralization. but in fact work prejudicially to favor West European producers. of Particular Importance for Loyalty in Transition Countries As one cannot offer in these pages a fully comprehensive review of neutralization phenomena. such neutral decisions are created through delegated legislation. and auditing standards to Eastern Europe. The first is the neutrality of international organizations that define domestic arrangements. even the European Central Bank exemplifies this trend. their ambivalence may undermine the neutralization attempt of the post-totalitarian state. and thus appear to be neutral in the sense of natural disaster or God’s non-capricious punishment. I instead would like to remind of the bias of neutrality.) Though such neutralization is present in many areas of life -. but who are already substantially in compliance." Quite often. Even after accession. who not only have greater access to the kind of credit needed to make the necessary investments.it is of particular relevance today for the EU accession countries. All of these may look neutral on their face. The rules of the legal system are not presented as the result of (domestic) power (democratic) politics. (Such assumption of neutrality is certainly acceptable from the perspective of domestic actors: none of them is involved. where political actors cannot agree but instead attempt to save face by delegating the substantive decision to an international expert body not subject to national state interests. neutrality originates from the allegedly neutral position of the distant regulator. On the neutrality of imposed rules The EU accession process of Eastern European countries illustrates a new form of neutrality. These rules are not difficult compromises that have been worked out among interest groups. As the issue of democratic deficit has arisen too often.and increasingly crucial in globalization -. (To some extent.

In Hungary as well as Poland. Only in the summer of 2002 was a law enacted that prohibited the employment of agents who served under communism. Spycatcher) (see further the involvement of the Italian services in the Gelli conspiracy and the 82 83 Stephen Holmes. the GDR secret service was allegedly eliminated. calculated to shift unemployment from west to east. or at least these scandals were managed very well with the complicity of the press. with two sets of member states operating under two sets of rules. the executive oversight. and public rules prohibit the political involvement of the services and servicemen. Even the Soviet communists learned (the hard way) that the secret services have to be "neutralized". In a democracy based on competitive politics. that is. The Polish services were involved in major political scandals. where political parties take turns in power. And what strong political constituencies or coalitions will prevent them from tolerating West European subsidies while outlawing East European ones? Such a biased practice. . No such rule was ever even contemplated in Hungary. It is argued that the Soviet secret services took over the state along (?) with Putin. My favorite examples are FBI’s Hoover spying on and destroying his personal enemies (or people whom he did not like). and at least one scholarly study argues that it continues to serve communist or private interests. and (at least in Hungary) the actual control. 4-5. only the political police (which spied on citizens) was allegedly dissolved as an organization. It is unlikely that the Slovak service was cleansed to the extent of the Czech (though it must have been reorganized).”82 *** Secret services Secret police and secret services (I will not distinguish the two) present a particularly interesting instance of state neutralization and trustbuilding. the services entered ordinary crime and encountered major political scandals.Sajo Neutrality Draft 37 impermissible subsidies. In principle. the services' past record in democracies is not overly convincing. with the full support of all the political parties both in power and in opposition. 83 This neutralization is quite interesting as it concerns the part of the state that is closest to arcana imperii. However. Further. "A European Doppelstaat?." Manuscript on file with the author. would bear out the grim prediction of post-enlargement favoritism inside the EU. Ironically. Nevertheless. The Hungarian services. one should probably study these issues in the context of the post-communist transition. The same might be basically true in the case of the Czech Republic. bipartisan (or multiparty) parliamentary committees exercise oversight. they cannot serve a specific person or interest within the state. and it is clear that it served the political aims of Meciar with unscrupulous means. To the extent that secret services trust-building and loyalty are really relevant in the study of public loyalty. is totally politicized: every election brings a new supervisory minister and new directors to the services. it is far clearer that it is mutually advantageous not to use the secret services against each other. The services (and the army) allegedly serve the integrity of the state in the purest sense. MI5 spying on the elected and democratically committed Prime Minister of Great Britain (see Peter Wright. managed to keep a low profile and never got involved in major political scandals. The law was vetoed on constitutional grounds (employment discrimination) by the president (a former member of the communist party) and at the extraordinary session of the Slovak Parliament the government could not mobilize enough votes to overrule the veto. there are important variations between the former socialist countries: in Germany.

Sajo Neutrality Draft 38 blowing up of the Greenpeace ship in New Zealand. Here we have a rather paradoxical situation of institutional trust and trustworthiness. or at least in terms of consistency-based predictability).using the return of the socialists to power -. substantive information is also suppressed. if they would feel that their identity might be revealed at some time. This argument is also made in the context of central banks but only before actions are taken (and some level of signaling ex ante. but in principle even such factual successes will remain unknown Evidence from leaks are unconvincing. There is a fundamental irony in the use of loyalty in the services. The argument made in favor of non-transparency is that of professional requirements. This – according to the justification of the services -. A few months earlier in Poland. which complained that the possibility of disclosure would have an immediate deterrent effect on “applicants” to the service. In a rule of law system. Allegedly the services protect their sources to the end. the total secrecy and complete lack of insight and control is allegedly quintessential.is necessary to preserve the loyalty of their collaborators. The services claim (demand?) life-long loyalty from their employees.managed to change the law regarding the transparency of the past history of politicians. courtesy of French services). the loss of external control derives from the nature of the services. at least in the form of judicial or parliamentary rubberstamp). (Here. In the case of secret services. This turns eternal secrecy and operational autonomy into a precondition for institutional success. The only indication of their expert performance is that you don’t know about it. or as they like to present the nature of their work. the services -. the Hungarian services were confronted with the need for transparency with regard to agents (though not activities) during the period of communism. these matters are increasingly subject to external authorization. In other words. secrecy is not about secret surveillance and covert operations. The argument is the same as the one made for total secrecy: this is the only way to grant full protection. But in the name of protecting sources. or bring down a foreign regime. the services do take actions against politicians on a partisan basis and become involved in anti-state activities and terrorism. leaving the impression that a fortunate event is . Recently. Is the allegedly insular and autonomous service to be trusted? Is it to be trusted for its "expertise"? But the only specific expertise they have is that they gather and keep information secretly. One could say that this is the consequence of neutralization: it shows how far an institution may go in following its internal interests and convictions. The services embarked on an extremely successful public campaign. (Occasionally they may prevent an attempted terrorist act.

government neutrality may be satisfied sometimes by impartiality. it matters to what extent the state is identified with its services. on non-interference -. In other instances. Even if the services maintain their required neutrality.) How might all this factor in into loyalty to the state? Of course. this neutrality will impact differently on the public. 84 What is considered to be a neutral institution will not necessarily yield neutral results. most instances of neutrality emerge in situations that differ from that of the judge. sometimes it requires equality of chance (e.) neutrality centers on this ideal. op. 4. After all. though the 84 “[N]eutrality itself is far from a straightforward concept. 145.Sajo Neutrality Draft 39 claimed ex post to improve the reputation of the service. as they tend to use parallel services that check on each other. volcanoes) and quite often believe them to bebenevolent. however. The judge stands above the parties. Political institutions. indeed. neutrality will follow. etc. (Dictatorships are generally more suspicious. .g. and in principle. However. the prevailing thin concept of (organizational. the state is not above the strife. cit. Normative and Empirical Concepts of Neutrality Neutrality is neither self-explanatory nor self-evident.) If political institutions were like humans. structural.g. Certainly the recent debate has shown that it is not particularly amenable to uncontroversial logical analysis. in principle. Neutrality is a highly problematic and somewhat vague concept. the uncertainty generated by an extremely powerful entity would yield trust: the powerless do not have alternatives and pessimism does not result in a better strategy to cope with uncertainty.” Waldron. And yet political bodies nearly unconditionally trust (pretend to trust) the services and their information (as well as lack of information). Once state power is identified or at least closely associated with secret police powers the standard assumptions of political loyalty that are made on the basis of the impact of democracy or even state-performance will not work. Some models of neutrality are based. has no stake in the decision he renders. In practical terms. among parties in elections). Humans tend to venerate unpredictable irresistible forces (e. What may seem neutral to some will be considered biased by others. Indeed. the services do depend on appropriations. The model of judicial impartiality is the basis of some expectations of neutrality. it may also imply non-interference (laissez faire).a very special form of impartiality. Shortcomings of State Neutralization 4. are not powerless.. the services are under civilian control and under the control of political bodies. assuming that once the structural preconditions of impartiality are satisfied.1. however.

it is related to the idea of a State that does not make distinctions between citizens according to their so-called ‘racial’ belonging (the US idea of a ‘color-blind Constitution’). Guy Haarscher. Secondly. using a dominant. integrity and procedural fairness. Neutrality depends on the categories applied. First. 86 85 86 János Kis. it means that the State is not part of the ongoing debate in pluralist societies between different conceptions of the good life. language). and not only the procedure. is best served by following professional. Sometimes expectations of the neutral performance of one state body fails because the expectations are based on a different model of neutrality.htm . denying their way-of-life choices and. Now the word ‘"neutrality" must be understood at least in the following contexts. Further. sometimes official. And fourthly. sometimes the institution cannot simply deliver its promises. This points to meritocracy." 9th Annual Conference on The Individual vs the State – Institutional Independence and Integrity. The thick concept of neutrality assumes that decisions and perhaps. However. a dominant class. the consequences of decisions. it implies that the State must not be biased in favor of an ethnic group (often the majority group.hu/legal/Haarscher. the perception of neutrality is not only based on guarantees of independence.Sajo Neutrality Draft 40 state’s interest. neutrality is substantive in the sense that the "result" should satisfy "neutral" criteria.ceu. unbiased rules (see central banks). shall be the subject of neutrality analysis. 1997. Budapest. The decision. or legal-procedural attempts to neutrality. Atlantisz. organizational. Thirdly. etc. The first choice (the first order problem) is a categorical one. allocative decisions within the category should examine the intrinsic values of the recipients using equal criteria of desert. must satisfy certain criteria. The examples we have discussed are structural. in order to remain neutral. although categorization itself is an insufficient condition of neutrality. http://www. the meritocratic criteria shall be “substantially related” to the category. As Guy Haarscher argues. Az állam semlegessége (The neutrality of the state) Budapest. One should also look at the outcome of the action of neutralized entities. 2001 Central European University. it means that the State is not the instrument of special interests. their equal dignity. Finally. May 3-5. 85 categorization satisfies the requirements of the neutral state as long as the categories do not discriminate among people. categories that allow government bias and partisanship to prevail will satisfy no expectation of neutrality. "Integrity and Neutrality of Legal Institutions. The government’s position must be categorical in order to remain neutral. According to János Kis. institutional. therefore. it is believed.

(Notre Dame) 1994. it is perhaps Herbert Wechsler’s attempt that has become the most influential in expecting neutrality from the Supreme Court. 12.Moral Argument at Home and Abroad . 90 87 88 89 90 Herbert Wechsler. expresses no particular culture.) The institutional guarantees of neutrality (the way in which the decision-maker is sheltered from external influence) replaces substantive analysis. or as Michael Walzer puts it. Thick and Thin . It may seem that the decision itself satisfies fairness. L. 4. 7. Wechsler. 15 (1959). To challenge these visible features on the basis of substantive analysis is quite costly and the substantive analysis. 98 (1931)." "grounds of adequate neutrality and generality" that transcended the immediate result reached in a case. . Michael Walzer. Carl Schmitt. is uncertain and therefore unconvincing. the “great trick” of neutralization -. op. it is difficult to challenge an appointment in civil service or library acquisition on meritocratic or other valuerelated (even professional) grounds. The rule carries no personal or social signature.” 97-101. which in any case would be too costly .cit. 89 This is satisfied if “the rule serves no particular interest. Toward Neutral Principles of Constitutional Law. Wechsler’s neutrality program is intuitively attractive. It seems to satisfy a minimal morality. Der Begriff des Politischen.Sajo Neutrality Draft 41 In American legal thought. (Lawyers often try to contest such decisions on grounds of procedural irregularities. Rev. in Carl Schmitt. being predetermined by expertise and scientific wisdom.2. given the uncertainties regarding neutral criteria. that in the majority of cases the substantive analysis is replaced by fair procedures -. and the conflict between the substantive departure from neutral categories is not visible or cannot be successfully argued. 73 Harv. Wechslerian constitutional theory prevents political judgments from "turn[ing] on immediate result"88 by finding ways to infuse politics with constitutional principles. regulates everyone’s behavior in a universally advantageous or clearly correct way. Reasons for and limits to neutralization Carl Schmitt makes a particularly challenging comment regarding the impossibility of liberal neutrality. it touches upon what makes the ideal of neutrality appealing (until the shortcomings become visible). 87 Beginning in the 1950s. 1. p. minimalism in morality. Except for obvious bias indicated by violating conflict of interest rules.namely.” Of course. the American legal community expected that the Court's constitutional law decisions be accompanied by opinions justifying results on "neutral principles.is often successful. “Übersicht über die verschiedenen Bedeutungen und Funktionen des Begriffes der innerpolitischen Neutralität des Staates.

”93 Berlin. where state neutrality is also assumed to be a good. Moreover." Schmitt’s criticism regarding the partisan (neutrality violating) nature of the actions taken against extremist parties misses the point. official gazettes. There were too many abuses of the concept and. reads as follows: "The Constitution may be amended by law. 92 I do not have data but I do have clear evidence from (?) the courts enforcement record. through film censorship. 1996 (1934). by banning assemblies of extremist parties. ( Glasenapp v Germnay. as is the case in increasingly heterogeneous modern democracies. A104.”91 Contrary to Schmitt’s claim. ECHR judgment of 26 September 1995. 76 [of the Weimar constitution]. 91 Art. Duncker-Homblot. 2087. there is an increased need for values and cultural symbols that integrate local societies or the nation state. Further.J. traditional values cannot successfully mobilize the entirety. above). A323). or competing conceptions of the good life. 93 Owen Fiss. The acts of the Reichstag amending the Constitution can only take effect if two-thirds of the regular number of members are present and at least two-thirds of those present consent. the state can no longer pretend that it represents the community as a whole. Neutrality helps to avoid situations that would de-legitimize or paralyze the state. Where there are no shared values. partisanship in the allocation of civil service jobs has been declining over the past fifty years. Such measures do not violate per se the traditional understanding of neutrality within a democracy (or within any state – see Locke on non-toleration of atheists.Sajo Neutrality Draft 42 “All forms of preference to the given form of state or the governing parties – be it in the form of subsidies to be propaganda. 2100 (1991). Governmental and professional ignorance. . We want the state to be neutral between competing viewpoints. with the distinction between legal and revolutionary parties on the basis of their programs – meaning outright and outrageous opposition to the constitution in the sense of a consistent rethinking of art. according to Owen Fiss. by the restriction of party political activities and the violation of the party affiliation of civil servants in the sense that the governing party permits the civil service membership only in the government party or in parties not too distant. or the public interest writ large. given the increased social transparency and the enlightenment of the public opinion. State neutrality emerges as a value taken for granted which. only a few mechanisms could counter anomie. 76. through discrimination in the use of discrimination in the use of radio stations. "State Activism and State Censorship. The neutrality model is quite attractive for welfare state distribution." 100 Yale L. With the thinning of the nation-state in pluralist secular societies. See the changes in the understanding of loyalty in Europe from the Glasenapp case to the Vogt case. dictates non-intervention. ECHR Judgment of 28 August 1986. as well as the avoidance of responsibility among politicians and within public bureaucracies. 92 The neutralization of the constitutional state is dictated not only by the delegitimating effect of the spoils system of partisan politics. “might have some sway in the speech area too. Vogt v Germany. political horse-trading is too obvious.

David Cole finds that “…strictures of neutrality and independence apply in these contexts … because the internal functioning of each institution demands insulation from government content control. as it seldom trusts the available solutions. etc. 95 96 Sandel op. The extent of the danger depends on the relation between the audience and the speaker or regulator and on the distribution of the communication channel or access. In economic policy. Indeed. once partisan positions and Weltanschaaung tend to be imposed from above. quite interestingly.Y. What happens in the name of neutrality is that only the status quo is reinforced. will advance techniques of neutralization.Rev. its legitimacy and effectiveness (in the sense of reducing social conflict n and also in terms of the mistakes of partisan bias). Skepticism in the moral sphere likewise dictates that no public authority can dictate models of the good life. the shortcomings of democracy. neutrality is liberating. We have identified a number of loosely-related historical and pragmatic reasons for neutralization. cit. it will be reluctant to impose views and solutions on society. 682 (1992). As Sandel puts it. Skeptical liberalism suggests that political organizations may follow the dictates of fairness. . neutrality is needed where “permitting content control poses a substantial risk” 97 of indoctrinating listeners or skewing the public debate.L. In the specific context of speech. fiscally neutral tax is the ideal.). 675. David Cole. restricting partisan democracy. in these societies the point of justice is to respect people’s freedom to choose their own values. These include the need for social peace. most 94 Of course.g. However. in this regard. 97 Ibid. the childless wealthy. The speech-related concern is somewhat specific. and the insufficient performance of an often-overextended state. However. as it concerns the specific impact of the product (communication). 732. in principle. 94 In the postmodern world of complex and uncertain identities. but the state cannot provide mandatory ideals. the state is incapacitated to determine them. the government shares the cultural uncertainty that prevails in the post-modern society. 95 To my mind much liberty is an Ersatz: there is no acceptable common good.” 67 N.Sajo Neutrality Draft 43 The neutrality of the state helps to avoid the imposition of identities by taking sides (e.”96 In Cole’s view. “Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech. A spheres of neutrality approach would require that all public institutions … operate with a degree of independence from government control. Such measures increase. the reality is quite perverse.U. the state that operates under the assumptions of liberal neutrality. for or against the poor.

nor subject to sufficient democratic (elected-political) control. The cultural government found the panel decisions unacceptable and contrary to the government’s cultural policy. 100 In Hungary. interests in neutrality. 99 However.not only outside democracies -. 457 U. 909 (1982). government with governance. given that the democrat may not makehimself credible. professional politics is used.Sajo Neutrality Draft 44 neutralized public spheres (other than the economy) concern the production of knowledge. 99 In order to preserve the image of state non-interference. for (as he was then) Justice Rehnquist. no politics. professionallymotivated institutions and the delegation of decision-making to non-governmental bodies where the members do not existentially depend on the state. The Fund’s allocation mechanism was changed. 98 In principle. Pico. The neutralization or de-politicization of government is a matter of degree and blend. political. On the other hand. It is still difficult to translate policy into Hungarian. “ideas are no more accessible or no less suppressed if the school board merely ratifies the opinion of some other group [of experts] rather than following its own opinion. thus.had a longer period for this adjustment. such as that of the nationalist partisan state and -. bringing half of the Fund into the discretionary power of the Minister of National Heritage.the faith-protecting mission might remain prevalent in denominationalfundamentalist states. . It helps at least to the extent that the arrangement prevents government from shaping the public debate. ethnic.e. or leaves herself open to spoil--exposing the loser to too much risk -. by decentralizing decisions to panels of peers.” Board of Education v. or other mission to democratic spoil. committed or parity-oriented normative concepts might prevail. etc. Neutralization through 98 In Anglo-Saxon countries which proudly claim a long established democratic traditions. the neutrality model of the state competes with others. Even in art funding non-neutral. 853. The resistance to neutralization arises from those who attach some kind of spiritual. the language – a language that is the lingua franca! -. Neutralization of government through the building of autonomous. decisions of neutralized public institutions should not be governed by partisan politics even where the political branch funding the institution has clear partisan preferences. But there is a price. economic institutional.alternatives are neither democratic. not to speak of education. Notwithstanding the clear social. where szakpolitika i. These are presented (and hence legitimated) as areas outside power politics. etc. Consider this at the level of language: politics is replaced with policies. The decisions should follow professional canons as applied within the specific functional context of the institution. which advocated a return to traditional Christian and national values.S. the contemporary world is not fully ready to endorse it. spheres where there is no herrschen. 100 However. is valuable in most areas of cultural production. one may notice a nearly desperate effort to insulate art funding and its procedures from partisan political considerations. it derives from the wish of herrschen. a National Cultural Fund was established with a similar structure.

private censorship affecting public discourse may emerge. if the government’s choices remain within the domain of the discretionary dictates of state reason ( Staatsraison) or political partisanship. 92. The decision-making itself (though somewhat discretionary) allocates the decision to non-political public organizations. the functional requirements analysis may be of limited help. if we can believe J. viewpoint discrimination will not be an issue as long as acquisition practices are functionally neutral. the harm principle determined the appropriate governmental interest for intervention. This relatively clear guidance is lost in a world where all sorts of claims are made on the state. i. and in a broader context governmental decision-making bodies. Unlike in the case of governmental regulation.S. While governmental influences diminish. religion. As mentioned above. speech. except if special rules apply. . Unfortunately.whether “there is an appropriate governmental interest suitably furthered by the differential treatment”101 -.g.S.S. science) from partisan political influences. Mosley. Let us take the example of acquisitions in public libraries. Institutional neutrality may yield protection from government (political) intervention in decisions affecting the public. However. The test used in the U. free speech protection does not protect against restrictions inside private institutions. in the context of free speech -. For example. it is not a perfect 101 Police Department of Chicago v. or at least it leaves undecided the proper level of scrutiny regarding appropriateness. A librarian who excludes books denying the Holocaust violates the prohibition of viewpoint discrimination. Institutional autonomy is a more aggressive though still partial solution to protect liberty (e.e. How is this bias in government to be reduced? The first step towards neutrality restricts discretionary power and makes decisions subject to review by non-partisan organs. Mill. Public discourse might be hampered if school library decisions or speech in school is determined exclusively by dictates of institutional culture and functional considerations. In the days of laissez faire. These might become tyrannical if they are not responsive to speakers’ interests and if neutralization of the institutions creates a private or nonpublic sphere. 95 (1972). 408 U. It is highly problematic. is based on the assumption that these institutions are the best qualified to know what is dictated by the function of the institution they serve.Sajo Neutrality Draft 45 insulation means that the constitutional protection against censorship may not apply within the institution. and a source of easy abuse.. she may prioritize factually uncontested books or books which are required for courses and exams. as long as the librarian follows a neutral scheme of acquisition dictated by the needs of readers or other professional concerns. as the whole idea of expert institutions.is somewhat circular.

Institutional autonomy is valuable only if such autonomy does not bar the protection of individual liberty. precisely because universities are autonomous. the court held that by prohibiting public servants from speaking out in favor of a political party or candidate. In France. as it might be a violation of autonomy. Institutional neutralization results in avoiding accountability and minimizing political responsibility. as neither democratic accountability nor rights protection may be available against private tyrannies. The Supreme Court of Canada is less deferential to the neutralization of civil servants through speech restrictions. the 102 [1991] 2 S. The autonomy of universities (a sphere of free speech carved out from government intervention) offers an ironic illustration of this ambiguity. Institutional neutralization may contradict the requirements of state neutrality. this is countered by express constitutional provisions or interpretations that guarantee academic freedom.Sajo Neutrality Draft 46 solution. the more the institution is autonomous. In other circumstances. In Osborne v. Universities (both public and private) exercise speech restrictions that resemble civil servants’ loss of speech rights. To the extent that the various procedural or substantive criteria reflect or influence public thinking. such arrangements may result in restricting or oppressing the political liberties of those inside the neutralized body. This problem of accountability is clearly presented in the case of media regulatory agencies and central banks. which was offered in exchange for job security. A historian sympathetic to Nazi ideology can be denied tenure. Universities have the right to deny positions on the basis of viewpoint discrimination. as did the U. To what extent such a restrictive requirement may be imposed varies among liberal democracies. 102 In addition to internal censorship. Canada (Treasury Board).C. there is a second cost element in neutralization: non-accountability. as voiced in political philosophy. In some of the cases. there might be a considerable price to be paid. the more likely it will develop internal censorship and internal bias. 2(b) of the () Charter. the general public protection to freedom of speech does not extend to the university. 69 .S. Given the limited penetration into the autonomous (private) spheres of the constitutional protection of liberty. scholars who refute the Holocaust were subject to disciplinary procedures and the dissertation of a revisionist historian employed as a researcher was rejected. Further. fortunately.R. the law expressly intends to restrict expressive activity and is accordingly inconsistent with s. The European Court of Human Rights found such restrictions acceptable . Supreme Court.

The difference is. though.” . 5. 912-917 (1979). Rev. In the case of broadcasting authorities. Yudof. neutrality does not pertain to the hard core tenet of liberal constitutionalism. Together with other fuzzy concepts (impartiality. 863. 155. In Germany. today it is generally accepted that the independence of such bodies should be granted by judicial supervision (to the detriment of any parliamentary control). "When Governments Speak: Toward a Theory of Government Expression and the First Amendment. as we understand those rights. op.e. as long as the criteria applied by the parents strictly refer to the needs of the children’s moral and cognitive development and do not encroach upon the author’s political viewpoints or morality. justices will not review the application of actual criteria. finds Yudof’s position insufficient as “the fact that selective government speech is sanctioned by the legislature provides no guarantee that it will not skew the intellectual marketplace or indoctrinate the citizenry." 57 Tex. integrity.Sajo Neutrality Draft 47 neutrality of the state will loose credibility. 714. The problem is that external independent supervision may undermine the autonomy of the institution. With growing juridicization. being ex post and not necessarily sharing the interests of the goal-setting (political) body. thereby avoiding substantive review of specific decisions.) is limited to the analysis of the board's composition and the observance of hearing rights. argued that neutrality is not a feasible requirement in funding and it is not for the courts to exercise review of speech-affecting spending. Such conditions vouch for the fairness of the decision. Review of a university disciplinary procedure that concerns academic merit (e. There is a justified presumption of some neutrality in the case of independent bodies. the danger can be limited. autonomy. perhaps similar suggestions will be made with regard to central banks (when their accountability deficit becomes more pronounced). for example. L. But the institutional arrangements do not make additional external (i. the Federal Constitutional Court emphasized the importance of such institutional-organizational guarantees. that central banks hardly ever touch upon fundamental rights. A library commission composed of parents is assumed to be the best protector of the children’s educational interest. especially if the decisions affect fundamental rights. 103 Mark G. independent from the goal-setting. however. denial of tenure. The “neutral” composition of the decision-making body is deemed to be a sufficient guarantee. a non-governmental institutional decision-making environment renders the administration of meritocractic criteria more credible. some level of substantive judicial review103 is often recommended. Trust and Loyalty in the Neutral State As mentioned above. etc. cit.g. Certainly. Generally. influencing government) supervision futile. Given institutional censorship and thepolitical dependencies of allegedly neutral institutions. Courts might be satisfied with the analysis of those structural organizational criteria. fn. Cole.

which emerged in the 1905 legislation that denied all government support to churches. J. 106 It was argued recently that. Such neutrality may de-legitimize (missing object)." which resulted in indifference in the face of genocide. and the Dead. especially in education. has been intensified by recent disclosures concerning the European neutrals' continuing economic relations with the Nazi regime during World War II. A final interpretation of the change is that the concept was reshaped in line with the times (and political pressures that new policies try to contain and accommodate. 14 Am. given the "moral grounds" of international law. as is well-known. 58 (1998). see Jean Ziegler. U. Int'l L. the Gold. the model of belligerent neutrality – a highly controversial and fuzzy concept on its own right106 -. may have its moral hazard. The Washington Accord Fifty Years Later: Neutrality.104 The problem of intervention became one of the great puzzles of contemporary international relations. U. as exemplified by the concept in international law of state neutrality as "guaranteed non-interference. On these topics.). and International Law. and of the Swiss banking community. The French example indicates that neutrality had to open up itself to accommodate equality concerns. 18. U. Ziegler's book is a blistering indictment of his country's government. Or if both fit into laicite. Rubin. 133 (1997) (asserting de facto integration of Switzerland into the Greater German [Reichsdeutsch] economic area between the defeat of France in 1940 and 1945). This reshaping means that equal treatment penetrated and throw into confusion the concept. however. promising some actual decisionmaking advantages and allowing spheres of life to avoid the totalitariansim of the political. & Pol'y 83. 14 Am. The Traditional Legal Concept of Neutrality in a Changing Environment. 14 Am. was replaced following street demonstrations in the Fifth Republic without ever recognizing that one cannot call support and nonsupport equally laicite. Int'l L. 80-81 (1998) (noting the quandary of choosing "evident and accepted" standards in dealing with morally conflicted situations). they are subject to external political and other (e. than the concept itself is too open and lacks substance. Parallel situations exist in neutralized domestic politics: should e. it does play a considerable legitimating role. the state interfere into racist speech or take active preemptive steps against allegedly extremist parties? Further: should an independent broadcasting agency sponsor "culture" (public service programs) if it wants to remain loyal to neutrality? The boundaries of neutrality are not predetermined. As mentioned above. Vagts. 84 (1998). In a way. Neutrality. What used to be equal distancing is understood today as equal support without any involvement.Sajo Neutrality Draft 48 etc. Seymour J.g. J. See Egon Guttman. Morality. J. 13. The Concept of Neutrality Since the Adoption and Ratification of the Hague Neutrality Convention of 1907. & Pol'y 55.g. rather than crush. for . interest group) pressures and their boundaries shift over time. The moral attack on neutrality. as the Republicans once tried). The French concept of laicite. 105 The differences are spectacular even synchronically: one should only look again at the various understandings of church-state relations in advanced democracies. humanitarian law or the law of war. the 1907 104 See Detlev F. The most spectacular examples concern state-church relations 105 and privatization.became applicable. The Swiss. & Pol'y 61. neutrality is not observed if the power not intervening in the conflict disregards the behavior of the belligerent parties and turns its back to violations of human rights. Int'l L.

Int'l L. increase trust to the extent that people are conditioned to trust professional expertise. in principle. the neutral party could maintain certain relations.the non-satisfaction of neutrality requirements rather than the futility of neutrality –was. as long as these relations applied to all belligerent parties. and remains. See id. increases the bias in favor of the status quo. 107 (1998).) Perhaps more important for the specific concern of this study. namely the loyalty implications of neutralization. 107 See Krister Wahlb ck. the position of the revolutionary regime denial in the Leninist-Schmittian tradition (not that this latter position is unlikely to be intellectually well-founded). "An International Law Institution In Crisis: Rethinking Permanent Neutrality. one that cannot develop in obviously partisan (interest) politics based on providing the gold.g. J. to the extent that neutrality implies impartiality. is that whatever happened. at 107. & Pol'y 103. A state subsidy according to actual parental choice of denominational schools is different from one that grants education subsidy according to statistical data regarding "believers" or in line with the historical importance or values of a church. See id. If all Swedish iron was contractually committed to Germany during WWII. the neutrality of various distributive criteria differ.Sajo Neutrality Draft 49 Hague Convention required that the neutral party should remain uninvolved in the armed conflicts of others. Neutrality and Morality: The Swedish Experience. At the same time. U. neutrality in the above sense. it happened within the concept(s) of neutrality. 14 Am. Of course." 61 Ohio State Law Journal 167 (2000). 107 Likewise. In other words. e. was open to deliveries to Britain (a technically unlikely solution). as a guarantee of professionalism. The regime on which critics base their criticism -. Of course. the appeal of neutrality as a means of legitimacy was left unchallenged. neutral arrangements. Further. equal support to churches in accordance with their "size" or (much worse) historical-national importance. we have an additional element of trustworthiness. etc. it made little difference that Sweden. Havel.laundering services that helped to finance the Wehrmacht and gave Germany access to internationally disposable foreign exchange to buy strategic raw materials. The first criterion is neutral in the sense that relates to the goal of support (for education) and not to one's worldview (though the educational choice of the parent is directed by his or her worldview. Neutralization means that the changes which affected to operations of the contemporary state were presented as changes that did not violate neutrality (autonomy) requirements or increased institutional autonomy. Much of Swedish economic activity was not in technical violation of the international law of neutrality. The geopolitical status quo will turn this equal distance-equal relations into unequal relations. at 48-49. . See further Brian F.

which sought to find governmental neutrality against the factionalism that is transferred through the branches of power. there are trends to build democratic/participatory elements into the neutral institution. 109 In a way. indeed. That "acquired rights" become politically burdensome is shown in a recent statement of Hungarian Prime Minister Medgyessy (the successor as Minister of Finance when Mr Bokros was ousted). have inherent difficulties in keeping commitments. Note that at least in Germany the justices were closely related to academia. where factional units and jealousy of the separate branches of government push the state machinery into some kind of non-partisan equilibrium. However. All that enables asset stripping. It was easier in Gladstone’s days to keep the appearance of non-interest politics. Complex organizations like the modern state. the rolling up of preexisting welfare in Finland did not result in serious social resistance. Welfare is seen as an entitlement or acquired right. to my knowledge. and hence diminishing overcommitment is a breach of government promise (commitment). One way is to delegate the whole commitment-making process to 108 This was easier in the second half of the 19th century. In reality. For the complexity of the issue and the effects on neutrality of democratization or opening. or simply part of state failure. however. among others of emerging democracies. This “public management” is much heralded as increasing social participation and limiting political partisanship.Sajo Neutrality Draft 50 unprincipled logrolling. the entities are not subject to standard supervision. Student and staff representation in faculty bodies (influencing academic appointments and curriculum) and patients’ rights representatives are two examples. neutralization is a reasonable alternative. Once the trust in (and loyalty to) institutions that offer participation diminished.108 The practical and political difficulties of such participationbased institutional trust-building are formidable. To cut back. I have argued against the absurdities of this theory elsewhere but I have to admit that the irrationality of the political argument or the internal weaknesses of the legal doctrine of social entitlements makes little difference in terms of public attitudes. with pluricentral commitments and subject to short-term perspective due to democratic politics. As non-governmental. see the German and French constitutional decisions regarding faculty councils (finding unconstitutionality in the defense of academic freedom). with predictable impact on the trustworthiness of independent public foundations. Government (public) functions and assets are transferred to non-governmental public foundations or corporations (legal entities). Democracy pushed the state to promise services. is extremely unpopular. the governing boards are composed of cronies or politically reliable cadres (replaced to the extent possible by the next government). In the context of “privatization. named after Minister of Finance Bokros. this lies at the heart of Madison’s dream of constitutionalism. which it could not efficiently deliver. it was nearly inevitable to switch to some alternative of non-participatory legitimacy bases. when the press had greater difficulty in generating publicity. and it was not much of an issue in Sweden. is highly problematic and may result in additional conflicts without increased neutrality or rights protection. The shrinking of the state is a complementary measure to solve the problem of diminishing trust. however. This.” an interesting form of neutralization emerges in Eastern Europe. partly given that only a rather homogeneous elite was represented in Parliament. characteristic. His approach was a different one. See for example the 1995 public debate in Hungary about the austerity package. private entities carrying out public functions. 109 Given that all the development occurred in a democratic setting and in societies that held democratic values high. including to a great extent to churches (for the utmost glory of neutrality). this is seen as political interference into independence. Diminishing over-commitment110 may increase credibility. . To the extent that the state machinery is the easy prey of (intolerant or simply interestmaximizing) majorities. 110 Overcommitment might be the structural problem of the welfare state in democracy. He argued that universal child support would continue as it is an acquired right even for the financially secure who do not need it.

especially against one’s own interests. The insufficiencies of a privately-provided service. Courts are designed to remain outside conflict.Sajo Neutrality Draft 51 institutions that are beyond the reach of ordinary politics (the political. i. "The Street Level Epistemology of Trust. 111 In both cases. Neutral institutions (or some types) and the state. will diminish. Neutrality has specific dangers in loyalty-building. As mentioned. as the belligerent neutrality model indicates." 21 Politics & Society 505-29 (1993). because of its uncertainty. neutrality is not loyalty-building: loyalty is unlikely to a party that is deliberately (and not even fully convincingly) uncommitted. such decommissioning may take the form of institution neutralization or that of privatization. that is. one will not rely on the neutral institution in the case of alternatives. which might prevail in certain societies and is identified with specific state agents. and likely to act in the interests of those being asked to trust the institution. they are indeed above the parties and have (at least in the "ordinary" cases) no stake in the outcome. than there is neither much chance of nor much need for trust in neutral professional institutions (including courts). Historical record (the little of which I know) does not indicate that neutrality in war (or conflict) increased trust. If one follows Russell Hardin’s concept of trust. results in loyalty to the irrelevant (though I do not deny the importance of the symbolic). . even if it is state-sponsored. 112 Russell Hardin. satisfies a normative expectation of trustworthiness as identified by Margaret Levi: “Institutional trustworthiness implies procedures for selecting and constraining the agents of institutions so that they are competent. The example of the judiciary only apparently contradicts this position.) Such non-involvement. Courts are far better insulated in ordinary conflicts than other neutral institutions or allegedly neutral powers. Juan Carlos is the borderline case. who stands outside the conflict. As in the example of Hindenburg. An 111 Margaret Levi argues to the contrary: The privatization of social services and the consequent nonuniversalism and non-standardization in provision (Smith and Lipsky 1994) is likely to increase distrust in government as an institution that enforces impartiality. that A trusts B because she presumes it is in B’s interest to act in a way consistent with A’s interest.” Institutional neutralization will not necessarily result directly in increased loyalty. will not be attributed to the state. credible. however. the mistrust of government. On the other hand. Modern monarchs remain neutral because they do maintain their distance (non-involvement as Constant dreamed about it. to the extent it proves itself as a neutral set of institutions.112 namely. the most timesensitive aspect of the state).e. it is very unlikely that the head of state can be seen as impartial as soon as he becomes involved.

though it may serve my interest as a taxpayer. Even if I trust the system I will not be loyal. Acceptance into the neutral professional community has informational value to the extent that it guarantees some trustworthiness or lack of bias (partly because of the nature of the control exercised by the neutral institution). I may trust the health system for its fairness. competitive elections in which the outcome is never an absolute certainty are another signal that the state does not rig the game (Przeworski 1991). though the two are related. One will not perform her obligations towards an institution because that institution is neutral: neutrality per se is not a guarantee of future reciprocation. A patient’s loyalty makes little sense in the health care system.e. The health care system (including rationing) is accepted. It is true that what is this knowledge offers might serve my best interest. Here. Citizens feel that they may lose on some issues but win on others. though institutions themselves may have a record of obligationperformance that might increase trust. I cannot accept that the health care system’s rationing serves my interest and queuing as a patient (hence bribery). and I trust my physician because of his expert knowledge. the fundamental features that are generative of trust are in place: “Recurring. one performs it because it does not assume (?) the power of enforcement or sanction. or I will go to an alternative service. To the extent that trust is about the performance of obligations. the institution’s obligation is that of performing a public duty.Sajo Neutrality Draft 52 academic community will act according to the institutional interests of the academia and not according to mine. i. after the failure of democracy as spoils-oriented interest politics. However. I will cheat. if it exists and I can afford. This serves confidence in the institution but not trust in the person who is supposed to perform. notwithstanding the shortcomings of democracy. hence we face certain difficulties with the traditional personal models of trust where the obligation is towards the interested person. reciprocity institutional neutrality gives little direct orientation. the prevailing view is that. but I will not rely on it if I have to wait six months for a cancer operation. though neutrality might be relevant in the context of information regarding trustworthiness. The information is not about trustworthiness in the sense of obligationperformance. though I might be a member and may share in abstracto those interests and values. Evidence suggests that state neutrality emerged as an alternative to democratic/participatory legitimization and trust-building. and that they will always get the chance to try again on . A person who utilizes a neutral institution often has only second-hand information about its reputation.

The general public will be considered incompetent." European University Institute. as these expert systems are designed not to react to external criticism. The fact that citizens have a better (rather high) chance of participating in decision-making might appear as counterproductive. and conflict. 23. is a sign of strong institutions in which the population has a deep trust. "A state of trust.Sajo Neutrality Draft 53 those questions about which they feel strongly – and with some probability of success. it is believed. The neutralized aspects of the state will be subject to efficiency considerations and distant or sheltered from public criticism.” 113 The lessons of neutralization point to a different reading. The effect is trust in the institution combined with the continuing rehearsal of the same issues over and over. The greater the choice. If one physician proposes surgery and another suggests herbal remedies. Increased choice does not yield trust where acceptance is based on the professionally-certified solution. to the extent that promises of professional neutrality are not met. The moral criticism of citizens. politics will become the area that does not require professional knowledge. The “continued rehearsal” of competitive elections and the reopening of issues contributes to the sense of division. the less the acceptable solution. However. states’ rights. given the imperfection of neutralization and the actual built-in political and other bias and influences. Such loss is preprogrammed. and many other questions keep coming up again and again. Neutralization is partly related to the state's agnostic attitude to complex social phenomena and partly to the legitimacy crisis of the democratic spoils system of interest politics. To the extent that the state is legitimized as neutral it will loose loyalty. EUI Working papers of Robert Schuman Centre. the choices do not really help the patient. 12 (1996). heterogeneity. B will lack the capacity). Neutralization of the state may impoverish the public sphere. hence impersonal predictability." The unfinished business of interest politics. This. The feeling of never-ending conflicts increases the feeling that matters are handled unprofessionally and the alternative should be a professionally-determined "final solution. Neutralized spheres of the state are presented as entities that follow professional. It is unlikely that such impersonal institutions will generate loyalty. allegedly the only acceptable critical 113 Margaret Levi. scientific considerations. Robert Schuman Centre. abortion. Where neutral policy is opposed to interest politics. . Of course. “Scientific detachment” and professionalism. the system may loose all its trustworthiness (though A has no reason to assume that institution B will not follow A’s interest. I suggest. in the United States. Thus. as it leaves matters unsettled and uncertain. are the source of trust as credibility. can be countered by the neutrality of professionalism. the loss of trust will not influence the neutralized system.

... .......14 4.......... Neutrality from Within..........................Sajo Neutrality Draft 54 capacity of the layperson..................................... tries to maintain distance....... The neutralized sphere is not simply not morally-oriented..... Shortcomings of State Neutralization.10 3......................................... 115 Loyalty to such institutions by those who are part of the institution or organization is a different matter and should be discussed separately............................. by definition.......... He accused them of misunderstanding state neutrality........................... the bishop who delievered the sermon on Saint Stephen’s Day (Hungary’s most important saint. Academia......39 5.. 2 1........ Is loyalty possible towards institutions that do not allow identification for outsiders? 115 Does institutional neutrality require the loyalty of outsiders? Introduction............ keep the public at distance.... Autonomous Social Institutions (Science. the “founder of the state”) reprimanded those atheist government officials who failed to attend the mass............. State neutrality through non intervention....................... Believers would insist that the state should participate in their festivities – a challenging expectation for government officials serving state neutrality............. 114 Professionalism......... because of the language of communication... is therefore seen as inappropriate. civil service for reasons of insulation........................................... Secret services are the utmost example of this development.......4 2........ Neutralization......... University).........47 114 At the time of finishing this draft...... but it is above moral evaluation or criticism..... Trust and Loyalty in the Neutral State ... Lack of the moral dimension and moral sentiments undermines loyalty............