Reasonable Disagreement and the Neutralist Dilemma

Chambers, Clare, “Reasonable Disagreement and the Neutralist Dilemma: Abortion and circumcision in Matthew Kramer’s Liberalism with Excellence” in The American Journal of Jurisprudence (May 2018). You can read the paper here.

Abstract: This paper starts by investigating the idea of reasonable disagreement. It then considers Matthew Kramer’s argument that there is no neutral solution available to the disagreement over abortion. The paper argues that Kramer’s account has wider application, and identifies a neutralist dilemma. The neutralist dilemma applies when, of two policy options available to the state, one is unreasonable. It follows that the state should enact only the reasonable policy. However, in a neutralist dilemma the fact of reasonable disagreement due to the burdens of judgment means that it is not possible for the state to act at all, whether legislating or not, without deviating from neutrality. The paper develops the concept of the neutralist dilemma and then applies it to another case discussed by Kramer: infant circumcision. The paper argues that the debate over infant circumcision can be framed as a neutralist dilemma, but that the most plausible resolution of the dilemma results in an argument in favor of the legal prohibition of the practice. This is a surprising result, since most liberal states do not restrict circumcision and since prohibition of circumcision might initially appear to be non-neutral or even illiberal; however it is consistent with the tenets of neutralist liberalism.