Neutrality is one of many conceptual fictions of liberal discourse. A legal fiction is "contrived by the law" to facilitate adjudication of issues. Such fictions may serve as symbols, to make abstract concepts tangible or, they may be myths designed to promote some normative principle or goal. The problem arises when these fictions cease to be recognized as inventions, or as "presumptions about reality," and are believed to have an independent existence in reality. Then, they "purport to provide us with an objective and impersonal criterion, but they do not." According to the philosopher Alasdair MacIntyre, a fiction is "a pseudo-concept available for a variety of ideological uses .... Hence, when we encounter its use in practical life, it is always necessary to ask what actual project or purpose is being concealed by its use." For example, Professor Derrick Bell argues that racially neutral anti-discrimination law disguises continued bias, and creates a tendency for self-blame because of the difficulty of identifying more subtle forms of oppression. Similarly, in employment law, the enforcement of a neutral right to contract ignores the imbalance of power between worker and employer.
Jeanne M. Woods,
The Fallacy of Neutrality: Diary of an Election Observer,
Mich. J. Int'l L.
Available at: http://repository.law.umich.edu/mjil/vol18/iss3/3