MOST OF THE INSTITUTIONS WITHIN WHICH WE LIVE OUR LIVES ARE MANIFESTLY ILLIBERAL
We all lives are governed by the institutions like law, government, religion, education, family, employment market and others. All these institutions tends to look towards the formation of a society. They do not say that society is made up of aggregated individuals but that individuals are the product of society. This is a conservative notion which is in conflict with the ideology of liberalism.
To look at all the institutions within which we live our lives and focus on their characteristics is beyond the scope of this essay. In this some of these institutions would be reviewed and their political approach would be examined. Where possible I would try and look at the whole institution on its own, but where the discussions about the whole institution is too broad, the focus would be on specific examples of the attitude of the institution. In case of law, I would emphasise would be on the laws treatment of women and how that shows the law approach to be illiberal. In religion I would be focusing on one kind of religion, Islam to show how all religions are conservative. In the same way focus in education would be on boarding schools. The rest of the institutions: family, employment, government and market economics are covered in singularity as institutions.
As I mentioned earlier the focus in respect to religion would be Islam. I intend to look all some of the basic rules and principles of Islam and examine their attitudes. Islam believes in the authority higher then humans. It believes in the sovereign power of God which is called Allah in the religion. He is suppose to be higher than all the other beings in the world. He is referred in Quran (Muslims’ holy book) as the Creator and Sustainer of lives. This means that all the human are dependent on Him for their living. This is against the liberal theory, which believes in all beings, being equal. Thus, this concept of higher authority brings out the conservative attitude of the religion.
Allah is the ultimate authority in an Islamic society and all the rules and regulations emerge from him. There are two kinds of duties that a Muslim owes one to Allah and the others to his fellow beings. The duties owed to Allah are Tauheed (believe in oneness of God), Salat (five time prayers), Fasting and Haj (the annual pilgrimage to Mecca.) Those owed to his fellow human beings are numerous, as individuals have certain duties to fulfil in different relationships for the building of a society; but each individual has the basic duty to pay Zakat (a portion of their income to help the poor.) This goes towards the building of a homogenous society, where Muslim society as a group has to be supported so those individuals arising from that society are on as much of an equal scale as possible. In this way Islam realises the hierarchy in a society, where some individuals are more powerful than the rest. They have more resources and the others in the society, and the religion promotes the use of those extra resources for the use of the weaker ones in the society.
This is completely against the liberal idea, which says that all individuals are equal and have the same governing power. Islam does not believe in formal equality, which strips the individuals of their difference and puts them in the situations that are more adverse to their situations then the illiberal ideas. It recognises the difference that exists in the society and tries to help individuals those bases by making a stronger society, which would support them.
Zakat is an obligation, which every earning Muslim has to fulfil, but there are other duties, which are specific to the position one occupies in the society. A ruler is responsible for his subjects well being, he has the responsibility of making sure that all his empire have food and everyone is being treated fairly and justly. In the same way, people have the responsibility to choose the ruler who would abide by the Islamic principles. Parents have duty to take care of their children, and in return of this duties children owe complete obedience to their parents. There is Prophet Mohammed (P.B.U.H.) saying that:
A child should obey all of his parents commands, unless they ask him to give up his religion.’
It appears to be a patriarchal relationship where Parents have complete control over their children because of the support they give him when they are growing up. There is no concept of equal bargaining powers or negotiations in this relationship. Parent and child are not acting as two individuals that can negotiate the terms of contract, one is automatically dominant over the other to his position in the society. These along with all the other rights and duties make an Islamic society, which is not only illiberal in its ideas but which tends to bend toward a conservative notion of society before individual. The essence of all the duties and obligations of a Muslim is explained in the following verse from Quran (Muslim’s holy book)
Verily, Allah enjoins Al-Adl (i.e. justice and worshipping none but Allah Alone – Islamic Monotheism) and Al-Ihsan i.e. to be patient in performing your duties to Allah, totally for Allah’s sake and in accordance with the Sunna (legal ways) of the Prophet p.b.u.h. in a perfect manner, and giving (help) to kith and kin (i.e. all what Allah has ordered you to give them e.g. wealth, visiting, looking after them, or any other kind of help, etc.): and forbids Al-Fahsha (i.e. all evil deeds, e.g. illegal sexual acts, disobedience to parents, polytheism, to tell lies, to give false witness, to kill life without right, etc.) and Al-Munkar (i.e. all that is prohibited by the Islamic law: polytheism of every kind, disbelief and every kind of evil deeds etc.) and Al-Baghy (i.e. all kind of oppression), He admonishes you, that you may take heed.’
This shows that the society comes before individual in the Islamic society. Islam is reflection of other religions in many ways. It promotes the idea of higher authority, doing good for the society and refraining from evil. Most the religions propagate the same principles, thus, it would not be wrong to conclude that the religion is an illiberal institute.
Law is the second most powerful institute that governs our lives as is apparent from the following words. “Not under Man, but under God and Law.” These words reclaim that the law is the supreme authority after God. The question is if that is so, then who makes the laws and are these laws interceptive with all the existing ideas in the world. The origin of all the ideas in legal code has been The Rule of Law.’ Then the questions we should be asking are: Who developed the Rule of Law? What principles regulate Rule of Law and whose interests does it work in?
Rule of Law has originated from the male belief that all human beings are separate from each other or popularly claimed separation thesis’. It believes that all the individuals should be treated as autonomous and everything should be separated from the relationships and context that it takes place in. This is a liberal belief that has emerged in the legal profession, which supports the individual over the society. This thesis has its advantages as it believes in the freedom and individuality of human beings. The disadvantage of this theory is that it ignores the concepts of interpretative and hermeneutic dispute resolution used by women. This makes it a complete masculine thesis, which is unrealistic and irrelevant to the female analysis of problems.
Legal Theory is about actual, real life enacted and legislated and women have from the male inception, lacked the power to make law protect, value or seriously consider their experiences. This is because the males have dominated the process of law making. Parliament is the supreme law making body and the majority of it is constituted of white, upper middle class male. The class of male which has dominated over not just on bases of gender but also on race, class, colour and creed. They have found ways to keep their control over women and called it awarding privilege to women.
Humans of both legal and political theory are male. Men have shaped the law, defined it, and interpreted it as a patriarchal form of reasoning. The conception is apparent in all fields of jurisdiction. Labour laws always relate to the work done outside the home. This automatically excludes most of the work done by the females. The male labourer is the prototype of the labourer and the issues in labour law are related to him alone. In criminal law, criminal is always male, therefore women are doubly divalent. In defence law, the male view on self-defence is taken as the norm. Contract law is all about market and outside world and does not take in consideration emotions that are so important to the female way of resolution. Tort law is all about what kept people out of the work and what the monetary value it had.
The allocation of rights and responsibilities reflect the common sense view of the things, but the common sense view is the male’ view, rather than the female scope of human relationships. Justice is almost solely expressed in terms of the reasonable man’ and has no higher claim to universality and neutrality. Judges and writers always have male in the eye when they apply reasonable man. This reasonable is also almost always applied by the predominantly white male judiciary. It leaves a lot to be questioned about the reasonability of this reasonable man and the extent to which it is effected by the sex, class, race and other social classification.
The legal attributes of the reasonable man and his ability to separate him self from the emotions and sentimental considerations are a male characteristic. It is completely oblivious of female way of looking at things. Women are irrational and emotional in their decision making in the male conception then, the law that governs them should take that in consideration. The challenge for the feminist is to argue on the practicality of the definitions of rationality and irrationality. Gilligans work suggest that young boys and girls use different methods of dealing with dilemmas and is suggestive of the differences in reasoning applied by males and females in the dispute resolution. She argues that the resolution of dispute, which takes relationship in consideration, is equally well developed as right based resolution.
“We need to shift from a right-based focus to a focus on both care and rights, justice from power on to empowering, from priority of the market and money to a priority of personal relationships, health, safety and human dignity in deciding personal injury disputes.”
This is important to do as the effects of these differences are of significance to the lives of females as Deborah L. Rhodes says “the crucial dilemma is not the difference, but the difference difference makes”. Women distinct form promotes to a distinct form of understanding and any rules that govern women should reflect that. The legal language also influences this diminishing presence of women in law. The law language is pro dominantly male. The reasonable man, mentioned above is the dictator, the interpreter, and the translator of this virile orientated system. Linguists of the law have been men- white, educated, economically privileged men, who have not only written law in a masculine view but also insist on its interpretation based on masculine boundaries.
The problem is not that there are not enough laws, which reflect on the well being or try to solve the problem related to the women. The problem is that subjectivity of female in the law is reflected through the male eyes. The male belief of her understanding, her nature, her capacity and her experience is use to govern the issues related to her. The way in which the law judges the cases is also masculine. That is, it brings out the perspective of judges’ point of view of right and wrong rather than feminist approach of dispute resolution, which relies on the context, and sincerity of relationship. Feminist view is to look at the conflicts in interconnection, where as legal way is to individualise issues. The case of sexual harassment is judge on what the accused thought the woman’s reaction or actions to represent rather than what the actually meant. There are cases in which judges were made to interpret the law in relation to women perspective and they fail to do so.
The laws we have are a result of historical dominance of males. There is more than bias and incompleteness left behind due to precedence of male beliefs. These laws govern human beings and their relationships. These laws are masculine, as women view is not taken in consideration. Women are absent from jurisprudence because women are absent as human beings from law. The definition of human or a person in law excludes the women. In law she is not considered as a human, she is considered as something else- as an object, as children, as valueless or as invisible.
By looking at just this one aspect of the development of law, it can be seen that it does not treat all individuals equally even tough it claims too. This shows that law is not a liberal institution but is actually in chained in the doctrines of male dominance and female subordination, which defies all notion of equality between individuals.
Government is one institution, which is considered liberal due to the election of a government by casting of individual votes, which brings the nominated leaders of the individuals to the Parliament. However, there are number of peculiarities that thaw this liberal exterior of government. Under the present electoral system in the United Kingdom, each constituency returns a single member. Each elector can vote for only one candidate and the successful candidate is the one who receives the highest numbers of valid votes. This system of first past the post’ is know as the relative majority system since the successful candidates may not have an absolute majority of votes but merely a majority relative to the runner up. (in 1992 general election, 40% of the successful candidates lacked absolute majorities.) This system is simple, but as a mean for providing representation to the Parliament it is very crude. It makes no provision for the representation of minorities interest nor does it ensure that the distribution of seats in the common is representative of the seats in the commons is at all proportionate to the national distribution of votes. In Britain, the general tendency of the system has been to exaggerate the representation of the two larger parties and to reduce that of smaller parties; but even for the larger parties there is no consistent relation between the votes and the seats they obtain.(in 1983, the conservative party won 42% of the votes and 61% of the seats!) this is a completely utilitarianism system, which chooses the greatest good for the greatest number’ ignoring in the process the right of minorities in building of a stronger society.
The decision making of the government is also based on the principles of utilitarianism. when the government enforces the rules it does not take in consideration the individuals problems and ignorance. For example, if a person is found with drugs, he would be punished for carrying it irrespective of his knowledge about them or the circumstances that had made him commit the crime. The individual harmony is far inferior in the eye of Parliament to the harmony of the society. In the same way when the government introduces vaccination schemes it is aware that there would be some causalities; but since the schemes are beneficial to the society they are encouraged. The irony is that when these individual causalities occur liberalism is pushed into the picture, and the government discharges it self from any responsibility on the grounds that each individual had a freedom of choice on whether to get vaccinated or not. There is a split here, but this split seems to work for the state, which has more knowledge and power compare to the individuals who can not be taken as formally equal to the state.
Family is a another important institution in which we spend our lives. There are three set of powers in a family. They are the relationships between a) husband and wife b) parent and child c) master and servant. In all these relationships man is the dominant member. In this institute, I would try and concentrate on each of the relationship individually and then show how it makes the whole institution illiberal.
Marriage as a legal relationship between two individuals has been very illiberal in its development. In early 18th century, marriage was a relationship based on domination and subordination; in which husband was the dominant partner. In the previous century women was like a slave to men and once she was married, she lost her legally capacity as an individual. The law regulating husband wife relationship was governed by common law. In common law both had different functions. Husband was the wage earner and the wife was the childbearing partner. Until 1857, wife was treated as husband’s property. Wife was not responsible for her actions, and had no legal rights. Since husband was supposed to be responsible for her, he could constrain her. Husband was allowed to use the whip on his wife, if it was no thicker then the width of a thumb.
A husband could claim divorce if the wife committed adultery, as well as, claim damages from her lover for trespassing his sexual property; whereas, this remedy was not available to the wife. The wife could not even divorce the husband on grounds of adultery like husband. He was suppose to be the active member in the relationship and could maintain sexual relationships outside the marriage. Whereas, the wife was suppose to be passive partner and could be divorced on committing adultery, but was not even allowed to appear as witness if the claim was brought against her.
As Carol Smith puts it
“In the 1950s’ a wife’s lover was routinely compelled by the court to appear as a co-respondent in the case. The husband could then sue him for damages and could often recover any maintenance and the value of property given to his wife as alimony by extracting it from the lover. However, a husband’s lover could only be respondent in unusual cases and a wife could not sue her for damages.”
This shows the patrimonial attitude which was endured by women until late 20th century. It was not until as late 1982 that women was recognised as separate individual in the legal sense by the common law in judgement by Lord Denning in an historical case. It was in the 1991 that the courts recognised the possibility of rape in the marriage.
All these developments in the martial relationship has led to the liberal view that marriage is purely contractual agreement, where both the parties have equal opportunity to negotiate. However, this is not the view that common law tends to take. Common law tends to bend towards the idea that there is just one standard contract of marriage. If individuals want they may make the amendments in their own marriage and negotiate the terms but as far as the law is considered those terms will not apply. The contract that common law hold to be binding is same for everyone, and there is no place for negotiations there. The only choice that an individual has in this case is whether to enter the contract or not.
What liberals have done is that they have confused the private relations of the couples with the institution itself. The marriage itself is very patriarchal, and still very much about the domination of male over the female. This is because the law presumes that both are in equal free to make choices, of whether to work or to stay home, to own property individually or jointly, and to acquire assets. However, that is not the case as women earn only 70% of male income. Thus, males still remains the dominant wage earner and ultimately the decision-maker, whereas, wife is still responsible for taking care of husband, children and home.
In a modern society like England, the relationship between parent and child is non-contractual as well irrespective of what liberals would like to believe. A child does not choose his own parents in a market where he can bargain the best terms. He is brought into the world without any say of what type of parents he will have. There is no liberal idea of freedom and equality involved here, and if the society treated both the parents and children as individuals, it would be the most obscure thing to do. Children are dependent on parents in any society, and so is the case in Britain. Parents are the dominant partners in this relationship and this is even recognised by the law. Parents have legal rights over children because of the financial support they provide them. This defies the liberal idea of individuality, which says that all the individuals are equal and have same bargaining powers. The result of treating the Parent-child relationship as purely contractual would result in complete commotion and anarchy.
The third power relationship described by Aristotle in a family was that of master and servant. He puts this relationship in this category because of the economic set-up of his time. With the industrial revolution, the master-servant relationship has been replaced by employment contract. This contract is the strongest key to the liberal ideas which dictates that each individuals will make the best deal in the market and the ultimate result would be a better society. This liberal thought is the surface appearance of the capitalistic approach that believes people are like commodities sold in the open market and all have equal opportunity to negotiate the best bargains.’ The liberal ideology, which finds it origin in capitalism, is very superficial, as on the surface we are just exchanging commodities for money. However, this is not what happens in reality; reality is based on the elements of master-servant relationship of early 17th and 18th century.
To actually believe that all individuals have equal probability is to diminish from the reality. It is an obscure belief that a single individual would be in anyway equivalent to the big co-operate multinationals or that an employee in any organisation would have same bargaining power as the employer. An individual in the market has the choice of finding the best party available to make the contract; but that does not imply, that the party he has chosen is the best one for him. There is no chance for him to negotiate the terms if all the employers are offering the terms that are in their favour. An individual looking for an employment, only one choice and that is whether to accept the job on the terms offered or to have no job at all. Beyond that it all goes in the favour of employer. The irony of the fact is that the line between an opportunity to choose ones contract and to negotiates one contract is in favour of the powerful. This shows the liberal idea of freedom of contract is manipulated to the benefit of the dominant class, which swings it back into the domains of 17th century master-servant relationship. This is a relationship of subordinate and the dominant, which has more conservative element than liberal.
Open market is an institution, which has an adverse on our lives, we are mostly acting as consumers in one form or another in most of contracts. Liberal tends to view that individuals should be allowed to negotiate their own contracts and law should not interfere with the contracts all. They believe that each individual is formally equal and has the equal opportunity to negotiate the best bargain for himself / herself. However, this is not true, as each of us do not have equal resources and knowledge. This unbalance in power will automatically lead to contracts, which are one-sided; again with the rich and powerful taking advantage of the underprivileged. Looking at the inflation in the market, the graph is positively skewed towards the big multinational companies rather than the individuals. There is a very limited scope for liberalism in the market; it can only give individuals theoretical equality, which is deprived of any factual reality. The liberal surface appearance has an underlying conservative ideology, which governs the market.
Even the common law recognises this underlying conservative ideology. This is evident from the decisions made in cases where the judges have held implied obligations and dismiss exclusion clauses which may be of deficient to a particular party in contract. The legislation also recognises this and has passed Acts and Regulations, which protect consumer rights. UCTA and UTCCR are the two important legal codes, which protect the individuals against the unfair contract terms. This completes forgoes the liberal idea of freedom of contract. thus, rendering another important institution to be illiberal.
Education is another hierarchic society which ignores the liberal ideas, the best way to view the hierarchy in the education is to look at the system that operates within the boarding schools. The strong chains of traditions in a school regulate this system, where there is a patriarchal relationship between the students and the academic staff, student and the administration and among the students themselves.
In boarding schools, the relationship between teachers and students is based on more authority than in a regular school. This is because if the atmosphere is relaxed the students would loose the respect required for the functioning of the school. The administrative staffs like the housemasters and housemistresses have an enormous amount of power to detain the students, if they are found to be breaking rules. The rules on the whole are a lot stricter than at a normal school. In a boarding school students are refrain from eating chewing gums, from spending excess money, from keeping more than specified amount of objects on their dressing tables and eating mid-night meals. These rules are usually non-existent on the students living home, because they are not required to maintain the authority if the superiors. The other reason for these rules is to make sure that there is no supremacy between the students of the same standard. This is a development towards a homogenous society, where individuals are put under shadow for the benefit of the society.
The extra privileges come from the position one holds in the boarding school. If one is senior student there are extra privileges awarded to him. The rules relaxed as one climbs the stairs of the boarding school hierarchy, and if one ends up in the position of prefect or head students. The privileges awarded are far greater compared to other students. This hierarchic build up in the boarding system is the reflection of a society which awards rights and powers in accordance with the position one holds. This is complete antithesis of the liberal ideas of individual before the society and formal equality. These are all very conservative ideas, which maintain the patriarchal society.
This shows that even though most of the institutions which govern are lives appear to be liberal in their view, are extremely conservative. All of them tend to put the good of society before the good of individuals. The liberal ideas of equality and freedom seem very attractive when viewed under the dust of idealism, but when looked through the prism of realities they seem shatter into pieces. All the institutions viewed seem to suggest that liberal ideas cannot exist without the underlying conservative theory.