CHARGES OF INTELLECTUAL BANKRUPTCY
The Inadequacy of Normative Premises
Europe's Enlightenment philosophers established the intellectual constructs that support current liberal legal theory. The political and moral philosophy of Thomas Hobbes, David Hume, Immanuel Kant, and John Locke presented the individual as a free, rational, and autonomous agent who was both the source of political authority and the ultimate justification for its exercise.126 Grounded in this concept of the individual, liberal legal theory holds that government and law are the products of rational and self-interested action by individuals, and that the preservation of conditions for the realization of individual self- interest is the primary reason for their creation. The 'rights-based' theories of legal liberalism place, at their center, concern for individual value preference and liberty of individual action.
Alexis de Tocqueville was an early critic of the 'social atomism'127 that is embodied in the American liberal legal tradition. He observed that human relations on an individualist, contractrian basis encouraged each citizen to regard himself or herself in isolation, to take care of personal self- interest, and to leave society to look after itself.128 Two centuries later, individual rights theory is still vulnerable to the charge of social atomism.129 The charge holds that the autonomous and free individual is a useless myth; it is questionable whether the model of independent and self- regarding action can be squared with socioeconomic realities and the bureaucratic state. Further, a right-based theory may endanger liberal political values since it may result in meaningless regulation of human relationships or ineffective remedies for social problems. The following three attacks on individual rights theory clarify the charge:
