On Civil Procedural Law and Liberal Legalism

Abstract

This article attempts to ascertain some of the general features regarding the unity between civil procedural law and liberal legalism. There is a fundamental idea that makes this attempt necessary. It is the critique of liberalism and its law which underlines much of the current thinking about civil procedure. To avoid any misunderstanding of the content of this paper, it should be apposite to delimit its purview. As will soon be evident, the present study will deliberately omit a discussion of the actual rules of civil procedures, viz., the rules regarding what procedure to be followed; which pleadings to be filed and served; and what burdens of proof and of adducing evidence should apply in a given situation. Such an omission should, however, not be read as denying the importance of rules in the analysis of law and its successes or failures. It must be admitted though, that a theoretical analysis of civil procedure and the extent to which the former is moulded by ideology, merits the specific focus of this article.