Raising a New Consciousness
If legal liberalism cannot withstand the full battery of attacks against traditional individual rights consciousness, can liberal legal scholars move beyond the conceptual premises and the language of individual rights consciousness, while still preserving a certain set of core liberal values and interests? We think so. But, in order to do this, liberal legal scholars should consider at least the following.
The Language of The Law ("The Linguistic Link")
Liberalism must confront, yet again,170 the reality that this a new world where the old categories and the old intellectual formulas no longer apply, or only apply in a strained way. 'Here, as elsewhere, troublesome old phrases may have served their era well in the evolution of the law. But here, as elsewhere, their era is past.'171 In this regard, it is important to recognize the degree to which legal liberalism has become the victim of its language, encased in the conceptual premises and constraints of contemporary individual rights terminology: 'fundamental rights,' 'individual autonomy,' 'private v. public realms of action,' 'free and unencumbered will,' and 'compelling state interest.'172 To borrow from Gabriel Garcia Marquez, '[t]hese are words that have come to mean very little. They're disconnected; they don't describe the reality they represent.'173
To illustrate: Ever more systematically, our social realities are ordered and conducted by power elites, i.e., burgeoning governmental bureaucracy and its private institutional counterparts. While the relationships between the individual and these power elites have changed, the language of the law that characterizes their relations has remained static.174 There are real disparities between current socioeconomic realities and the linguistic framework of the liberal legal system that purports to regulate these realities.175
The evolution of anew liberal consciousness depends on the willingness and the ability of liberal scholars to secure, through different language symbols and different intellectual constructs, the broad spectrum of material, emotional and spiritual values deemed important to a liberal society. At the very least, this requires a new liberal constitutional language, i.e., a new 'linguistic link' to substantive reality.
