Full version Individual Rights Versus Public Order

Individual Rights Versus Public Order

This print version free essay Individual Rights Versus Public Order.

Category: Social Issues

Autor: reviewessays 06 March 2011

Words: 10901 | Pages: 44

Individual Rights 1

Individual Rights Versus Public Order

Individual Rights 2

Public order and individual rights are not new controversy and how, since,

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 and, how in addition to these rights secured by America’s forefathers, a number of institutions have arisen to ensure the protection of individual rights in an increasingly complex world. In order to add balance to this equation, the criminal justice system needs to focus on the advantages and disadvantages of both.

Individual rights are 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 advantages of individual rights exceed the disadvantages. One advantage is that the government is bound by the Constitution and is sworn to preserve, protect, and defend it. If all Americans remained loyal to the Constitution, our republic would remain safe. In the structure of the American system, the people and their individual or natural rights are at the top. The United States guarantees all human beings, as the United Nations emphasizes (pg.1):

• the right to life, liberty, and security of person

• freedom of association, expression, assembly, and movement

• the right to the highest attainable standards of health

• freedom, from arbitrary arrest or detention

Individual Rights 3

• the right to a fair trial

• the right to just and favorable working conditions

• the right to adequate food, housing, and social security

• the right to education

• the right to equal protection of the law

• freedom from arbitrary interference with privacy, family, home, or correspondence

• freedom from torture and cruel, inhuman or degrading treatment or punishment

• freedom from slavery

• the right to a nationality

The United Nations defines public order as (pg.3):

“The enjoyment of some international human rights can be limited in line

legitimate requirements of national security, “public order” (although this

does not offer a carte blanche to abrogate human rights or public health.”

The United States has individual rights which are vast and added to frequently. Citizens enjoy advantages that other countries only dream of. These rights stretch as far as

Individual Rights 4

one’s social, cultural, and political perspectives, reaching all the way to gender preference today. Our rights give us security protecting our well-being as a whole. Our various cultures are respected we are educated and when in trouble our individual rights are highly protected and we are internationally secure in the knowledge that our country will protect our individual rights no matter where we are located.

Most would view individual rights as a necessity. But, in the criminal justice system, the rights of an individual can sometimes become a hindrance. Under the United States Constitution, citizens are guaranteed specific rights in regard to criminal law. Among those are, freedom from illegal search and seizure, and the protection from incriminating oneself through testimony or statements while in police custody. While these are very important rights to ensure fair and equal justice under the law, they can also have some disadvantages. For instance, if an officer knows that there is particular evidence that is needed for a case that is in the possession of or indirect control of the accused and proper procedures are not followed in order to obtain this evidence, the evidence can be excluded from trial based on the fourth amendment and the exclusionary rule. This evidence may have been the deciding factor in that particular case, thus allowing a guilty person to go free because of individual rights. Though this may not be the best outcome for society, it is what is guaranteed under the Bill of Rights.

Individual Rights 5

Another example of a disadvantage of human rights is the Fifth Amendment. Under this amendment, a person is guaranteed the right to refrain from saying anything that may be self-incriminating. This would also include coerced confessions. Often, the confession of the individual accused is what is needed in order to convict, but because of individual rights, the accused does not have to do so. This is another case that could result in a guilty person being freed. Remember Mark Fuhrman and O.J. Simpson as a case of example.

Perhaps the biggest disadvantage to individual rights is asking ourselves what societal rights we want to protect. There is a need to keep order, to protect life and liberty, but at what cost? By keeping individual rights that we currently have, we face the disadvantage of have the guilty set free. Yet, we still have the assurance that we can be more secure in life and liberty, by enforcing certain rights, even if it doesn’t always go the way we feel it should.

Public order, as it relates to modern society, is an integral part of both law enforcement and community. In contrast to individual rights, public order is all that stands between crime and the public. In times, such as these, with fear and concern about domestic terrorism, the public has shifted its focus away from stringent civil liberties and directed the focus of law enforcement towards security and every effort to abolish and protect against another incident of the 9/11 attacks.

Individual Rights 6

In order to effectively protect America from not just religious extremists, but street terror such as gangs and the ever growing war against drugs, society must be less concerned with protecting every interpretation of the rights of individuals, and be more concerned with protecting public order. Stricter crime legislation, tougher penalties, and better intelligence are the only hope to have a future safe with children. It is time to give the police the power they need to be the frontline defense against crime we pay them to be. Recently, in several states, much controversy has been raised about the issue of whether the police have a right to ask a person for identification regardless of if they have probable cause or not. If the public, criminals and terrorists alike were required to produce identification, the rate of arrests would soar, as police could easily identify fugitives, illegal immigrants, and suspects on the terror watch lists. If a person has not committed a crime, have no ties to terrorist activity, and nothing to hide, why not let the police run their identification through the database? Along with the controversy surrounding police powers, is also the debate about a nationalized identification card that was suggested after 9/11. This would be different from a state driver’s license, and be required for all person in the United States to carry with them at all times so police could more easily check a person’s background. Again, the point is the same, if you have nothing to hide, what is the problem with showing identification to authorities? Public order,

Individual Rights 7

while limiting certain freedoms and individual rights, is becoming more necessary with each passing day. For how much longer can we afford to let gangs control our cities, child molesters rape and kill our children, terrorists plot against our country from within, and drugs stream across our borders; before the public realizes that criminals use our individual rights against us, and public order needs to be restored and justice done. Freedom, and civil liberties are what this country was founded on, but the extensive degree to which some people interpret these freedoms has already cost America too much. The days of leaving your doors unlocked, your windows open, and allowing your children to play in the next neighborhood are a thing of the past. Kids can no longer walk to school without the fear of abduction, or being solicited to try drugs, or even getting shot by a classmate. If that is freedom, perhaps we need to take a harder look at who is free, the criminals or the public? It is high time for public order, as our streets are consumed by crime and fear, and pave new streets reticent of the innocence of times past.

One more disadvantage of both might be the consideration that human rights are mostly possessed by groups, sometimes based on ethnicity, gender, class or other socially constructed characteristics. With few exceptions human rights have traditionally been conceived as those of the individual. Unfortunately, rather than provide a way forward for human rights and occasionally disrupting public order, human rights advocates can be considered one of the most

Individual Rights 8

advantageous and disadvantageous areas of both. For all the struggle and superhuman efforts some endure, and of those who labor valiantly to protect the fundamental dignity and rights of humanity, gross violations of these rights still occur daily.

Group rights prove to be a distraction from the pursuit of universal adherence to human rights standards. A group’s rights approach is usually inappropriate because it fails to achieve any substantive right not cognizable under an individual rights scheme; moreover, the assertion of group rights itself poses serious theoretical and practical difficulties, not the least of which are problems of defining the group and the right as well as determining how the right is to be enforced. Adherence to the individual rights model does not mean that the effects of race, class, gender, ethnicity, or other socially determined identities must be ignored. Consideration of these groups is crucial to any meaningful framework of human rights, but the way in which these social identities are combined in each, and make the individual rights model appropriate A statement of law or rights includes within it, all possible scenarios for its enforcement. Predictions of how rights will complement or conflict with other rights or obligations are impossible. This balancing can work and would be the case anywhere. To address these intersections and conflicts between rights, legal systems require and adjudicatory process. In any group rights theory, there is no guarantee of individual rights or public order being accorded proper respect.

Individual Rights 9

Group rights advocates disagree and insist that the individual rights frame work itself putting less value on rights, particularly economic and social. They argue that the individual rights framework ignore the fact that human identity is shaped by social constructs such as race or gender, and because the framework is overly concerned in protecting liberty as opposed to rights. Advocates feel these shortcomings result in a failure to acknowledge the different voices and needs of individuals belonging to groups other than the dominant group and therefore, to the denigration of social and cultural rights. Advocates feel the focus on individual liberty downplays the security that is required to meaningfully exercise freedom. Yet this alleged disadvantage, though an accurate description of the social nature of human identity and the requirement of economic security, is not what is needed. Group rights raise the question of why we must accept a social construction that has so often already been defined and established. Why have it be forced upon an individual in order for him or her to realize their own human rights?

There is no reason that an individual rights framework need disregard these groups. Freedom of association, for example, is an individual right and does not mean that the law need be blind to the class or that other groups might affect the meaning of the right. There is always some class or group that feels oppressed, but at the same time understands that it is the importance of individuality that must be protected. Many, therefore, look to redress this

Individual Rights 10

imbalance and to see broader, more universal acceptance and enforcement of human rights.

Individual Rights 11

References

Encyclopedias

Encyclopedia Britannica. 2006 Encyclopedia Britannica Online. 25 June 2006.

http://www.search.eb.com/eb.

Encarta Encyclopedia. 2002 Encarta Online. 26 June 2006.

http:// encarta.msn.com/encyclopedia/crime.html.

Wikipedia Encyclopedia 2006 Wikipedia Encyclopedia Online 26 June 2006.

http://en.wikipedia.org/wik/rights.

Dictionary

Merriam-Webster Dictionary Online

http://reference.aol.com/dictionary.

Individual Rights 12

Website

http://www.fbi.gov/ucr/ucr.htm

Books and Article

Bierne, P., Messerschmidt, J. (2000). Criminology (4th edition) Boulder, Colorado; Westview Press.

Office of The United Nations High Commissioner For Human Rights. (2006). Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation. United Nations, New York and Geneva.

.

Individual Rights 1

Individual Rights and Public Order

Nancy Esposito

Jon Allen

Lori Sexton

Matthew Kroger

Addison Hawthorne

CJA/303

Candra Ogden

June 27, 2006

Individual Rights 2

Public order and individual rights are not new controversy and how, since,

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 and, how in addition to these rights secured by America’s forefathers, a number of institutions have arisen to ensure the protection of individual rights in an increasingly complex world. In order to add balance to this equation, the criminal justice system needs to focus on the advantages and disadvantages of both.

Individual rights are 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 advantages of individual rights exceed the disadvantages. One advantage is that the government is bound by the Constitution and is sworn to preserve, protect, and defend it. If all Americans remained loyal to the Constitution, our republic would remain safe. In the structure of the American system, the people and their individual or natural rights are at the top. The United States guarantees all human beings, as the United Nations emphasizes (pg.1):

• the right to life, liberty, and security of person

• freedom of association, expression, assembly, and movement

• the right to the highest attainable standards of health

• freedom, from arbitrary arrest or detention

Individual Rights 3

• the right to a fair trial

• the right to just and favorable working conditions

• the right to adequate food, housing, and social security

• the right to education

• the right to equal protection of the law

• freedom from arbitrary interference with privacy, family, home, or correspondence

• freedom from torture and cruel, inhuman or degrading treatment or punishment

• freedom from slavery

• the right to a nationality

The United Nations defines public order as (pg.3):

“The enjoyment of some international human rights can be limited in line

legitimate requirements of national security, “public order” (although this

does not offer a carte blanche to abrogate human rights or public health.”

The United States has individual rights which are vast and added to frequently. Citizens enjoy advantages that other countries only dream of. These rights stretch as far as

Individual Rights 4

one’s social, cultural, and political perspectives, reaching all the way to gender preference today. Our rights give us security protecting our well-being as a whole. Our various cultures are respected we are educated and when in trouble our individual rights are highly protected and we are internationally secure in the knowledge that our country will protect our individual rights no matter where we are located.

Most would view individual rights as a necessity. But, in the criminal justice system, the rights of an individual can sometimes become a hindrance. Under the United States Constitution, citizens are guaranteed specific rights in regard to criminal law. Among those are, freedom from illegal search and seizure, and the protection from incriminating oneself through testimony or statements while in police custody. While these are very important rights to ensure fair and equal justice under the law, they can also have some disadvantages. For instance, if an officer knows that there is particular evidence that is needed for a case that is in the possession of or indirect control of the accused and proper procedures are not followed in order to obtain this evidence, the evidence can be excluded from trial based on the fourth amendment and the exclusionary rule. This evidence may have been the deciding factor in that particular case, thus allowing a guilty person to go free because of individual rights. Though this may not be the best outcome for society, it is what is guaranteed under the Bill of Rights.

Individual Rights 5

Another example of a disadvantage of human rights is the Fifth Amendment. Under this amendment, a person is guaranteed the right to refrain from saying anything that may be self-incriminating. This would also include coerced confessions. Often, the confession of the individual accused is what is needed in order to convict, but because of individual rights, the accused does not have to do so. This is another case that could result in a guilty person being freed. Remember Mark Fuhrman and O.J. Simpson as a case of example.

Perhaps the biggest disadvantage to individual rights is asking ourselves what societal rights we want to protect. There is a need to keep order, to protect life and liberty, but at what cost? By keeping individual rights that we currently have, we face the disadvantage of have the guilty set free. Yet, we still have the assurance that we can be more secure in life and liberty, by enforcing certain rights, even if it doesn’t always go the way we feel it should.

Public order, as it relates to modern society, is an integral part of both law enforcement and community. In contrast to individual rights, public order is all that stands between crime and the public. In times, such as these, with fear and concern about domestic terrorism, the public has shifted its focus away from stringent civil liberties and directed the focus of law enforcement towards security and every effort to abolish and protect against another incident of the 9/11 attacks.

Individual Rights 6

In order to effectively protect America from not just religious extremists, but street terror such as gangs and the ever growing war against drugs, society must be less concerned with protecting every interpretation of the rights of individuals, and be more concerned with protecting public order. Stricter crime legislation, tougher penalties, and better intelligence are the only hope to have a future safe with children. It is time to give the police the power they need to be the frontline defense against crime we pay them to be. Recently, in several states, much controversy has been raised about the issue of whether the police have a right to ask a person for identification regardless of if they have probable cause or not. If the public, criminals and terrorists alike were required to produce identification, the rate of arrests would soar, as police could easily identify fugitives, illegal immigrants, and suspects on the terror watch lists. If a person has not committed a crime, have no ties to terrorist activity, and nothing to hide, why not let the police run their identification through the database? Along with the controversy surrounding police powers, is also the debate about a nationalized identification card that was suggested after 9/11. This would be different from a state driver’s license, and be required for all person in the United States to carry with them at all times so police could more easily check a person’s background. Again, the point is the same, if you have nothing to hide, what is the problem with showing identification to authorities? Public order,

Individual Rights 7

while limiting certain freedoms and individual rights, is becoming more necessary with each passing day. For how much longer can we afford to let gangs control our cities, child molesters rape and kill our children, terrorists plot against our country from within, and drugs stream across our borders; before the public realizes that criminals use our individual rights against us, and public order needs to be restored and justice done. Freedom, and civil liberties are what this country was founded on, but the extensive degree to which some people interpret these freedoms has already cost America too much. The days of leaving your doors unlocked, your windows open, and allowing your children to play in the next neighborhood are a thing of the past. Kids can no longer walk to school without the fear of abduction, or being solicited to try drugs, or even getting shot by a classmate. If that is freedom, perhaps we need to take a harder look at who is free, the criminals or the public? It is high time for public order, as our streets are consumed by crime and fear, and pave new streets reticent of the innocence of times past.

One more disadvantage of both might be the consideration that human rights are mostly possessed by groups, sometimes based on ethnicity, gender, class or other socially constructed characteristics. With few exceptions human rights have traditionally been conceived as those of the individual. Unfortunately, rather than provide a way forward for human rights and occasionally disrupting public order, human rights advocates can be considered one of the most

Individual Rights 8

advantageous and disadvantageous areas of both. For all the struggle and superhuman efforts some endure, and of those who labor valiantly to protect the fundamental dignity and rights of humanity, gross violations of these rights still occur daily.

Group rights prove to be a distraction from the pursuit of universal adherence to human rights standards. A group’s rights approach is usually inappropriate because it fails to achieve any substantive right not cognizable under an individual rights scheme; moreover, the assertion of group rights itself poses serious theoretical and practical difficulties, not the least of which are problems of defining the group and the right as well as determining how the right is to be enforced. Adherence to the individual rights model does not mean that the effects of race, class, gender, ethnicity, or other socially determined identities must be ignored. Consideration of these groups is crucial to any meaningful framework of human rights, but the way in which these social identities are combined in each, and make the individual rights model appropriate A statement of law or rights includes within it, all possible scenarios for its enforcement. Predictions of how rights will complement or conflict with other rights or obligations are impossible. This balancing can work and would be the case anywhere. To address these intersections and conflicts between rights, legal systems require and adjudicatory process. In any group rights theory, there is no guarantee of individual rights or public order being accorded proper respect.

Individual Rights 9

Group rights advocates disagree and insist that the individual rights frame work itself putting less value on rights, particularly economic and social. They argue that the individual rights framework ignore the fact that human identity is shaped by social constructs such as race or gender, and because the framework is overly concerned in protecting liberty as opposed to rights. Advocates feel these shortcomings result in a failure to acknowledge the different voices and needs of individuals belonging to groups other than the dominant group and therefore, to the denigration of social and cultural rights. Advocates feel the focus on individual liberty downplays the security that is required to meaningfully exercise freedom. Yet this alleged disadvantage, though an accurate description of the social nature of human identity and the requirement of economic security, is not what is needed. Group rights raise the question of why we must accept a social construction that has so often already been defined and established. Why have it be forced upon an individual in order for him or her to realize their own human rights?

There is no reason that an individual rights framework need disregard these groups. Freedom of association, for example, is an individual right and does not mean that the law need be blind to the class or that other groups might affect the meaning of the right. There is always some class or group that feels oppressed, but at the same time understands that it is the importance of individuality that must be protected. Many, therefore, look to redress this

Individual Rights 10

imbalance and to see broader, more universal acceptance and enforcement of human rights.

Individual Rights 11

References

Encyclopedias

Encyclopedia Britannica. 2006 Encyclopedia Britannica Online. 25 June 2006.

http://www.search.eb.com/eb.

Encarta Encyclopedia. 2002 Encarta Online. 26 June 2006.

http:// encarta.msn.com/encyclopedia/crime.html.

Wikipedia Encyclopedia 2006 Wikipedia Encyclopedia Online 26 June 2006.

http://en.wikipedia.org/wik/rights.

Dictionary

Merriam-Webster Dictionary Online

http://reference.aol.com/dictionary.

Individual Rights 12

Website

http://www.fbi.gov/ucr/ucr.htm

Books and Article

Bierne, P., Messerschmidt, J. (2000). Criminology (4th edition) Boulder, Colorado; Westview Press.

Office of The United Nations High Commissioner For Human Rights. (2006). Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation. United Nations, New York and Geneva.

.

Individual Rights 1

Individual Rights and Public Order

Nancy Esposito

Jon Allen

Lori Sexton

Matthew Kroger

Addison Hawthorne

CJA/303

Candra Ogden

June 27, 2006

Individual Rights 2

Public order and individual rights are not new controversy and how, since,

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 and, how in addition to these rights secured by America’s forefathers, a number of institutions have arisen to ensure the protection of individual rights in an increasingly complex world. In order to add balance to this equation, the criminal justice system needs to focus on the advantages and disadvantages of both.

Individual rights are 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 advantages of individual rights exceed the disadvantages. One advantage is that the government is bound by the Constitution and is sworn to preserve, protect, and defend it. If all Americans remained loyal to the Constitution, our republic would remain safe. In the structure of the American system, the people and their individual or natural rights are at the top. The United States guarantees all human beings, as the United Nations emphasizes (pg.1):

• the right to life, liberty, and security of person

• freedom of association, expression, assembly, and movement

• the right to the highest attainable standards of health

• freedom, from arbitrary arrest or detention

Individual Rights 3

• the right to a fair trial

• the right to just and favorable working conditions

• the right to adequate food, housing, and social security

• the right to education

• the right to equal protection of the law

• freedom from arbitrary interference with privacy, family, home, or correspondence

• freedom from torture and cruel, inhuman or degrading treatment or punishment

• freedom from slavery

• the right to a nationality

The United Nations defines public order as (pg.3):

“The enjoyment of some international human rights can be limited in line

legitimate requirements of national security, “public order” (although this

does not offer a carte blanche to abrogate human rights or public health.”

The United States has individual rights which are vast and added to frequently. Citizens enjoy advantages that other countries only dream of. These rights stretch as far as

Individual Rights 4

one’s social, cultural, and political perspectives, reaching all the way to gender preference today. Our rights give us security protecting our well-being as a whole. Our various cultures are respected we are educated and when in trouble our individual rights are highly protected and we are internationally secure in the knowledge that our country will protect our individual rights no matter where we are located.

Most would view individual rights as a necessity. But, in the criminal justice system, the rights of an individual can sometimes become a hindrance. Under the United States Constitution, citizens are guaranteed specific rights in regard to criminal law. Among those are, freedom from illegal search and seizure, and the protection from incriminating oneself through testimony or statements while in police custody. While these are very important rights to ensure fair and equal justice under the law, they can also have some disadvantages. For instance, if an officer knows that there is particular evidence that is needed for a case that is in the possession of or indirect control of the accused and proper procedures are not followed in order to obtain this evidence, the evidence can be excluded from trial based on the fourth amendment and the exclusionary rule. This evidence may have been the deciding factor in that particular case, thus allowing a guilty person to go free because of individual rights. Though this may not be the best outcome for society, it is what is guaranteed under the Bill of Rights.

Individual Rights 5

Another example of a disadvantage of human rights is the Fifth Amendment. Under this amendment, a person is guaranteed the right to refrain from saying anything that may be self-incriminating. This would also include coerced confessions. Often, the confession of the individual accused is what is needed in order to convict, but because of individual rights, the accused does not have to do so. This is another case that could result in a guilty person being freed. Remember Mark Fuhrman and O.J. Simpson as a case of example.

Perhaps the biggest disadvantage to individual rights is asking ourselves what societal rights we want to protect. There is a need to keep order, to protect life and liberty, but at what cost? By keeping individual rights that we currently have, we face the disadvantage of have the guilty set free. Yet, we still have the assurance that we can be more secure in life and liberty, by enforcing certain rights, even if it doesn’t always go the way we feel it should.

Public order, as it relates to modern society, is an integral part of both law enforcement and community. In contrast to individual rights, public order is all that stands between crime and the public. In times, such as these, with fear and concern about domestic terrorism, the public has shifted its focus away from stringent civil liberties and directed the focus of law enforcement towards security and every effort to abolish and protect against another incident of the 9/11 attacks.

Individual Rights 6

In order to effectively protect America from not just religious extremists, but street terror such as gangs and the ever growing war against drugs, society must be less concerned with protecting every interpretation of the rights of individuals, and be more concerned with protecting public order. Stricter crime legislation, tougher penalties, and better intelligence are the only hope to have a future safe with children. It is time to give the police the power they need to be the frontline defense against crime we pay them to be. Recently, in several states, much controversy has been raised about the issue of whether the police have a right to ask a person for identification regardless of if they have probable cause or not. If the public, criminals and terrorists alike were required to produce identification, the rate of arrests would soar, as police could easily identify fugitives, illegal immigrants, and suspects on the terror watch lists. If a person has not committed a crime, have no ties to terrorist activity, and nothing to hide, why not let the police run their identification through the database? Along with the controversy surrounding police powers, is also the debate about a nationalized identification card that was suggested after 9/11. This would be different from a state driver’s license, and be required for all person in the United States to carry with them at all times so police could more easily check a person’s background. Again, the point is the same, if you have nothing to hide, what is the problem with showing identification to authorities? Public order,

Individual Rights 7

while limiting certain freedoms and individual rights, is becoming more necessary with each passing day. For how much longer can we afford to let gangs control our cities, child molesters rape and kill our children, terrorists plot against our country from within, and drugs stream across our borders; before the public realizes that criminals use our individual rights against us, and public order needs to be restored and justice done. Freedom, and civil liberties are what this country was founded on, but the extensive degree to which some people interpret these freedoms has already cost America too much. The days of leaving your doors unlocked, your windows open, and allowing your children to play in the next neighborhood are a thing of the past. Kids can no longer walk to school without the fear of abduction, or being solicited to try drugs, or even getting shot by a classmate. If that is freedom, perhaps we need to take a harder look at who is free, the criminals or the public? It is high time for public order, as our streets are consumed by crime and fear, and pave new streets reticent of the innocence of times past.

One more disadvantage of both might be the consideration that human rights are mostly possessed by groups, sometimes based on ethnicity, gender, class or other socially constructed characteristics. With few exceptions human rights have traditionally been conceived as those of the individual. Unfortunately, rather than provide a way forward for human rights and occasionally disrupting public order, human rights advocates can be considered one of the most

Individual Rights 8

advantageous and disadvantageous areas of both. For all the struggle and superhuman efforts some endure, and of those who labor valiantly to protect the fundamental dignity and rights of humanity, gross violations of these rights still occur daily.

Group rights prove to be a distraction from the pursuit of universal adherence to human rights standards. A group’s rights approach is usually inappropriate because it fails to achieve any substantive right not cognizable under an individual rights scheme; moreover, the assertion of group rights itself poses serious theoretical and practical difficulties, not the least of which are problems of defining the group and the right as well as determining how the right is to be enforced. Adherence to the individual rights model does not mean that the effects of race, class, gender, ethnicity, or other socially determined identities must be ignored. Consideration of these groups is crucial to any meaningful framework of human rights, but the way in which these social identities are combined in each, and make the individual rights model appropriate A statement of law or rights includes within it, all possible scenarios for its enforcement. Predictions of how rights will complement or conflict with other rights or obligations are impossible. This balancing can work and would be the case anywhere. To address these intersections and conflicts between rights, legal systems require and adjudicatory process. In any group rights theory, there is no guarantee of individual rights or public order being accorded proper respect.

Individual Rights 9

Group rights advocates disagree and insist that the individual rights frame work itself putting less value on rights, particularly economic and social. They argue that the individual rights framework ignore the fact that human identity is shaped by social constructs such as race or gender, and because the framework is overly concerned in protecting liberty as opposed to rights. Advocates feel these shortcomings result in a failure to acknowledge the different voices and needs of individuals belonging to groups other than the dominant group and therefore, to the denigration of social and cultural rights. Advocates feel the focus on individual liberty downplays the security that is required to meaningfully exercise freedom. Yet this alleged disadvantage, though an accurate description of the social nature of human identity and the requirement of economic security, is not what is needed. Group rights raise the question of why we must accept a social construction that has so often already been defined and established. Why have it be forced upon an individual in order for him or her to realize their own human rights?

There is no reason that an individual rights framework need disregard these groups. Freedom of association, for example, is an individual right and does not mean that the law need be blind to the class or that other groups might affect the meaning of the right. There is always some class or group that feels oppressed, but at the same time understands that it is the importance of individuality that must be protected. Many, therefore, look to redress this

Individual Rights 10

imbalance and to see broader, more universal acceptance and enforcement of human rights.

Individual Rights 11

References

Encyclopedias

Encyclopedia Britannica. 2006 Encyclopedia Britannica Online. 25 June 2006.

http://www.search.eb.com/eb.

Encarta Encyclopedia. 2002 Encarta Online. 26 June 2006.

http:// encarta.msn.com/encyclopedia/crime.html.

Wikipedia Encyclopedia 2006 Wikipedia Encyclopedia Online 26 June 2006.

http://en.wikipedia.org/wik/rights.

Dictionary

Merriam-Webster Dictionary Online

http://reference.aol.com/dictionary.

Individual Rights 12

Website

http://www.fbi.gov/ucr/ucr.htm

Books and Article

Bierne, P., Messerschmidt, J. (2000). Criminology (4th edition) Boulder, Colorado; Westview Press.

Office of The United Nations High Commissioner For Human Rights. (2006). Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation. United Nations, New York and Geneva.

.

Individual Rights 1

Individual Rights and Public Order

Nancy Esposito

Jon Allen

Lori Sexton

Matthew Kroger

Addison Hawthorne

CJA/303

Candra Ogden

June 27, 2006

Individual Rights 2

Public order and individual rights are not new controversy and how, since,

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 and, how in addition to these rights secured by America’s forefathers, a number of institutions have arisen to ensure the protection of individual rights in an increasingly complex world. In order to add balance to this equation, the criminal justice system needs to focus on the advantages and disadvantages of both.

Individual rights are 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 advantages of individual rights exceed the disadvantages. One advantage is that the government is bound by the Constitution and is sworn to preserve, protect, and defend it. If all Americans remained loyal to the Constitution, our republic would remain safe. In the structure of the American system, the people and their individual or natural rights are at the top. The United States guarantees all human beings, as the United Nations emphasizes (pg.1):

• the right to life, liberty, and security of person

• freedom of association, expression, assembly, and movement

• the right to the highest attainable standards of health

• freedom, from arbitrary arrest or detention

Individual Rights 3

• the right to a fair trial

• the right to just and favorable working conditions

• the right to adequate food, housing, and social security

• the right to education

• the right to equal protection of the law

• freedom from arbitrary interference with privacy, family, home, or correspondence

• freedom from torture and cruel, inhuman or degrading treatment or punishment

• freedom from slavery

• the right to a nationality

The United Nations defines public order as (pg.3):

“The enjoyment of some international human rights can be limited in line

legitimate requirements of national security, “public order” (although this

does not offer a carte blanche to abrogate human rights or public health.”

The United States has individual rights which are vast and added to frequently. Citizens enjoy advantages that other countries only dream of. These rights stretch as far as

Individual Rights 4

one’s social, cultural, and political perspectives, reaching all the way to gender preference today. Our rights give us security protecting our well-being as a whole. Our various cultures are respected we are educated and when in trouble our individual rights are highly protected and we are internationally secure in the knowledge that our country will protect our individual rights no matter where we are located.

Most would view individual rights as a necessity. But, in the criminal justice system, the rights of an individual can sometimes become a hindrance. Under the United States Constitution, citizens are guaranteed specific rights in regard to criminal law. Among those are, freedom from illegal search and seizure, and the protection from incriminating oneself through testimony or statements while in police custody. While these are very important rights to ensure fair and equal justice under the law, they can also have some disadvantages. For instance, if an officer knows that there is particular evidence that is needed for a case that is in the possession of or indirect control of the accused and proper procedures are not followed in order to obtain this evidence, the evidence can be excluded from trial based on the fourth amendment and the exclusionary rule. This evidence may have been the deciding factor in that particular case, thus allowing a guilty person to go free because of individual rights. Though this may not be the best outcome for society, it is what is guaranteed under the Bill of Rights.

Individual Rights 5

Another example of a disadvantage of human rights is the Fifth Amendment. Under this amendment, a person is guaranteed the right to refrain from saying anything that may be self-incriminating. This would also include coerced confessions. Often, the confession of the individual accused is what is needed in order to convict, but because of individual rights, the accused does not have to do so. This is another case that could result in a guilty person being freed. Remember Mark Fuhrman and O.J. Simpson as a case of example.

Perhaps the biggest disadvantage to individual rights is asking ourselves what societal rights we want to protect. There is a need to keep order, to protect life and liberty, but at what cost? By keeping individual rights that we currently have, we face the disadvantage of have the guilty set free. Yet, we still have the assurance that we can be more secure in life and liberty, by enforcing certain rights, even if it doesn’t always go the way we feel it should.

Public order, as it relates to modern society, is an integral part of both law enforcement and community. In contrast to individual rights, public order is all that stands between crime and the public. In times, such as these, with fear and concern about domestic terrorism, the public has shifted its focus away from stringent civil liberties and directed the focus of law enforcement towards security and every effort to abolish and protect against another incident of the 9/11 attacks.

Individual Rights 6

In order to effectively protect America from not just religious extremists, but street terror such as gangs and the ever growing war against drugs, society must be less concerned with protecting every interpretation of the rights of individuals, and be more concerned with protecting public order. Stricter crime legislation, tougher penalties, and better intelligence are the only hope to have a future safe with children. It is time to give the police the power they need to be the frontline defense against crime we pay them to be. Recently, in several states, much controversy has been raised about the issue of whether the police have a right to ask a person for identification regardless of if they have probable cause or not. If the public, criminals and terrorists alike were required to produce identification, the rate of arrests would soar, as police could easily identify fugitives, illegal immigrants, and suspects on the terror watch lists. If a person has not committed a crime, have no ties to terrorist activity, and nothing to hide, why not let the police run their identification through the database? Along with the controversy surrounding police powers, is also the debate about a nationalized identification card that was suggested after 9/11. This would be different from a state driver’s license, and be required for all person in the United States to carry with them at all times so police could more easily check a person’s background. Again, the point is the same, if you have nothing to hide, what is the problem with showing identification to authorities? Public order,

Individual Rights 7

while limiting certain freedoms and individual rights, is becoming more necessary with each passing day. For how much longer can we afford to let gangs control our cities, child molesters rape and kill our children, terrorists plot against our country from within, and drugs stream across our borders; before the public realizes that criminals use our individual rights against us, and public order needs to be restored and justice done. Freedom, and civil liberties are what this country was founded on, but the extensive degree to which some people interpret these freedoms has already cost America too much. The days of leaving your doors unlocked, your windows open, and allowing your children to play in the next neighborhood are a thing of the past. Kids can no longer walk to school without the fear of abduction, or being solicited to try drugs, or even getting shot by a classmate. If that is freedom, perhaps we need to take a harder look at who is free, the criminals or the public? It is high time for public order, as our streets are consumed by crime and fear, and pave new streets reticent of the innocence of times past.

One more disadvantage of both might be the consideration that human rights are mostly possessed by groups, sometimes based on ethnicity, gender, class or other socially constructed characteristics. With few exceptions human rights have traditionally been conceived as those of the individual. Unfortunately, rather than provide a way forward for human rights and occasionally disrupting public order, human rights advocates can be considered one of the most

Individual Rights 8

advantageous and disadvantageous areas of both. For all the struggle and superhuman efforts some endure, and of those who labor valiantly to protect the fundamental dignity and rights of humanity, gross violations of these rights still occur daily.

Group rights prove to be a distraction from the pursuit of universal adherence to human rights standards. A group’s rights approach is usually inappropriate because it fails to achieve any substantive right not cognizable under an individual rights scheme; moreover, the assertion of group rights itself poses serious theoretical and practical difficulties, not the least of which are problems of defining the group and the right as well as determining how the right is to be enforced. Adherence to the individual rights model does not mean that the effects of race, class, gender, ethnicity, or other socially determined identities must be ignored. Consideration of these groups is crucial to any meaningful framework of human rights, but the way in which these social identities are combined in each, and make the individual rights model appropriate A statement of law or rights includes within it, all possible scenarios for its enforcement. Predictions of how rights will complement or conflict with other rights or obligations are impossible. This balancing can work and would be the case anywhere. To address these intersections and conflicts between rights, legal systems require and adjudicatory process. In any group rights theory, there is no guarantee of individual rights or public order being accorded proper respect.

Individual Rights 9

Group rights advocates disagree and insist that the individual rights frame work itself putting less value on rights, particularly economic and social. They argue that the individual rights framework ignore the fact that human identity is shaped by social constructs such as race or gender, and because the framework is overly concerned in protecting liberty as opposed to rights. Advocates feel these shortcomings result in a failure to acknowledge the different voices and needs of individuals belonging to groups other than the dominant group and therefore, to the denigration of social and cultural rights. Advocates feel the focus on individual liberty downplays the security that is required to meaningfully exercise freedom. Yet this alleged disadvantage, though an accurate description of the social nature of human identity and the requirement of economic security, is not what is needed. Group rights raise the question of why we must accept a social construction that has so often already been defined and established. Why have it be forced upon an individual in order for him or her to realize their own human rights?

There is no reason that an individual rights framework need disregard these groups. Freedom of association, for example, is an individual right and does not mean that the law need be blind to the class or that other groups might affect the meaning of the right. There is always some class or group that feels oppressed, but at the same time understands that it is the importance of individuality that must be protected. Many, therefore, look to redress this

Individual Rights 10

imbalance and to see broader, more universal acceptance and enforcement of human rights.

Individual Rights 11

References

Encyclopedias

Encyclopedia Britannica. 2006 Encyclopedia Britannica Online. 25 June 2006.

http://www.search.eb.com/eb.

Encarta Encyclopedia. 2002 Encarta Online. 26 June 2006.

http:// encarta.msn.com/encyclopedia/crime.html.

Wikipedia Encyclopedia 2006 Wikipedia Encyclopedia Online 26 June 2006.

http://en.wikipedia.org/wik/rights.

Dictionary

Merriam-Webster Dictionary Online

http://reference.aol.com/dictionary.

Individual Rights 12

Website

http://www.fbi.gov/ucr/ucr.htm

Books and Article

Bierne, P., Messerschmidt, J. (2000). Criminology (4th edition) Boulder, Colorado; Westview Press.

Office of The United Nations High Commissioner For Human Rights. (2006). Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation. United Nations, New York and Geneva.

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Individual Rights 1

Individual Rights and Public Order

Nancy Esposito

Jon Allen

Lori Sexton

Matthew Kroger

Addison Hawthorne

CJA/303

Candra Ogden

June 27, 2006

Individual Rights 2

Public order and individual rights are not new controversy and how, since,

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 and, how in addition to these rights secured by America’s forefathers, a number of institutions have arisen to ensure the protection of individual rights in an increasingly complex world. In order to add balance to this equation, the criminal justice system needs to focus on the advantages and disadvantages of both.

Individual rights are 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 advantages of individual rights exceed the disadvantages. One advantage is that the government is bound by the Constitution and is sworn to preserve, protect, and defend it. If all Americans remained loyal to the Constitution, our republic would remain safe. In the structure of the American system, the people and their individual or natural rights are at the top. The United States guarantees all human beings, as the United Nations emphasizes (pg.1):

• the right to life, liberty, and security of person

• freedom of association, expression, assembly, and movement

• the right to the highest attainable standards of health

• freedom, from arbitrary arrest or detention

Individual Rights 3

• the right to a fair trial

• the right to just and favorable working conditions

• the right to adequate food, housing, and social security

• the right to education

• the right to equal protection of the law

• freedom from arbitrary interference with privacy, family, home, or correspondence

• freedom from torture and cruel, inhuman or degrading treatment or punishment

• freedom from slavery

• the right to a nationality

The United Nations defines public order as (pg.3):

“The enjoyment of some international human rights can be limited in line

legitimate requirements of national security, “public order” (although this

does not offer a carte blanche to abrogate human rights or public health.”

The United States has individual rights which are vast and added to frequently. Citizens enjoy advantages that other countries only dream of. These rights stretch as far as

Individual Rights 4

one’s social, cultural, and political perspectives, reaching all the way to gender preference today. Our rights give us security protecting our well-being as a whole. Our various cultures are respected we are educated and when in trouble our individual rights are highly protected and we are internationally secure in the knowledge that our country will protect our individual rights no matter where we are located.

Most would view individual rights as a necessity. But, in the criminal justice system, the rights of an individual can sometimes become a hindrance. Under the United States Constitution, citizens are guaranteed specific rights in regard to criminal law. Among those are, freedom from illegal search and seizure, and the protection from incriminating oneself through testimony or statements while in police custody. While these are very important rights to ensure fair and equal justice under the law, they can also have some disadvantages. For instance, if an officer knows that there is particular evidence that is needed for a case that is in the possession of or indirect control of the accused and proper procedures are not followed in order to obtain this evidence, the evidence can be excluded from trial based on the fourth amendment and the exclusionary rule. This evidence may have been the deciding factor in that particular case, thus allowing a guilty person to go free because of individual rights. Though this may not be the best outcome for society, it is what is guaranteed under the Bill of Rights.

Individual Rights 5

Another example of a disadvantage of human rights is the Fifth Amendment. Under this amendment, a person is guaranteed the right to refrain from saying anything that may be self-incriminating. This would also include coerced confessions. Often, the confession of the individual accused is what is needed in order to convict, but because of individual rights, the accused does not have to do so. This is another case that could result in a guilty person being freed. Remember Mark Fuhrman and O.J. Simpson as a case of example.

Perhaps the biggest disadvantage to individual rights is asking ourselves what societal rights we want to protect. There is a need to keep order, to protect life and liberty, but at what cost? By keeping individual rights that we currently have, we face the disadvantage of have the guilty set free. Yet, we still have the assurance that we can be more secure in life and liberty, by enforcing certain rights, even if it doesn’t always go the way we feel it should.

Public order, as it relates to modern society, is an integral part of both law enforcement and community. In contrast to individual rights, public order is all that stands between crime and the public. In times, such as these, with fear and concern about domestic terrorism, the public has shifted its focus away from stringent civil liberties and directed the focus of law enforcement towards security and every effort to abolish and protect against another incident of the 9/11 attacks.

Individual Rights 6

In order to effectively protect America from not just religious extremists, but street terror such as gangs and the ever growing war against drugs, society must be less concerned with protecting every interpretation of the rights of individuals, and be more concerned with protecting public order. Stricter crime legislation, tougher penalties, and better intelligence are the only hope to have a future safe with children. It is time to give the police the power they need to be the frontline defense against crime we pay them to be. Recently, in several states, much controversy has been raised about the issue of whether the police have a right to ask a person for identification regardless of if they have probable cause or not. If the public, criminals and terrorists alike were required to produce identification, the rate of arrests would soar, as police could easily identify fugitives, illegal immigrants, and suspects on the terror watch lists. If a person has not committed a crime, have no ties to terrorist activity, and nothing to hide, why not let the police run their identification through the database? Along with the controversy surrounding police powers, is also the debate about a nationalized identification card that was suggested after 9/11. This would be different from a state driver’s license, and be required for all person in the United States to carry with them at all times so police could more easily check a person’s background. Again, the point is the same, if you have nothing to hide, what is the problem with showing identification to authorities? Public order,

Individual Rights 7

while limiting certain freedoms and individual rights, is becoming more necessary with each passing day. For how much longer can we afford to let gangs control our cities, child molesters rape and kill our children, terrorists plot against our country from within, and drugs stream across our borders; before the public realizes that criminals use our individual rights against us, and public order needs to be restored and justice done. Freedom, and civil liberties are what this country was founded on, but the extensive degree to which some people interpret these freedoms has already cost America too much. The days of leaving your doors unlocked, your windows open, and allowing your children to play in the next neighborhood are a thing of the past. Kids can no longer walk to school without the fear of abduction, or being solicited to try drugs, or even getting shot by a classmate. If that is freedom, perhaps we need to take a harder look at who is free, the criminals or the public? It is high time for public order, as our streets are consumed by crime and fear, and pave new streets reticent of the innocence of times past.

One more disadvantage of both might be the consideration that human rights are mostly possessed by groups, sometimes based on ethnicity, gender, class or other socially constructed characteristics. With few exceptions human rights have traditionally been conceived as those of the individual. Unfortunately, rather than provide a way forward for human rights and occasionally disrupting public order, human rights advocates can be considered one of the most

Individual Rights 8

advantageous and disadvantageous areas of both. For all the struggle and superhuman efforts some endure, and of those who labor valiantly to protect the fundamental dignity and rights of humanity, gross violations of these rights still occur daily.

Group rights prove