Public Order vs. Individual Rights

Public order vs. individual rights is not a new controversy. Since time immemorial, governments and individual citizens have had to walk a thin tightrope between the two ideals. This controversy was the catalyst that sparked the first ten amendments of the Constitution that we know as the Bill of Rights. In addition to these rights secured by America's forefathers, a number of organizations have sprouted, to ensure the protection of individual rights, in an increasingly complex world. In order to add balance to this equation, this paper will show that the criminal justice system should focus on public order in this difficult balancing act.

Public Order vs. Individual Rights

Public order vs. individual rights is not a new controversy. Since time immemorial, governments and individual citizens have had to walk a thin tightrope between the two ideals. This controversy was the catalyst that sparked the first ten amendments of the Constitution that we know as the Bill of Rights. In addition to these rights secured by America's forefathers, a number of organizations have sprouted, to ensure the protection of individual rights, in an increasingly complex world. In order to add balance to this equation, this paper will show that the criminal justice system should focus on public order in this difficult balancing act.

Individual Rights:

Private and autonomous liberty and collective authority are naturally diametrically opposed. As such, it's helpful to first have an understanding of what individual rights are. Individual rights is a multipurpose legal term that refers to what an individual is allowed to do and what can legally be done to them. It is the concept of individual rights that is the central theme in the 'due process model' of criminal justice. "The idea of individual rights is closely related to the idea of individual capital in some theories of political economy, in which the individual enhances his or her own creative capacities (as opposed to measurable productive capacities, which is usually called the theory of human capital), and must remain free to do so in any way she or he sees fit" ("Individual rights," 2004).

Discussion of individual rights in the Western world typically centers on the idea that individual rights are inversely related to social control. When processes such as due process and rule of law secure individual rights, public order can be more effective. "For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law" ("Individual rights," 2004).

As mentioned earlier, "in the United States, the Constitution outlines individuals rights within the Bill of Rights" ("Individual rights," 2004). These rights can be divided into two categories: negative rights and positive rights. Negative rights refer to what the government cannot do to an individual. Positive rights refer to what the individual is entitled to from society.

However, if individual rights are allowed to develop unchecked, this soon can create a societal void of the authority and order that is needed for these same individual rights to grow and flourish. There has to be some balance between the individual's rights and the public order. It is through public order that individual rights are kept in check and prevented from becoming dysfunctional.

Negative rights are in place to ensure that the opposite doesn't happen either. These rights help ensure that the government will remain within its prescribed boundaries. For this reason, the criminal justice system should be concerned with protection of a person's negative rights, however, not so that it negatively affects public order.

Public Order:

Public order is much as the name implies. It is the orderly interactions between citizens in a society. In its perfect state, enforcing public order would, by its definition, secure and maintain the individual rights of its citizens. However, also by agreeing that another party has the right and responsibility to enforce public order, citizens give up some of their individual rights.

By living in the United States, one has made a quasi-contractual agreement to abide by the laws that govern the country. As such, individuals have surrendered at least some of their individual rights in the name of public order. As an example:

ten people who live on an island may all possess liberty to do as they please. These people, however, constantly fight with one another over the limited food on the island. The ten people can use their liberty to enter a contract, which grants one of the individuals the power to make and enforce the rules they will all live by. These individuals have essentially contracted away a portion of their liberty for the sake of survival, creating a situation in which consent exists in the absence of liberty (Hale, 1999).

The Criminal Justice and its Concern with Public Order:

It is this public order that the criminal justice system needs to concern itself with. The citizens of America have given their consent to relinquish some of their individual liberties, to ensure that public order is maintained by the criminal justice system. Therefore it is their duty.

As mentioned earlier, certainly the criminal justice system should be concerned that they are not infringing upon a citizen's negative rights, however they were not established to enforce the positive rights that individuals have. They were put in place to ensure public order was maintained.

Individual rights has many other champions, such as the ACLU, who fight in the courtrooms, on collegiate campuses, and in the legislature, to try to tip the delicately balanced scales that weight individual rights and public order. These organizations often skew individual rights to that dysfunctional extreme discussed previously, and it is only through maintaining some semblance of public order that the scales can be righted and chaos averted. And it is this "public order (which is) guaranteed by state authority" (Gregg, 2004) such as the criminal justice system.