Individual rights to some people should transcend the concerns of the community. However, to others, the community concerns triumph individual rights, and therefore, they have precedence in their implementation. These differing views have raised the question of which of the two concepts exists for the sake of the other. Is the community’s existence for the sake of the individual or vice versa? The study, therefore, aims at evaluating individual rights versus community concerns in which it aims at identifying which of the two has the precedence in its practice over the other. This will be done by evaluating the advantages and disadvantages of the concepts of individual rights and public order. Should the state’s justice system focus more on the rights of individuals or concentrate on the rights of the community?
Definition of terms
A right can be defined as legal and socially profound ethical entitlements and principles that are allowable to an individual and the community at large (Fenwick, 2001). It should be noted that the rights that are held by groups or communities should only guide the group as a unit and they should not bind the individuals. Public order proponents argue that under exceptional circumstances where an individual right jeopardizes public security, the individual right should be waived for the sake of public safety. A good example of where an individual right can be waived to promote public wellness is in the issue of religious fundamentalism. While it is generally agreed that people have freedom of worship and are at liberty to exercise their religion, religious fundamentalism exhibited by some cults and some Islamic extremists may jeopardize the security of the entire society. When such threats arise, the individual right of freedom of worship should be waived for the sake of public order (Ducat, 2008).
On the other hand, it should be noted that individual rights are held by individuals in the group and they only govern them as individuals. Individual rights are moral sanctions that are put in place by the social structures and they are expected to be followed strictly by all rational actors of the society. According to Aerschot, (2011), it is assumed that any member who is a rational actor will adhere to these rights as an obligation to obey the set rules by his or her society. Among the most fundamental rights of an individual is the right to life among others such as the right to liberty, freedom to own property, the right to be happy, and to freely express one’s religious beliefs.
The rights of the individual are inalienable and they cannot be transferred to any other person. Individual rights should always be upheld by the individuals and the group as well. Therefore, rights should always act, as the moral sanctions in the lives of all the people regardless of their social background or religious orientation. They are universal and should never be repressed. In the American context, individual rights are drafted in the American constitution’s bill of rights. These rights are very crucial to any internal stakeholder in the country’s criminal justice system.
Individual rights versus the community order
Public order is involved with the maintenance of crime control and social order. According to Schmalleger, (2009), the seniority of the mandate given to public order calls for scenarios where its practice supersedes that of individual rights. This is because public order has to precede human rights. If maintaining a specific human right jeopardizes the sanctity of the public order, then the state should reserve the right to ensure that individual rights that are put in jeopardy of public order are shelved. Individual actors are also obligated to ensure that all the measures taken to guarantee public order are not jeopardized by their actions in the pretense that they have a right to do whatever they wish.
Over the years, there has been a great struggle between the rights of an individual and the community or public order. There have been the proponents of absolute freedom that should be manifested by the individuals while at the same time, the community should also exist. It has been argued that people constituting the community are obliged to do as the community demands of them. In the United States, the government is in a dilemma as to what extent it should regulate the moral conduct of its citizens and at the same time, ensure that it does not repress their constitutional and fundamental rights to liberty.
The issue of liberty has no universal concession that stipulates exactly what is entailed by liberty (Schmalleger, 2009). For example, to some people, liberty is the freedom to do anything that they desire such as the acquisition of assets, freedom to be happy among others while to others, liberty is the freedom to use fellow beings as one wants for their good. The proponents of either definition of liberty could be right, but this could conflict with societal obligations. For instance, the Islamic community does not recognize the freedom of any other religion and this has overseen the persecution of many non-Muslims over the centuries. It does not also recognize the freedom of women and this has led to their subordination. On the other hand, everyone has an individual right to any kind of religious orientation and women have the liberty to free will, at least by American and western country standards.
The advantage of a community order in the identified example is that it helps shape the society towards certain moral standards. Community order in such instances ensures that the societal ideals that are seen as acceptable are maintained and strictly adhered to. In the example given above, if one chooses that individual rights are most fundamental, this will put away the Islamic community while on the other hand, if one chooses the Islamic orientation, they will do away with the rights that govern the freedom of religious orientation and the freedom of women.
Another advantage in support of individual rights has been advanced by Sieghart, (2004), who asserts that the government has no ethical convictions to regulate the moral standards of its actors. He argues that individual rights are sacred and should not be jeopardized by the agents of the community in the name of advancing public order. Individual rights give actors the required avenues to express their freedom in a naturally competitive environment that dictates the wellness or otherwise of the society (Aerschot, 2011). Individual rights give actors the freedom to enjoy their liberty. Aerschot, (2011), further argues that those who enforce public order do so in the pretense of promoting public wellness which, according to him, is a form of a hypocritical approach. According to Aerschot, (2011), human beings are rational actors and do understand that every right must have an obligation. For instance, if people have the right to be happy, they must ensure that they do not harm the other parties. Thus, individuals can manage their affairs without being controlled by public order rules.
On the other hand, public order has been hailed by Fenwick, (2001), as the regulator of irrational members of the society. Fenwick, (2001), asserts that not all members of a society are rational. This calls for a regulating force that would ensure that all members of the society observe rationality. Since some members may fail to realize that their rights are backed by strict obligations such as ensuring that they do not harm others, they must be regulated by rules of public order so that they can strictly adhere to these orders. The advantage of public order, therefore, according to Fenwick, (2001), is to ensure that individual rights are maintained and not vice versa.
Another argument that has been brought on board that has given community precedence over individual rights insists that anything that poses a threat to public health, safety, and welfare should be treated with utmost concern to safeguard the interests of the community. A survey that was carried out in the United States showed that over 80% of the country’s residents believed that the country’s legal system plays a very crucial role in ensuring that public order is maintained. They voted the American system as being the best in the world and most different from all legal systems on the planet. The respondents believed that the system put the interest of public order beyond individual rights. This has led to the reduction in the crime rates that were being witnessed in the country as it has instigated fear of committing a crime in the minds of the people due to the stiffness of the court verdicts to criminals (Robinson, 2009).
This has proved that the implementation of strict public order rules in the country has led to the improvement in public safety and its well-being has been upheld. However, this has come at the expense of the individual rights of the American citizens. According to Robinson, (2009), Americans today have lesser liberty to do whatever they want. This conflicts with the foundations that were used to make present-day America. The ground rules were based on the values that are held by an individual.
People who hold a contrary opinion that the safety of the public should transcend individual rights believe that safety in the country can still be maintained without having to violate the individual rights of the citizens. They believe that the country’s constitution has set all the ground rules that should always guide the government in undertaking its mandate in making certain that the safety of the Americans is held. The proponents of this view argue that the individual rights of the American people are availed in the constitution and therefore, the government should not use some dubious methods to cartel the liberty of the American people in the name of maintaining public order. They hold that individual rights will always triumph over community concerns.
Another aspect that has been used abusively by the government in meeting its obligation to oversee the well-being of the society is the technological invention that led to the assent of the surveillance satellites that have been to breach individual rights to absolute privacy. The government has been using these satellites to track the movement and the communication of certain people in the country. Such measures may be in direct violation of individual rights, but one can argue that the government agencies are forced to do this to ensure that public safety is upheld. This shows that while individual rights have the disadvantage of making people disobey their obligation to observe certain duties that come with their rights, public order has the advantage that it can easily override individual rights when there is a feeling that public security is under threat (Haopei, Yee & Wang, 2001).
In conclusion, both public order and individual rights have their advantages as well as their disadvantages. Overall, individual rights are put in place with the idea that people are rational actors and thus they will observe all the requirements of the law. However, since some members of society may not be rational in their actions, they need to have an elaborate system of public order is inevitable. Public order has the advantage that it reinforces individual rights by ensuring that irrational members of the society are forced to observe the obligations that come with individual rights. This way, all members of the society are guaranteed their happiness and liberty to progress.
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Fenwick, H. (2001). Civil Liberties Q & A. New York: Routledge.
Haopei, L., Yee, S. & Wang, T. (2001). International law in the post-Cold War world: essays in memory of Li Haopei. New York: Routledge.
Robinson, M. (2009). Justice Blind? Ideals and realities of American criminal justice. 3rd Ed. New York. Cage.
Ducat, C. R. (2008). Constitutional Interpretation: Rights of the individual. Upper Saddle River: Cengage Learning.
Schmalleger,F.(2009). Criminal Justice today: An Introductory text for the twenty-first century.10th Ed. New York. Cage.
Sieghart, P. (2004). The international law of human rights. New York: Oxford University Press.