Introduction
This essay seeks to critically evaluate the extent to which the law relies on a liberal conception of the person, a notion rooted in individual autonomy, rationality, and self-determination. The liberal version of the person, often traced to Enlightenment thinkers like John Locke and Immanuel Kant, assumes individuals as independent agents capable of making reasoned decisions and bearing responsibility for their actions. In the context of law, this conception underpins key principles such as personal responsibility, contractual freedom, and individual rights. However, this dependency raises questions about the law’s ability to accommodate diverse identities, cultural contexts, and structural inequalities that challenge the universality of the liberal person. This essay will first outline the liberal conception of the person and its role in legal frameworks, before critically assessing its limitations through feminist, communitarian, and critical legal perspectives. By examining these critiques and considering specific legal examples, the essay aims to highlight both the strengths and shortcomings of this dependency, ultimately arguing that while the liberal person remains foundational, the law must adapt to encompass broader, more inclusive understandings of personhood.
The Liberal Conception of the Person in Law
The liberal conception of the person is central to modern legal systems, particularly in Western democracies like the United Kingdom. This view posits individuals as rational, autonomous agents endowed with inherent rights and the capacity for self-governance. As Locke (1689) argued, individuals possess a natural right to life, liberty, and property, which the law must protect through mechanisms such as contracts and personal liability (Locke, 1988). This perspective is evident in foundational legal principles, including the rule of law and the emphasis on individual rights enshrined in documents like the Human Rights Act 1998 in the UK, which incorporates the European Convention on Human Rights (ECHR) into domestic law. Under Article 8 of the ECHR, for instance, the right to respect for private and family life reflects the liberal ideal of personal autonomy (Council of Europe, 1950).
Moreover, the law often assumes that individuals are capable of exercising free will in entering contractual agreements or committing acts that attract legal consequences. In criminal law, the principle of mens rea (guilty mind) presumes a rational actor who can form intent, a cornerstone of liability in cases such as murder or theft (Ashworth, 2013). Similarly, in contract law, the notion of a meeting of minds—embodied in the principle of consensus ad idem—relies on the assumption that parties are autonomous and equal in their capacity to negotiate terms (Peel, 2015). These examples illustrate how deeply embedded the liberal person is in legal reasoning, shaping both substantive rules and procedural norms.
However, this reliance on a universal, rational individual overlooks the complexities of human experience. As will be explored below, the liberal person is often critiqued as an abstract construct that fails to account for social, economic, and cultural factors influencing personhood.
Critiques of the Liberal Person: Feminist Perspectives
Feminist legal scholars have long challenged the law’s dependency on the liberal version of the person, arguing that it reflects a gendered bias that marginalises women’s experiences. The liberal person is often conceptualised as independent and self-reliant, traits historically associated with masculinity, while qualities like interdependence and care—often linked to feminine roles—are sidelined (Gilligan, 1982). This critique is particularly evident in family law, where the law has traditionally prioritised individual autonomy over relational dynamics. For example, until reforms in the late 20th century, English law often treated married women as lacking independent legal personality under the doctrine of coverture, a stark illustration of how the liberal person was historically applied only to men (Shanley, 1989).
Even in contemporary contexts, feminist scholars argue that the liberal framework fails to address systemic inequalities. In areas such as domestic violence law, the emphasis on individual agency can obscure the structural constraints that prevent victims—often women—from leaving abusive relationships. Policies that focus solely on criminalising perpetrators, without addressing socioeconomic dependencies, arguably neglect the relational aspects of personhood (Smart, 1989). Therefore, while the liberal person provides a framework for asserting individual rights, its failure to account for gendered power imbalances highlights a significant limitation in its application.
Communitarian and Cultural Critiques
Beyond feminist critiques, communitarian scholars question the liberal person’s emphasis on individualism, arguing that it neglects the role of community and social context in shaping identity. Communitarians like Michael Sandel assert that persons are not isolated atoms but are inherently embedded in social relationships and cultural norms (Sandel, 1982). This perspective challenges the law’s tendency to prioritise individual rights over collective responsibilities, a tension visible in debates over issues like freedom of expression versus hate speech regulation. In the UK, the Public Order Act 1986 criminalises certain forms of speech that incite hatred, reflecting a balance between individual liberty and communal harmony (UK Government, 1986). However, the liberal framework often tilts towards individual autonomy, potentially undermining community cohesion.
Furthermore, the liberal person is often critiqued as a Western construct that marginalises non-Western cultural understandings of identity. For instance, in indigenous or collectivist societies, personhood may be defined through kinship or communal roles rather than individual autonomy (Kymlicka, 1995). In the UK context, this tension emerges in legal disputes involving cultural practices, such as arranged marriages or religious dress codes, where the law’s liberal assumptions may clash with communal values. Indeed, the liberal person’s universality is questionable when applied to multicultural societies, suggesting a need for the law to adopt a more pluralistic approach to personhood.
Critical Legal Studies and Structural Inequalities
Critical Legal Studies (CLS) scholars offer another lens through which to evaluate the law’s dependency on the liberal person, focusing on how this conception perpetuates structural inequalities. CLS argues that the law is not a neutral arbiter but a tool that reinforces existing power dynamics, with the liberal person serving as a facade for economic and social hierarchies (Unger, 1986). For example, the assumption of equal bargaining power in contract law often ignores disparities in wealth or access to legal resources, disproportionately affecting marginalised groups. Cases involving zero-hour contracts or gig economy workers in the UK highlight how legal principles rooted in liberal autonomy can fail to protect vulnerable individuals from exploitation (Adams and Prassl, 2018).
Additionally, in criminal law, the reliance on individual responsibility can obscure systemic issues such as poverty or discrimination that contribute to crime. The liberal person assumes a level playing field, yet statistics from the Ministry of Justice show that Black, Asian, and Minority Ethnic (BAME) individuals are disproportionately represented in the criminal justice system, suggesting structural factors beyond individual choice (Ministry of Justice, 2020). This raises questions about whether the law’s focus on the liberal person adequately addresses broader societal inequities or merely perpetuates them under the guise of neutrality.
Conclusion
In conclusion, the law’s dependency on a liberal version of the person is both a strength and a limitation. On one hand, this conception provides a coherent framework for upholding individual rights, autonomy, and responsibility, as seen in legal principles ranging from human rights to criminal liability. On the other hand, as feminist, communitarian, and critical legal perspectives demonstrate, the liberal person is a narrow and often exclusionary construct that fails to account for gendered experiences, cultural diversity, and structural inequalities. Examples such as domestic violence law, cultural conflicts, and economic disparities in contract law underscore these shortcomings, revealing a disconnect between the idealised liberal person and the realities of human life. Moving forward, the law must strive to integrate more inclusive notions of personhood, balancing individual autonomy with relational and systemic considerations. While the liberal person remains a foundational concept, its application must evolve to ensure fairness and justice in an increasingly complex and diverse society. This critical evaluation thus highlights not only the centrality of the liberal person in law but also the urgent need for legal systems to adapt to broader understandings of what it means to be a person.
References
- Adams, A. and Prassl, J. (2018) Zero-Hour Contracts: The Legal and Policy Debate. Oxford University Press.
- Ashworth, A. (2013) Principles of Criminal Law. 7th ed. Oxford University Press.
- Council of Europe (1950) European Convention on Human Rights. Council of Europe.
- Gilligan, C. (1982) In a Different Voice: Psychological Theory and Women’s Development. Harvard University Press.
- Kymlicka, W. (1995) Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford University Press.
- Locke, J. (1988) Two Treatises of Government. Cambridge University Press.
- Ministry of Justice (2020) Statistics on Race and the Criminal Justice System. UK Government.
- Peel, E. (2015) The Law of Contract. 14th ed. Sweet & Maxwell.
- Sandel, M. (1982) Liberalism and the Limits of Justice. Cambridge University Press.
- Shanley, M. L. (1989) Feminism, Marriage, and the Law in Victorian England. Princeton University Press.
- Smart, C. (1989) Feminism and the Power of Law. Routledge.
- Unger, R. M. (1986) The Critical Legal Studies Movement. Harvard University Press.
- UK Government (1986) Public Order Act 1986. HMSO.
