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Saturday, March 15, 2014

Criminal Justice Quote: Unintended Consequences of the Individual Rights Revolution

     Every culture, wittingly or unwittingly, has a public philosophy, a frame of reference by which people relate to each other. Many among us probably think that the last half of the twentieth century will go down in history as the Age of Individual Rights, or some such high-minded name. There are certainly heroes who'll get credit for breaking the bondage of racism and gender discrimination. But those triumphs may be tarnished, if in the name of rights, we lose our ability to raise healthy children or run our schools. Just as the defenders of laissez-faire hoped to be remembered as defenders of freedom, but ended up being remembered as apologists for industrial abuse, so too the age of individual rights may be remembered as a period of bullying by using law.

     Our governing philosophy is not, in truth, fairly characterized as one of individual rights, except in a mutant version that removes our freedom to act. Our governing philosophy is to strive for the least common denominator--a belief that society will somehow achieve equilibrium if it placates whoever is complaining. Our monocular focus on the individual, like our obsession to eliminate risk, makes it impossible to achieve any of our stated goals, including fairness.

     The rights revolution was doomed from the start. It didn't account for a truth of human nature--that people are wired to be self-centered. "The power of self-interest," Richard Niebuhr argued, colors all human activity. As Neibuhr put it, "reason is aways the servant of interest." Our founders understood this well. "Since man was an unchangeable creature of self-interest," historian Richard Hofstadter observed, our founders "would not leave anything to his capacity of restraint." That's why they created a government structure that in various ways could be insulated from the passions of what they called faction. Modern rights, by giving legal powers to some groups over others, basically institutionalizes faction. The effect, predictably, is to draw out the worst of human nature. Give me, give me more.

Philip K. Howard, Life Without Lawyers, 2009 

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