Michael Sandel and Alasdair MacIntyre, though perhaps in disagreement on many matters of public policy, are alike in viewing man as a social animal whose life derives meaning ftom its civic context. Every day, in most big cities and many small ones, we experience the problem. For the past three decades or so, the drift in public policy has been toward maximizing individual liberty and away from enforcing communal control. Public drunkenness has been decriminalized, the mentally ill have been deinstitutionalized, public solicitations have acquired broader constitutional protection. Many of these changes were the result, not of public debate or legislative effort, but of court decisions that have endowed individuals with more, or more readily enforced, rights.
Courts are institutions whose special competence lies in the discernment and application of rights.
This means that to the extent courts decide matters, the drift of policy will tend to be toward liberty and away from community. Such an individual rarely constitutes much of a threat to anyone, and so the claims of communal order often seem, in the particular case, to be suspect or overdrawn. As the number of unconventional individuals increases arithmetically, the number of worrisome behaviors increases geometrically. The police have no easy response. To all of them, any intervention brings the risk of adverse publicity, hostile law suits, and political debates in which, their experience tells them, rights are trumps.