"The Western liberal tradition espouses admiral concepts. But it is when you scratch the surface that they begin to come undone."
The society we live in today is built around the principles of Western liberal tradition. No doubt this tradition espouses extremely admiral concepts that try to promote individualism and liberty and to guarantee fairness in the law for all. However, as we shall discuss in this essay, there are many areas in which Western liberal legalism falls short of the idealistic theories and propositions that it promises. This essay will first give an overview of the fundamental features of liberalism, and then go on to ‘scratch the surface’ by analysing the critiques of these features through the viewpoints of feminists and critical race theorists in particular. By the end of this paper, I hope to have provided a thorough critical analysis of Western liberalism through different perspectives and provided my own thoughts on our system of law.
What is Western Legal Liberalism?
"Liberalism" is the dominant ideology of modern Western society. It is normally taken as a market driven or capitalist economy and a political democracy. It can be contrasted from other forms of ideologies such as totalitarianism – a belief in unlimited government and socialism – a belief in collective ownership of productive assets.
According to Hunter et al, there are some central themes that are the basis for the laws that operate in our society today. These include, but are not limited to: the separation of law and politics, the rule of law, separation of powers, individual rights, liberty and privacy, equality before the law, natural law theory, positivism as well as common law theory. On the surface, these concepts and themes seem extremely admirable in trying to achieve a ‘fair, equal and just’ legal system, we shall eventually see that there are some serious shortcomings in these themes with respect to equality and fairness.
Most liberal theorists would agree that the law needs to preserve the liberty of the individual from the encroachments of others. However, although liberalism provides commendable concepts in theory, questions have been raised on how laws in liberal societies fail to correct sexual and racial inequalities that are inherent within the system. The next section will discuss the elements of liberalism and provide some insight as to why these ideologies can become ‘undone’ through certain critical viewpoints.
Perhaps the most significant criticism of liberalism is that all the assumptions made by it are based around the thinking of a white, educated male. Of course, the white-educated male is not the model of everyone in society, and if our laws and morals are built around one, then we can see easily how inequality and injustice may result. Hence, as you would expect, many feminists and critical race theorists have put forward the idea that liberalism fails to take into full consideration people who do not fit into this archetypical person eg, females and people from other racial backgrounds.
The three driving factors behind the ideology of modern western legal liberalism that distinguishes it from a traditional social order based on hierarchy, privilege and status are the ideals of liberty, individualism and equality. All liberals hold the belief that the individual should be naturally free. Freedom is the assumption that they owe no obligation to others unless they have entered into specific agreements. Unfortunately, this proposition can only operate as a starting point as liberty or freedom can mean different things to different groups of people.
Some feminists would argue that because the idea of ‘liberty’ is created from a man’s perspective, women cannot be naturally free as long as they exist in the predominantly male-dominated liberal society that exists today. Furthermore, women cannot be thought to be able to make free and rational decisions based on their own interests, as any decision they make will be influenced by gender oppression. Similarly, critical race theorists would argue that the ideal of liberty comes from a white man’s perspective and thus certain racial minorities would suffer due to racial oppression – the idea that a coloured person’s choices will never be as free as a white person’s. As you can see, just as we start to scratch the surface, the idealistic concept of liberty is becoming undone
Continuing on with the concept of liberty is ideal of negative liberty – the concept of freedom in absence of external restraints such as those imposed by the state or others in power. Such freedoms include civil liberty, fiscal liberty, personal liberty, social liberty, domestic liberty as well as local, racial and national liberty.
A principle that derives off the notion of negative liberty is the ‘harm principle’ – "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others." This principle gives the state power to control individuals’ actions should it cause ‘harm’ to others. However, uncertainly arises in the definition of ‘harm’. What may seem like harm to one person may not seem like it to another. Also, why shouldn’t the state intervene in preventing someone from harming themselves? What if there is no specific victim that is harmed, such as in cases of artificially created child pornography or consensual adult prostitution? Ultimately, it will be up to the courts to decide these questions. Nonetheless, the point must be raised that they need to be very careful in their interpretation of the principle as it may cause discrimination towards certain groups or even undermine the concept of negative liberty altogether.
Negative liberty is strongly associated with formal equality. That is, everyone should be treated equal before the law regardless of his or her gender, race, economic situation and other circumstances or characteristics. Although this idea may seem workable in theory, it simply would not result in a ‘fair and just’ outcome in reality. The reality is that some groups in society would be at an inherent disadvantage with a system of formal equality. For example, feminists would say that areas of life excluded from protection are those where women were and are situated, in particular "the family" and consequently if the state fails to offer protection within this ‘private sphere’ then women would be at a serious disadvantage. Certain racial groups, such as indigenous Australians have also been severely discriminated against in the past and present and require state intervention to insure that they can at least be on a level playing field as everyone else in terms of rights and opportunities.
Continuing on with liberty, we come to positive liberty and autonomy – the freedom by people to control their own lives and being allowed to determine their own destiny. Again, this ideal is easily broken down when we look at whether we are really true autonomous agents in society. Even when we start to critique this norm, we can see that the idea of autonomy is based around that of a white male and the freedoms associated with liberty as well as the idea of rationality are based from the perspective of a white male. Feminists would argue that society has established itself around these male bias social orders which require females to continually strive towards to gain recognition. Consequently, this undermines the notion of autonomy, as the female is not the author of her own life, but following what is expected of her in a gender oppressive society.
Liberty is one of the underlying principles within Western liberal legalism. It tries to establish a society where everyone is free to enjoy his or her own lives without intervention from the state. Although an admirable concept, problems do arise when we look deeper into society. Does everyone enjoy the same freedoms as everyone else? A great example is that of asylum seekers who are locked away in detention centres for indefinite periods of time. Are these people free? How can the state determine what sort of freedom people can exercise? Clearly, whatever decisions it makes will result in inequality and unfairness for certain groups within society. Nevertheless, we must also look at liberty in a positive light. After all, what other options are there? If the state started regulating every aspect of our lives in order to try and achieve ‘fairness’, would fairness result? Liberty attempts to establish formal equality within society so that everyone is treated equally before the law. Unfortunately, this notion ignores many differences between people. Some people have greater advantages than others do, whether due to natural abilities, family and educational advantages, inherited wealth or other kinds of good fortune. The facts are that everyone is essentially different whether be on an intellectual, financial or other level and have different goals and desires as well as perceptions of freedom. Obviously, there will be disadvantaged groups within society who suffer due to the nature of formal equality but in my opinion, this is as fair as a contention of freedom can get. If the state were treat different groups of people differently then that result in much more discrimination than is currently the case.
Individualism & Equality:
Individualism derives from the notion of liberty in that a liberal society tries to protect the liberty and autonomy of the individual. It does this through giving the individual freedoms as well as trying to ensure that individuals are treated equally before the law. However, what does equal mean in this context? If equal just means the state leaves everyone to go about their own lives turning a blind eye to social inequalities that do realistically exist, then is it doing its job of maintaining equality? Clearly, formal equality in certain aspects of law does not lead to an equal outcome for all. Thus, the liberal state must try to establish laws that allow for these social inequalities to try and achieve substantive equality in areas such as disposable income, health care, housing, education and access to justice.
The question to be analysed with respective to equality is should the state establish a formal or substantive system of equality? There are obvious advantages and disadvantages to each system.
From a feminist’s viewpoint, formal equality would not allow for true ‘equality’ under the law as it is based around male dominated principles from which the system was conceived. Women live in a male dominated society and it would be impossible for them to achieve equal status through a system of formal equality. Now we must ask, is this true? Perhaps fifty years ago, women were living in a gender-oppressed world where they were confined to the private sphere where the state offered them little protection. However, over time, anti-discrimination and equal opportunity laws have been enacted and women have become much more prominent in the public sphere. Women are now nearly as active in public-sphere as men, so the structural inequalities of gender bias is becoming less of an issue as time progresses and values change. Also, if laws were enacted to benefit women because they are women, would this be a discrimination against men? Because a person is either male or female, it would be very difficult to establish laws that address a specific gender whilst maintaining fairness, so perhaps the best way to go is just to treat everyone the same and let individuals work out what is best for themselves.
The argument from a critical race theorist is that formal equality can only do such much to stamp out more blatant forms of injustice through the ‘harm principle’ but does little to relieve the subtleties of everyday racism. The issue of racial discrimination is especially prominent in Australia, where Aboriginals are at a significant disadvantage within society. They are in general less educated and have far less wealth than other groups in the community. A formal equality approach would no doubt cause severe hardship for Aboriginal sectors in society and thus to achieve real ‘equality’ the state must provide welfare to these people to try and achieve a state of substantive equality. Where liberalism fails to account for the hardships of these minority races is due to the concept of ‘colour-blindness’. Although liberalism tells us to look past colour differences and treat everyone as a human being, it ignores the fact that there are existing differences between races. The attempt to see all people as ideally equal is a mere distraction to the truth that people are not equal in their material conditions. To quote Davies, "colour-blindness simply obscures the fact of white supremacy, because it permits officials, decision makers and ordinary people to believe in an illusion of equality and operate in accordance with ‘universal’ norms which are in fact designed for, and skewed towards, the white majority." Aboriginals have had a system of law which is significantly different to their own forced upon them and been told that they are treated as ‘equal’ to everyone else, but if they do not accept this law, can they really be treated equally as everyone else?
Justice is another key element in liberal thought. However, there are again different views as to what really constitutes justice and distinctions are often drawn between formal and substantive conceptions of justice. A formal conception of justice tends to tie the notion of justice extremely closely with the courts and adversary system. The court is seen as the unbiased mutual interpreter of the law and will always reach a just outcome. As we can see once again, the problem arises from the fact that notions of liberalistic justice are derived from a white-male conceptualisation. Examples of how our justice system can lead to injustice are the attitude towards women in rape and domestic violence cases, as well as the treatment of Aboriginals and asylum seekers within the court process.
Whilst justice, like liberty and equality tries to ensure that everyone is treated in a fair way before the law, in practice this is far from what really happens. Feminists have argued that injustice to women in ‘gendered harms’ such as in rape trials and domestic violence cases occur far too frequently. In a rape trial, the woman is brutally questioned by the defence council, who are often making up their own gruesome and offensive version of what happened to the jury whilst only allowing the victim one word responses. Similar injustice occurs with regards to domestic violence. Because of the liberalistic and male dominated concepts of the private and public sphere, the woman is often trapped in the home, or private sphere, and is unable to look to the law for help, or the law simply ignores her when there is abuse taking place.
Like women, minority groups within our community, especially Aborigines often suffer extreme discrimination and injustice. Aborigines are stuck with a legal system that is completely different to the one they had before colonisation. Many are unfamiliar with Western legal concepts and have little idea about our judicial process. One then has to ask, how can a system of laws be fair and just to a race of people who do not accept or practice it? Many of us would agree that injustice would occur if we were to be trialed under an Aboriginal legal system, and thus the reverse should also apply. Not only do they have difficulty in understanding the law in addition to difficulties with finding legal representation; they are among the groups of people who are most likely to have to encounter the legal process due to their position within society. Our liberal system of laws fails to take into account that they are not the same as everyone else as they suffer inherent disadvantages in recognising the laws and abiding by them. We must allow for discretions or other substantive measures when dealing with Aborigines rather than applying the strict enforcement of the law.
Assumption of Rationality:
The final underlying principle within liberalism is the assumption of rationality of individuals and governments. Rationality is the conscious thought and action based on logic, based on factual knowledge and aimed at objectives which are coherent, mutually consistent and to be achieved by appropriate means. A running theme within this essay has been that problems arise when we take what may seem like an admiral concept such as rationality, and then look which perspective the definition was taken. Everyone has different conceptions of rationality. What may seem rational to one may seem completely irrational to someone else. Of course, the dominant meaning taken for Western liberal purposes is that of the educated white middle-class male. This standard is used in many areas of law where rationality needs to be determined such as the ‘reasonable man’ test in tort law and the ‘ordinary person’ test in criminal law. The law has entrenched in itself a definition of rationality and what is ‘reasonable’ or ‘ordinary’ based on the interpretation by high court justices, whom are predominantly male. Thus, does everyone agree on the interpretation of rationality within our law? Feminists would argue that male and female definitions of rationality vary significantly in many different circumstances and a critical race theorist would say that the white dominated interpretation fails to take into account the ideals of other races. While these are decent arguments, we have to remember that the law cannot treat every individual in society separately or it would undermine the fundamental notion of equality. What it can do is provide remedy to certain groups, such as females or specific racial minorities who are severely disadvantaged by certain laws as best as possible whilst maintaining a cohesive and coherent system of law.
The bottom line is that there has to be a dominant thought within our society and it just happens that the white, educated middle-class male is the one Western liberal tradition has chosen. Our system of laws was created to try and establish a fair and free society where people were treated as equals by the law and were not controlled by others or the state. The basic fundamentals were not created to intentionally to deprive other groups in society of certain rights and freedoms or seek to active discriminate. The fact is that some form of dominant meaning is required as a platform to base the principles of liberty, equality, justice and rationality. Liberalism also allows and encourages groups who feel that they are disadvantaged to speak out and tries to establish substantive rather than formal equality where applicable.
Thus, although the admiral concepts of Western liberal tradition may come undone when put through the vigorous critiques it receives, its concepts are still extremely admirable in that it offers Western cultures such as Australia an excellent platform on which to base its legal system. Of course not all aspects of liberalistic ideology can be implemented as it stands. Regardless, it certainly goes a long way in ensuring that most people in the society enjoy their own liberty and freedom and are treated equally and in a just manner before the law as much as possible.