Critique of liberal legalism

In what ways does feminist legal theory offer a more sophisticated critique of liberal legalism than other critical theories? Liberalism arose out of the ashes of feudalism and matured through the rise of capitalism, as new demands of equality were demanded. In a nutshell, it comprises of three principal ideas: rationality, the maximisation of individual liberty and the control of governmental power through law. In stressing the primacy of individual liberty, it is assumed that individuals in society are gender, race, class and age neutral.

Hence, liberalism is theorised by assuming the individuals in society are entirely equal and share the same characteristics. It is immediately apparent that society does not operate in this fashion. Liberalism similarly insists on the demarcation of the 'public' and 'private' spheres of life, where the State is justified in regulating the public sphere for the sake of public interest; and where the private sphere is a sanctuary by which individuals can retreat from the public sphere to live according to their desires, unregulated by law1.

However, this notion is fundamentally flawed because the law does regulate private choices on matters such as abortion2, sexual activity between adults3 et cetera. It is on these assumptions that liberalism has strongly been criticised. Feminist legal theory has its roots in the women's movement as it developed and flourished in the late 1960s and 1970s. In line with the general feminist approach, it looks at ways which the law constructs, maintains, and perpetuates patriarchy and seeks to undermine and ultimately eliminate this patriarchy.

It started as a breakaway from the Critical Legal Studies Movement5 and hence was also concerned in providing a "basic critique of the inherent logic of the law, the indeterminacy and manipulability of the doctrine, the role of law in legitimating particular social relations, the illegitimate hierarchies created by law and legal institutions6. " Modern feminist theory is divided into four main divisions: liberal feminism, radical feminism, cultural feminism and post-modern feminism.

These divisions are linked not only by their belief of the patriarchy in law and the push for gender-neutrality, but also by the three features in feminist legal theory: by 'asking the woman question', feminist practical reasoning, and consciousness raising7. It is by using these three approaches that liberalism has been criticised. In the 'asking the woman question' approach, the direction put forward was to "identify the gender implications of rules and practices which might otherwise appear to be neutral or objective.

It examines how the law fails to consider the female perspective in terms of characteristics, experience and values. It also looks at how existing legal standards and concepts disadvantage women. This question approach is favourable because it is a method of critique that looks at facts and then applies itself in a clear, non-abstract way. According to Scales9, this means that the feminist method not afraid to tear at 'accepted' social norms and to be critical about them in the support of its beliefs.

It also means that in using this approach, there will always be relevance and pinpointed, subjective analysis. The practical reasoning approach is based on the fact that women are generally more sensitive to situation and context and are not confined to the norms of society or generalised thought. It employs a mode of reasoning arising from context, which appreciates the difference between persons and values the experience of the unempowered.

Women claim to use what they experience day to day which they believe should not be ignored for the sake of vague interpretations of justice. An example of this is the feminist belief in the communitarian nature of society. In criticising writers like John Rawls10, who had strong views about the primacy of the individual as an atomistic being, feminists insist that the individual can have no identity or rights other than within connections and relations created within the community.

In this way, by taking into account the greater diversity in human experiences and competing claims within a commune of people, this method reveals the moral and political choices underling the positional partiality taken and hence allows it to recognise the implications for distribution and exercise of power. Lastly, the consciousness raising approach is seen as a method of expanding perceptions by interacting and collaborating one's experiences and making meaning of them with others by sharing these experiences.

By exploring common patterns that emerge, feminists are able to present a more empirical and realistic picture of the deficiencies in law. This, as purported by writers, is a more favourable experiential point of view rather than the male constructed, view from the top look at jurisprudence without personal experience. The feminist methods mentioned above are subjective in its criticism, having the belief that to be objective just promotes inequality. In this aspect, feminist method is not afraid of being criticised as partial to its beliefs and in the course of its arguments, proceeds by an admittedly non-neutral method.

Personally, I agree with Scales, that only by being radical, and by taking one aspect of the multi-faceted society at a time can we truly discover the meaning of law to the different parts of the world we live in, rather than a general understanding. However it would be a blatant misstatement if feminist legal theory were said to offer the most sophisticated critique of liberal legalism. A simple example would be that the four schools of feminist thought often present differing views that sometimes lead to contradicting perspectives. Which is the best critical theory? The jury is still out on that one.