Liberal Neutrality and Charitable Purposes
| DOI | 10.1111/j.1467-9248.2011.00942.x |
| Date | 01 December 2012 |
| Author | Nick Martin |
| Published date | 01 December 2012 |
| Subject Matter | Original Article |
Liberal Neutrality and Charitable Purposespost_942 936..952
Nick Martin
University College London
Under UK charity law, organisations seeking charitable status must demonstrate, inter alia, that they will pursue a
purpose the state deems ‘charitable’. Such purposes inevitably reflect conceptions of the good,thus it is argued here
that the state, in granting charitable status, affir ms the value of ideas about the good; it indicates that a set of
conceptions of the good are worthy of special advantages that are not provided for the pursuit of other conceptions.
The designation of charitable status appears to be at odds with liberal neutrality,which argues that the state should not
pursue, promote or pass judgement on particular conceptions of the good. In short, there is a prima facie tension
between the general liberal neutrality doctrine and charity law. Yet liberal neutralists have not addressed this policy
area. This article surveys the grounds for reconciliation between some conceptions of liberal neutrality and the present
charity law.‘Neutrality of effect’ addresses some concerns but its implications for charity law are not in accord with
the general practice and principles regarding charities. Barry’s process of abstraction is argued to be untenable as a
policy option for charities. The article concludes that in so far as one is neutralist, ‘neutrality of justification’ in the
form of neutral goods provides the most plausible account of charity law.However, such an account entails alterations
to the existing legislation that one may view as a failure to account for well-established, legitimate principles and
traditions in charity law.
Keywords: liberal neutrality; charity; charitable purposes; reflective equilibrium
Influential streams of liberal political thought have argued that the state ought to be a
neutral set of institutions that do not pursue or impose particular conceptions of the good.
According to this perspective,the state does not have purposes of its own or pass judgement
on what it means to lead the good life. As Jonathan Quong summarises, a liberal state
should be limited to ‘a fair framework of rules and institutions to regulate the distribution
of the burdens and benefits of social cooperation’. The neutral framework is one ‘within
which each citizen is allowed to pursue their own conception of the good life, whatever
that may be’(Quong, 2005, p.302). Many liberals similarly defend, in some form or another,
state neutrality.
Charitable or altruistic activity is widely regarded as a valuable component of civil
society1and such activity should be facilitated (seeTitmuss, 1970). In UK law,the distinctive
status of charitable organisations within civil society is promoted by state recognition and
fiscal support, among other measures. Yet with the designation of charitable status, the state
is granting a set of privileges to organisations that pursue particular pur poses deemed as
‘charitable’. In granting charitable status the state makes a value judgement about certain
goods; it tells us that a given set of conceptions are worthy of special provisions, such as tax
exemptions, that are not available to the pursuit of other conceptions. In short, the
legislation appears to contravene liberal neutrality.
The task of this article is twofold: first, to explicate the prima facie tension between charity
law and liberal neutrality; and second, to provide some insight into whether or not the two
can be reconciled by exploring various conceptions of liberal neutrality.Underlying these
two tasks is a methodological issue,namely what would count as a satisfactory reconciliation
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doi: 10.1111/j.1467-9248.2011.00942.x
POLITICAL STUDIES: 2012 VOL 60, 936–952
© 2012The Author.Political Studies © 2012 Political Studies Association
between liberal neutrality and charity law. I shall employ a particular version of reflective
equilibrium, considering the neutrality theory against the well-established principles of
charity law, adjusting the former or latter where it seems appropriate. Thus, neither the
theory nor the principles are taken as trumps. It seems reasonable to expect that there will
not be a single, unified conception that satisfies all examples of charitable activity. I
anticipate only partial consistency and so there will inevitably be loose ends.For that reason,
the article’s conclusion is in the conditional: if one is a neutralist then one must be prepared
to exclude some present categories and reform others. If, on the other hand, one is
persuaded more by the tradition and/or value of the present categories then one must
jettison neutrality. To provide some context to the problem I will first briefly outline
elements of charity law.
Charity Law
In UK law, the formal definition of charitable purposes can be traced back to the Statute
of Charitable Uses 1601 (1601 Act hereafter). TheAct sought, first, to direct funds towards
identified purposes such as social care and, second, to reform abuse of property given to
charities by identifying certain purposes that would thereafter be known as charitable. The
preamble to the 1601 Act sets out such purposes, ranging from the relief of the poor to the
repair of highways and bridges. The list was not intended to be exhaustive of charitable
purposes but to be illustrative for the judiciary in future case law. It is interesting to note that
a sense of ‘social control’ features in the 1601Act, such as helping poor maids into marriage
and the rehabilitation of prisoners. Kerry O’Halloran notes that such purposes indicate a
‘legislative intent to promote congruity between the agendas of charities and government
on the assumption that both share a common interest in activities which conform with and
tend to preserve the values of contemporary society’ (O’Halloran, 2007, p. 63). It suggests
a pattern of thought in the legislation where the state promotes certain activities it believes
to be worthwhile.
For four centuries the definition of charitable purposes was explicated in a body of case
law, where for a purpose to be charitable it would need to come within the ‘spirit and
intendment’ of the 1601 Act preamble.In Commissioners for Special Pur poses of Income Tax v.
Pemsel (1891), Lord Macnaghten extracted four heads of charitable purposes from the 1601
Act: the relief of poverty, the advancement of education, the advancement of religion and
other benefits to the community not covered by the preceding categories. The 1601 Act,
Pemsel and subsequent case law formed what would become long-standing principles in the
classification of charitable purposes, namely that they must be provided for the public
benefit, that they must be exclusively charitable and conform to Macnaghten’s four heads
or the ‘spirit and intendment’ rule.
Nevertheless charity law was not a unified body of jurisprudence and char itable
purposes still eluded legislative definition. The Charities Act 1992 and 1993 sought to
bolster the supervision and support of charities but avoided definitional matters so as not
to put at risk the flexibility of charity law to keep pace with contemporary society. The
Charities Act 2006 (2006 Act hereafter) was introduced primarily to reform the complex
and confused system of governance for charitable organisations in England and Wales.2The
2006 Act introduced, among other provisions, a new extensive list of charitable purposes
LIBERAL NEUTRALITY AND CHARITABLE PURPOSES 937
© 2012The Author.Political Studies © 2012 Political Studies Association
POLITICAL STUDIES: 2012, 60(4)
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