The Communitarian And Libertarian Debate Essay, Research Paper
Question 1
In America, the dominant theory that shapes both our public and private laws is the belief in Individualism. Individualism, first coined by Alexis de Tocqueville in 1838, can be described as “A calm and considered feeling which disposes each citizen to isolate oneself from the mass of one’s fellows and withdraw into the circle of family and friends; with this little society formed to suit one’s taste, each gladly leaves the greater society to look after itself.” Although this term was invented almost 50 years after the Constitution was created, the framers had this concept in mind. Two widely debated areas of law that stem from the belief in individualism are the concepts public law and private law. The authors of Understanding the Law: Principles, Problems, and Potentials of the American Legal System, argue that the authors of the Constitution focused on three fundamental beliefs, freedom, fairness, and individual dignity. Freedom and individual dignity are often managed by private laws; fairness involves the use of public law. These three ideas are heavily invested in one another and the balancing of the three is the subject of the debate between libertarians and communitarians. The debate between libertarians who favor individual rights, private law, and communitarians who favor community rights, public law, can be seen in equal rights legislations and in civil procedure and due process.
History has shown that the idea of equality has often taken a back seat to freedom and individual dignity. Slavery is one example that demonstrates how white peoples individual freedom to own slaves compromised the integrity of equality. “The nineteenth-century slave codes provide an excellent example of law and state operating to impose a given social order.” Communitarian rights took a more prominent role with African Americans and minorities in the landmark decision of Brown v. Board of Education. Each State’s individual freedom to segregate their education system was overruled by the Supreme Court in order to promote fairness among all races. The Civil Rights Act of 1964 greatly reduced individuals’ rights in hiring procedures by requiring the “removal of artificial, arbitrary, and unnecessary barriers to employment” that white owned businesses placed on minorities. With the growing acceptance of equality in the twentieth century, promoting fairness under the law by minimizing individual rights in order to promote the greater good of the community reflects this current trend. In addition to law, communitarians such as B.F. Skinner believe “that the science of psychology should be used to structure our envir
The second area of debate between libertarians and communitarians concerns the area of civil procedure and due process. There are two types of law that govern civil procedure: procedural law and substantive law. “Procedural law is concerned with the process or method for resolving a legal dispute.” This method focuses on public law and proscribes general rules that all cases should follow regardless of their content. Communitarians argue that by following procedure, the public’s interest in justice would be served because the method follows guidelines rather than focusing on the merits of the case. This communitarian ideal establishes a quasi-fairness sense among all civil cases. “It is distinct form substantive law which may be considered the subject matter of the legal dispute.” Substantive law allows for more individual freedom in deciding a case by focusing on the subject matter of the case rather than civil procedure. “Reviewing almost 150 years of procedural reform in American law we clearly can see an effort to shirt the focus of a legal dispute from the technicalities of pleading and procedure to the substantive merits of the parties’ claims.” Substantive law supporters argue that by allowing the courts to make decisions based on the merits of the case, justice is better served for the individuals in the dispute. Civil cases, not criminal cases, would better serve the interest of justice for the litigants if a substantive law approach were used. Modern court cases display a wide variety of claims from the absurd to perfectly legitimate. Having a formalized procedure to cover all cases may actually turn out to not serve the best interest of the public. Civil cases are usually private matters to begin with and the court should reflect the interests of the parties for their particular case.
Wolfe, Art, et al. Understanding the Law: Principles, Problems, and Potentials of the American Legal System. Minneapolis/St. Paul: West Publishing Company, 1995, Page 39.
Wolfe, Page 36.
Kairys, David, ed. The Politics of Law: A Progressive Critique. Third Edition. New York: Basic Books, 1998, Page 281.
Kairys, Page 296.
Wolfe, Page 37.
Wolfe, Page 269.
Wolfe, Page 269.