Column on Why Rights Based Systems are Sound

Why are Rights Based Political Systems Sound

Tibor R. Machan

In a previous column I noted that the US Supreme Court's ruling in Kelo
spells a victory for utilitarian or consequentialist notions of just
or good human communities. This is because in Kelo the majority held that
the right to private property may be violated not just for public use,
which is not really an exception to rights but a requirement of a system
in which rights are properly defended, but also for various purposes
private individuals pursue, if these purposes seem to advance overall
welfare or well being. In Kelo, in particular, this overall welfare or
well being consisted of economic development. (Of course, one can dispute
whether this is really so, but that's not the issue--assuming violating
private property rights advances overall welfare, go ahead and violate to
your heart's content, said the court, in effect.)

Is it a good thing that this utilitarian or consequentialist idea of a
just or good society gained headway via Kelo? After all, its spirit is in
clear violation of the political idea sketched in the Declaration of
Independence which took our basic rights to be unalienable, impermissible
to violate for any reason. So is this development in American political
history in which the Founder's notion of justice is abandoned and John
Stuart Mill's and those of other utilitarians (and pragmatists) is
embraced a good thing?

I ardently reject this and here is why: Human beings are moral agents and
their moral agency requires a legal order that secures for them their
basic rights, including the right to private property. When and if their
rights are indeed secured, they will have the chance to choose between
right and wrong conduct, although it is more likely that they will choose
right conduct since if other people's rights are also secured, no one will
be able to dump the bad consequences of his or her choices on others; they
will have to live with their mistakes and this will very likely discourage
them from making mistakes over and over again. Still, the possibility of
their making mistakes, of doing wrong cannot be avoided in a rights based
system, just as when the right to freedom of speech is protected, there is
no way to guaranteed that all who exercise it will only say worthwhile
things, or when the right to freedom of religions is protected all those
who exercise it will only believe in what is true.

But then why is still kind of system, one based on rights, the sound one?
Because it fits human beings better than the alternative, which would have
a legal system constantly promote welfare or well being, good things. The
fact is, that no one can ever devise a legal system and public policies
that guarantee good results. Putting people in charge of this massive
project is most likely to backfire in a big way. Politicians are not gods
or even angels, so what they plan is bound to contain many mistakes and
when they plan for others whom they do not know, that likelihood is
overwhelming. Also, politicians and bureaucrats are just as tempted to
dump their errors on others but being in power does not serve to
discourage them from doing so, quite the opposite. So, in point of fact,
to entrust the task of promoting economic or any other valuable
development to politicians and bureaucrats--the city of New London, CT, as
in Kelo--is futile and very likely destructive. Indeed, that is the big
lesson of the fall of the Soviet Union and its allies--they all had
centrally planned and/or regulated systems which entrusted leaders to
promote welfare and it all came apart for that very reason. The city
fathers of New London, CT., or of any other city in the world, are no more
able to do well at the task of promoting the public welfare than were
those in the Kremlin.

So, a rights based system of justice has a much better prospect at
promoting good things all around than one in which public officials are
supposed to engage in planning for the welfare of society. A rights based
system sets the citizenry free and in freedom they are better positioned
to promote overall and of course their own well being--which is really the
same thing--than if they are regimented about.

Thus Kelo was indeed a very bad decision and it would have been much
better to stick to the teachings of the American founders and affirm
individual, including private property, rights for Americans everywhere,
including in New London, CT.