1. The liberal understanding of the public/private distinction in view of critical legal studies and feminists.
There was for many years no dichotomy between public and private law in our legal culture. Over the years it became clear that these two spheres infiltrate each other. The Public law aims to protect the public interest with state interference whereas private law aims to protect the private interests which ultimately requires no need for the highly paternalistic and regulatory state as it focuses on the aggrieved individual or corporation. The question remains, should certain activities be considered “private” and thus presumptively beyond the legitimate sphere of regulatory, paternalistic power? And, what activities should be considered private and why?
2. Critical legal studies
Critical legal studies (CLS) reintroduced the work of the Radical Realists which looked at the different objectives of judges and how they interpreted the law. The realist came to the conclusion that rules were set out and applied to the facts formalistically by judges to come to a decision. The realists contended this method because judges need to analyse previous cases to examine the judicial decisions made by that judge. The courtroom must not be a systematic environment but judges must interpret the law from different perspectives. CLS takes into account political, social and economic factors which influence judge’s decisions. It critiques the idea of formalism emphasised by the liberal legal regime. It also denounces the idea that ‘law’ is an autonomous institution independent of any outside influences. It exhibits the notion of ‘false consciousness’ which is described as an illusion through certain thinking patterns. An example of this in the South African context is the apartheid era which was incoherent and indeterminate. White people never questioned the structure of society during this period because it was to their advantage, thus the ideology was that society was the way it was because it had to be that way. This placed the apartheid society in hierarchies with no legal justification because it was the liberal way of thinking that it was natural and necessary to be that way. Many times rules show the interest of the rich and not the ordinary people.
2.1 Contradictions pointed out by CLS in Liberal legal studies (LLS)
2.1.1 False consciousness
CLS highlights the systematic repression of the internal contradictions of the liberal legal regime by criticising the formalism and objectivity and autonomous nature of the law. It tries to convince us that law is indeterminate . According to liberal legalism, on the one hand it is possible to have a mechanical application of the rule yet, it is also possible to have a situation of specific ad hoc standards. This is countered by Duncan Kennedy, he says that rule standard dichotomy is inherent in liberal legalism and ,therefore, both possibilities cannot exist because rules stem from mistrust in the society and are individualistic, whereas, standards stem from the love for one another and are altruistic being shared conceptions of the society and their moral values. As a result, rules and standards cannot be parallel in cannot be both committed to in a legal system.
2.1.2 Formalism hides contradictions
Rights are mechanisms by which liberalism tries to cover up the contradictions. Rights by definition are, “an assertion of freedom in abstraction from social conditions without actually determining the nature of that freedom”. However, all rights have limitations and the values thereof cannot be comprehensively defined because it is defined differently from person to person. Moreover, rights give an individual power over others thus this alone contradicts the liberal ideal as the freedom to act without harm cannot be fully realised as some rights empower individual which may violate another’s being without knowledge thereof. An example is the law of contract where contractual consent is coerced through superior bargaining power and this is seen in everyday life through hire purchase agreements as the client is in a weaker position and has no real choice thus this contradicts freedom of contract. Another example is property law when an individual is an owner of a property and attains all rights and entitlements that come with it. If a poor person is squatting on the individual property without consent from the owner, the owner automatically feel empowered to evict the squatter with (sometimes) force or through state channels but this is because the owner feel superior of the squatter and instead of engaging in a conversation with the squatter the individual disregards the squatter and this displays the unequal relationships formed by rights. As such, CLS tries to break open that power relationship through the destabilisation of rights and breaking open those hierarchies formed directly out of the apartheid era. Thus property rights allude to a pre-social and pre-political inviolable liberal view that private property is a privilege of the rich however, it would otherwise be more efficiently used if it was seen as communal.
2.2 Factors which influence the legal system
The legal system is part and partial of the socio-economic and political nature but not independent of them. CLS rejects the idea that law is of an autonomous nature. They regard the law as a political choice and social decision-making process. There is the notion that judges and lawyers are compelled by certain influences and cannot be immune to these influences. The way law schools are designed and the dominant perspective of the legal education plays an important role in how the lawyer will be. However, this cannot be viewed critically as it does not comprise of other perspectives. Roberto Unger progressed the reconstructive idea of CLS to have a more liberal decentralised system in which individuals have more room to adapt to the system and potentially change it.
Karl Klare was an author of critical legal studies (CLS) and he denied the legitimacy of searching for a sphere of activities defined at “private” and thus beyond state’s power. All is public because it is impossible to conceive of social, economic life apart from the government and the law. He believes that public and private law rhetoric tends to “channel democratic aspirations into the framework of individualistic rights”, and acts as a cover to justify class hierarchy. The social function of the public and the private distinction is to repress aspirations of alternative political arrangements. I am curious as to whether Klare’s disdain for the distinction between public and private extends to the sphere of intimate relationships. The question then is, should an individual have substantive rights that can shield their consensual sexual conduct from the government? And if so, who defines those limits because the state itself creates the law defining private rights.
CLS is criticised for trying to undermine the mainstream legal liberalism without substituting any positive alternative.
Feminists cannot fit into John Locke’s schema of freedom and equality because it fails to address women’s biological and historical circumstances. John Locke was the founder of liberalism. Locke’s argument against patriarchy does not go deep enough and cannot promote equality and autonomy. Subsequently, he justifies the authority or men by not challenging their authority and thus enslaving women. He distinguished private spheres as family, religion from the public sphere of politics in an attempt to understand the unique relationships. Feminist legal theory attempt to explain how the law plays a part in women’s subordinate status. The sexual division of labour occurred when labour was drawn out of the private home into the public workplace. Women felt the need to be recognised and learn to be an end in themselves and also be seen as a rational agent who has a capacity for self-determination.
3.1 Liberal Feminism
Liberal feminists (LF) contended the patriarchal system. It was important that women also became political agents and thus needed the right to participate in the public arena. LF evolved largely in the United States and Britain. It focuses on the achievement of equality between men and women and it contends that patriarchy allows women to work in an only feminine trade. They felt that the extension of reproductive work from the household is problematic as it limited women instead of allowing them to cultivate their minds and equally participate in ‘male’ trades. Moreover, women are responsible and able through education to become more empowered and democratic citizen’s who are equal to men in the eyes of the law. They also contend that all human beings possess a common nature- equal in sex and gender and equal chance to develop themselves by developing skills. Society has this false belief that women are less intellectual and physically incapable than men thus being excluded from equal opportunities.
There are two kinds of liberal feminism namely, classical liberal feminism believes that ideas of political and legal rights of women must be promoted without government regulation in all aspects of their lives. On the other hand, welfare liberal feminism believes that the government must take responsibility for its citizens and take up certain measures to progress women’s needs such as maternity leave so that they can equally partake in the productive workplace. Thus the market must be regulated to address specific needs and ensure that profits are distributed equally and the government plays an important role in setting out legal frameworks and interventions to realise these rights.
3.2 Criticism of liberal feminism
3.2.1 Invisibilise sexual differences
Many find the approach limiting and unable to advocate for women in a broader context or different society. The liberal feminist has the tendency to accept male values as universal values which consequently push women to aspire to masculine values. They tend to accept ass the truth the priority of the mental over the bodily even when their own daily experiences contradict this belief. Therefore, how can sexuality be invisibilised? The liberal feminist claim that women can become like men if they set their minds to it which ultimately invisibilise sexual difference. They also claim that most women want to become men and that all women should want to be like men, to aspire too masculine values, but this does not allow for individualism or difference. Furthermore, despite individual difference, we still live in a patriarchal state and institutional changes are in itself insufficient to give women equality in society. Another flaw of liberal feminism is that it is ignoring other races and cultures of women by only focusing on white, middle-class, heterosexual women.