Legal Feminism: Activism, Lawyering, and Legal Theory

By Ann Scales | Go to book overview

4
The Limits of Liberalism

How she longed to get out of that dark hall, and wander about
among those beds of bright flowers and those cool fountains, but
she could not even get her head through the doorway; “and even if
my head would go through,” thought poor Alice, “it would be of
very little use without my shoulders.”

—Lewis Carroll, Alice in Wonderland

So far, this book has criticized some of the conventional ex- planations for legal power that initially attract lawyers, judges, and stu- dents. In chapter 1, I related how institutional justifications—such as the magisterial invocation of “the rule of law”—are meaningless with- out commitments to the principles implied thereby. In chapter 2, I de- scribed how approaches regressing always to radical doubt need to get over themselves in order to be helpful in legal disputes. Allowing that doubt will always be with us regarding particular questions, I focused in chapter 3 on how what we call “facts” are themselves elaborate social constructions that serve existing economic interests. In this chapter, I expose the empty refuge of philosophical liberalism—the structure by which law lets us live in our heads.

Given the difficulties described so far, one wonders why the U.S. legal system has worked at all. I believe U.S. law can attribute apparent suc- cesses to the pervasive and usually invisible theoretical underpinnings of “liberalism.” It is the unofficial politics, ethics, and psychology of the United States. “Liberalism” is simply a philosophical theory, born of the eighteenth-century Enlightenment, reappearing in multiple incarnations since. It is important not to conflate philosophical liberalism with polit- ical liberalism. Indeed, those who in daily politics we call “liberals” and “conservatives” are all philosophical liberals who agree on almost all fundamental ideas, and whose disputes occur within a narrow field. Three attributes of liberal government have given it staying power: its

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