Liberalism, Feminist and Marxist Legal Theories - Coursework Example

1. Introduction Through the world, it seems that boundaries have continually been challenged throughout history, and more recently they seem to be undergoing notable pressure particularly from economic, political and cultural forces. Thus, within the globalization and post-colonization processes, some institutions and states, mainly focused in the West, continue to retain some hegemony around the globe. Besides, it still true that the West has accumulated continually the most influence in defining the economic, political and social processes that contributes to globalization. And, it seems apparent that women and children are the principal victims of such processes and lack equal bargaining power. However, in such an unequal balance of power relations and structures of authority, a universal system of just standards and values seems most urgent in order to have a systematic way to regulate and judge moral and political processes. In other word, define systematically, a rigorous definition and perception of right. In fact, thinking about individual and collective rights can be shaped by our language but also by our historical perceptions about how and where rights emerged in western jurisprudential thought. Basically, individual rights is a legal term referring to what one is allowed to do and what can be done to an Individual. Police states are generally considered to be oppressive because they offer their citizens few Individual rights. In the following, we will discus the claim that “The individual in western liberal theories of law is vacuous, circular and inconsistent. It could not be anything else because humans only ever exist in specific sociohistorical, linguistic and ideological contexts” through Feminist and Marxist legal theories. Indeed, it seems important to give in first a short overview on the context in which those theories are involved regarding the general concept of liberalism and individual and/or human right. 2. Overview on liberalism and human right Liberalism can be understood as (i) a political tradition (ii) a political philosophy and (iii) a general philosophical theory, encompassing a theory of value, a conception of the person and a moral theory as well as a political philosophy. Liberalism is generally viewed as a tradition that has been born out of many ideas of several thinkers and of several social situations, but it is mostly characterized as part of the western tradition. It can be seen also as a reaction to and attempt to reverse oppression which restricts people’s freedoms. Regarding the liberalism, Humans are basically unencumbered selves with the ability to think rationally and make choices about their “own” beliefs about the good life. Within this tradition, the self is viewed as a predominantly atomistic and individual’s entity rather than an entity that is fully encumbered in particular and community based and familial attachments. And so, fulfilment in life is achieved by thinking for one’s self and developing one’s own rational capabilities [1]. According to liberalism, all humans have an inherent equal worth or value based on their basically equal capacity to think rationally. And it is this basic equality of rational capacities justifies claims to equal rights [2]. Rights that are usually supported by liberalism are usually freedom of speech, information, conscience, association, expression and privacy. These rights are supposed to be available to all individuals without the character of person or group affiliation. These rights are a necessary condition for the good life. In reality, liberalism is filed more as a theory about freedom of the individual than as a theory about equality. It said more on freedom of thought and expression than about equality among individuals. As such, the problem of inequality-whether economic, racial, or sexual is sidestepped. The promissory aspect of liberalism arose during the latter half of the twentieth century. The premise of the civil rights movements in the United States, as well as various dissident movements internationally, supports the western liberal notion of individual freedom of expression and equality before the law. Worldwide feminist movements are also based on this1 notion (i.e. the right to vote, to abortion, to equal pay, and so on). Benn (1988) state that in the contemporary world, the idea of human rights makes moral and legal claims even thought its claim to universal morality is problematic [3]. All of the related concepts are deeply implicated in law and legal judgment. In law, just as in society, it has become plain that a single unitary political, ethical, theoretical framework is too crude; it cannot contain the diversity of the groups and the subjects to whom our legal institutions need to respond.  These questions go to the heart of the legitimacy of the individual and human rights claims. In that sense, Most modern legal theorists seek to limit their enquiries to a particular sort of law, on the assumption that law is necessarily restricted in its interactions with other social practices. Margaret Davies deliberately — and provocatively — questions the usefulness of such “positivist” dogmas, asserting that the law can and should be seen as multi-dimensional. She argues that the law is everywhere — in metaphysics, the social environment, language and the psyche [4]. In a persuasive meeting of post-modern discourse, deconstruction, feminism and legal theory, Davies creates new ways of thinking about the law by creating links with other practices and disciplines where none previously existed. This is a powerful critique of the ideology and theory of law in the West, providing a much needed link between conventional legal philosophy and modern movements in legal theory. In the following, we propose a framework that may contribute to thinking through a Feminist and Marxist legal theories regarding the place of the individual and human right in the western liberal theory law. 3. Feminist legal theories The different theories of feminism are widely acknowledged and treated in women's studies. It is recognize that people have created their own definition of feminism to best suit them. The definitions here are theoretical, and are an example of the diversity among feminists. Feminism is theory that men and women should be equal politically, economically and socially. This is the core of all feminism theories. Sometimes this definition is also referred to as "core feminism or "core feminist theory". We notice that this theory does not subscribe to differences between men and women or similarities between men and women, nor does it refer to excluding men or only furthering women's causes, contrary in most other branches of feminism. 2 As assigned above, it is not the purpose of this essay to illustrate explicitly the philosophy of the various feminist theories, but it still important to summarize briefly its concepts here that will help us to have a clear idea in the following discussion. Among the most important theories, we can distinguish the liberal feminism, socialist feminism, radical feminism, post-modern feminism, and multicultural/global feminism. Through the liberal feminism concept, it is claimed that all people are created equal. However, in the guide line of western liberal theories, and focusing on liberal feminism, it is notable to assign that liberal feminists agree with these concepts in principle but argue that all societies, even those that are traditionally based on liberal values, have often excluded women from participation in society and the fulfilment of their rights. Therefore these societies have oppressed women by restricting their freedom and their political rights. Beyond the embracement of the liberal feminists of liberal principles, it is argued that women should receive equal political rights and status with men. They demonstrate that women have the ability to reason equal to that of men and so have equal moral worth as individuals. Flax (1995) states that according to them; women have been oppressed as a group and been limited and restricted because of their sex [5]. Women have traditionally been discriminated against in all areas of life especially the economic and political realms. And so, Liberal feminists advocate such things as pay equity across the sexes and women’s economic independence, because without these, women are unable to exercise and enjoy their full political rights and to obtain equal bargaining power with men [2]. It is this sense of ongoing conversation and reflection it could be said that the conviction will be one of the driving forces behind a desire to look at feminism beside it. The concept of «Feminism beside itself» presents a certain anxiety within feminism, an anxiety brought on by feminism’s very success and public visibility. In same time, with success came recognition of certain failures regarding if feminism’s success could continue as projected. However, Conventions have examined the purpose goodness, but how much longer could, can, and feminism’s continue its string of successes?3 It is clear that this is not a bad problem to have, insofar as feminism’s success is something to be celebrated. More precisely and more significantly the problem for feminism lies in the difficulty it seems now to be having in the wake of those successes. Feminism is, as it were, going through a sort of mid-life crisis, perhaps fighting but also succumbing to the stereotypic conventions associated with such a phase. Feminism has reached a point where it is not clear what it understands itself to be: What exactly is feminism? What are its aims? Its goals? How can and should its history be told? Putting feminism beside itself means thinking about these questions, thinking about how feminism reflects on its own identity, its own goals, and its own history. "Being beside itself" is a form of self-consciousness, a self- reflection on the part of feminism that would not, however, signal that feminism would only look at itself and stops doing things [4]. However, in a sense, we already are in the future of feminism, and living now living in what the future used to look like. To say "future" here is, however, not quite right. The future is better thought in the plural, for to speak of "futures" holds open the possibility of many different futures [4]. And if we are to think in terms of futures, we should also think in terms of feminisms. Feminism is, in a sense, already divided from itself, beside itself, and marked as plural. The issue is not so much the future of feminism as it is the futures of feminisms. Today it is not easy to see a common front in or for feminism, and how to negotiate these differences may itself be one of the futures of feminisms. 4. Marxist legal theories Marxism is a set of theories, or a system of thought and analysis, developed by Karl Marx in the nineteenth century in response to the Western industrial revolution and the rise of industrial capitalism as the predominant economic mode. Like feminist theory, Marxist theory is directed at social change; Marxists want to analyze social relations in order to change them, in order to alter what they see are the gross injustices and inequalities created by capitalist economic relations. My capsule summary of the main ideas of Marxism, however, will focus on the theoretical aspects more than on how that theory has been and is applicable to projects for social change. In that sense, Margaret Davies states that “There is a tension between envisaging fundamental social and conceptual change and the necessity of negotiating with a system of oppression which just keeps on reasserting itself” [4]. As a theory, Marxism is pretty complicated. You can think of Marxism as being three types of theory in one: philosophy, history, and economics. The first principle of Marxist legal theory is a fundamental opposition to law. The law for a Marxist is a barbaric expression of state power and as such must be transformed Proletarian dictatorship is thus intended as a temporary condition to permit the reform of the capitalist class and to allow the state to evolve first towards socialism and then to disappear as it is gradually replaced by voluntary communism. The key to understanding Marxist critique of law is to resist all forms of historicism and to dispel all teleologies of progress. Since, the contribution of Marxism to our understanding of law lies in its determination to uncover the social relations expressed, mediated and obscured in such legal categories as private property, state property, constitutional governance, representative government, and the like. Marxist social theory investigates why and with what consequences social relations assume determinate legal forms. The question now is if has Marxism a future, now that communism has collapsed throughout Eastern Europe and is in crisis everywhere else? It is often said that Marxism is discredited and refuted by various events from which some Marxist in the West ignore the triumph of capitalism and the free market, and would like to believe that history has not yet begun. For them, socialism is still a distant dream. The old regimes of the Soviet Union and Eastern Europe had nothing to do with true socialism. Their demise, therefore, has no bearing on Marxism: no rethinking is required. Beyond the debate between Marxism and capitalism that we can’t develop here in detail, we would say that the economic and social conditions which, in the past, drove capitalism into crisis have not ceased to exist. The contradictions which, Marx argues, are inherent in capitalism are still present. These are most evident in the Third World, where many still live below subsistence level and where the conditions for revolution are ever present. And, it must be remembered, the capitalist system includes much of the Third World. Those who talk of the triumph of capitalism tend to forget this, and think only of advanced capitalist societies. On the other hand, what gives plausibility to the view that Marxism has been refuted is not its account of capitalism, but rather the crisis in the socialist world. It is these events which cast doubt on traditional ideas of socialism, and necessitate a basic reassessment of Marxism. However, beyond the social and political issues within the Marxism theory, it is rightly insisted that there is more to full and genuine democracy than the existence of the rule of law and a pluralistic political system. However, through the history, there are two important lessons for Marxism in all this. First, if socialism is, indeed, a `transitional' stage, then the process is going to be far lengthier and more problematic than envisaged by Marx. Second, during this period, socialist societies will continue to be divided into conflicting groups, and socialism must involve a political system in which their different interests can be effectively represented. If Marxism is to be of any use as a theory of socialism, then it must tackle these issues, rather than functioning as a form of state propaganda which denies them. This mostly when these particular intended changes are driven by the position on law concept assigned above. Thus, even a social political and economic life is needed, and become quite obligatory in the contemporary world, the Marxist theory as presented in it original concept can play a role as some source of social and individual justice concept, but can not be adopted intrinsically as a social and political system of life and governance. 5. Conclusion Through this essay and the ideas driven by the feminist and legal theories and Marxist theories, that there is no a unique example of law and social/political system that can be used universally regarding the cultural and historical diversity. Indeed, a moral conception of individual and human right could be defined and adopted differently regarding the local reality, and the freedom of choices regarding it present and future as well at individual as at group and/or social level. References [] Ake, C. 1987. “The African Context of Human Rights,” Africa Today, 34:1-2. [2] Jaggar, A.M. 1983. Feminist Politics and Human Nature (Totowa, NJ: Rowman & Allanheld. [3] Benn, S.I. 1988. A Theory of Freedom. Cambridge: Cambridge University Press. [4] Margaret, D. 1994. “Asking the Law Question”, Sydney, Law Book Co, 22. [5] Flax, J. 1995. “Race/Gender and The Ethics of Difference: A Reply to Okin’s ‘Gender Inequality and Cultural Differences“ Political Theory 23:3, pp.500-510. 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