SMU Science and Technology Law Review

ORCID (Links to author’s additional scholarship at ORCID.org)



Liberal communitarianism suggests that the balance between individual rights and the common good must be adjusted as historical conditions change. Much attention has been paid to violations of rights, e.g., by the police, for good reasons. This Article examines three new technologies that undermine public safety, a key common good, and asks whether they should be banned. The 2020 pandemic revealed that scores of millions of Americans objected, not merely to government mandates to take measures that are likely to spare fellow Americans a severe disease or death, but even to respond to moral calls, especially wearing a mask. This Article examines three other areas which exhibit the same communitarian deficit. The best-known version of communitarianism is the East Asian school, which puts great emphasis on the value of the common good and one’s obligations to the community.3 This school of thought tends to view the individual as a cell that is part of an organic whole and meaning is derived from contributions to whole. In this version of communitarianism, there is no fundamental place for liberty or individual rights, although some may be granted, if doing so helps the common good.

East Asian communitarianism is roundly rejected by Western intellectuals

and all others who consider individual rights and liberty a core value. Liberal communitarianism has corrected the main flaw of the Asian version by combining two fundamentally opposing philosophies: liberalism and communitarianism. Liberal communitarianism assumes from the outset that a society ought to treat both individual rights and the common good as basic moral principles and that neither should be assumed to a priori trump the other. It does not overlook the fundamentally incompatible nature of liberalism and communitarianism; rather, it seeks to embrace their incompatibilities, because one’s strength is the other’s deficiency. Liberal communitarians recommend a constant balancing of the two sets of moral principles, requiring legislators and citizens alike to weigh the common good against individual rights to create policies and social norms that protect both. When the common good and liberty come into conflict, liberal communitarians must rule which should take precedence.

The Fourth Amendment captures extremely well the basic liberal communitarian

thesis. Unlike the First Amendment, which states that “Congress shall make no law,” the Fourth protects against “unreasonable searches and seizures,” which on the face of it recognizes a whole category of searches and seizures that are constitutional—those that are reasonable, i.e., in the public interest. Moreover, the Fourth Amendment provides a mechanism for determining when searches and seizures are allowed: the courts. The courts, in turn, are affected by and have an influence on the public discourse as well as the legislature. Societies constantly correct the balance between individual rights and social responsibilities as historical conditions change. Thus, after the 2001 attacks on the U.S. homeland, Congress rushed through a series of new security measures. When no new such attacks occurred over the next decade, these measures where reigned in. In short, liberal communitarians hold that no society can or should be designed according to one set of principles, that they can be more liberal or more communitarian, and that the relative weight accorded to the two sets of principles much change within history.

Recently, much attention has been paid in the United States, for very compelling reasons, to violations of individual rights by the police, to racism embedded in many American institutions, and to high tech corporations that invade privacy among others.19 A cursory examination of the daily press will find many more such reports. More attention should be paid to those instances in which the imbalance is titled the other way: the common good is unduly neglected. Three case studies follow, each of considerable weight in terms of the scope of their effects on public safety, arguably the leading common good, or what the courts tend call the public interest.