In theoryIn theory
“As a political theory, liberalism is systematically ambivalent. In its historically dominant version, it holds that maximum individual autonomy is the highest political good; that value preferences are purely subjective and arbitrary, hence none is more worthy of encouragement through social policy than any other, and that individual behavior is largely intentional rather than deterministic, so that people may justifiably be rewarded or punished for their actions, rather than seen as products of their upbringing and social environment. But each of these elements has a dialectical counterpart: that embeddedness in a supportive community is the highest good; that some desires are healthier or higher-order or more natural than others; and that heredity and environmental influence frequently, if not invariably, determine behavior. This philosophical ambivalence is reflected in a systematic tension within the law: i.e., between rules and standards, the two main forms of legislation. Rules are precise and allow for a minimum of interpretation (e.g., ‘motorists must always observe posted speeds and stop at red traffic lights’). Standards are flexible and allow for maximum interpretation (‘motorists must exercise reasonable caution at all times’). Both forms have disadvantages: shouldn’t it be permissible to go through a red light on a deserted street at 3 AM? And what if a judge or jury takes a dislike to a defendant—isn’t the open-endedness of ‘reasonable caution’ practically a license to indulge their prejudices? . . . [T]he law is so full of quirks, inconsistencies, and ad hoc solutions because it must try to incorporate, while concealing, the secondary, non-individualistic strain of liberalism. The legal system must incorporate this version of liberalism, because the primary, individualistic version is too rigid, too brittle, to accommodate all of reality. But it must conceal this incorporation, because atomistic individualism is the moral and psychological underpinning of competitive capitalism, and the legal system must pretend to enshrine it. . . . [E]ven the good faith of the privileged is bad faith: they are self-deceived, however innocently, to their own advantage; the rest of us are deceived to our disadvantage.” – George Scialabba, “A Guide to Critical Legal Studies”