The jurisprudential theories discussed in previous chapters, with the notable exception of the theory of Karl Marx, are cast within the intellectual tradition of political liberalism. There are significant differences among these theories, but they are ultimately grounded in liberal views of law and society. This chapter discusses the challenges to the fundamental assumptions of liberal legal theory that came to prominence during the later decades of the 20th century. It will focus in particular on the ideas of the critical legal studies (CLS) movement, postmodernist legal theory and feminist theory. It is not possible to understand criticism without knowing what is being criticised. Hence, I start with a brief discussion of liberalism and liberal legal theory.
Liberalism and liberal legal theory
Liberalism is a tradition in political and legal theory that gives primacy to individual liberty in the political and legal arrangements of a society. ‘Liberalism’ is a term of recent origin. Originators of the liberal philosophy such as Hobbes, Locke, Hume, Smith and Montesquieu did not use the word. In fact, ‘liberal’ in early English usage was a term of ridicule meaning a libertine. The term gained respect and influence during the 19th and 20th centuries and (in its various forms) has become the dominant political ideology of the Western world. There are many kinds of liberal theory, and important differences among them. The following questions draw different responses from liberal thinkers:
1. Why is individual liberty the pre-eminent political value?
2. What does individual libertymean and what are its bounds and requirements?
3. How can individual liberty be achieved and protected; what kinds of institutional arrangements serve individual liberty?
Kinds of liberalism
There are two main liberal schools of thought about the pre-eminence of individual freedom. The natural rights theorists such as Hobbes, Locke, Grotius and Rousseau argued that liberty was inherent in personhood. Self-ownership, property acquired by one's labour and capacity to pursue one's chosen life ends were considered essential to existence as a person, as opposed to being another's property. Utilitarian thinkers such as Bentham and Mill, and evolutionary theorists such as Hume and Smith, believed in the intrinsic worth of individual liberty but made further arguments on grounds of efficiency. Societies that allow greater freedom for individuals have achieved greater prosperity than those that suppress liberty. This is also the message of modern economics based on methodological individualism.