Responsibility & Individual Rights Consciousness
Individual rights consciousness is hard-pressed to assign legal responsibility for unacceptable societal conditions to individuals who are not personally blameworthy.
Individual rights theory thwarts the capacity of the legal system to correct generalized societal wrongs. With its grounding in individualism, legal liberalism limits a person's liability for wrongs that are not that person's own doing. The law is more likely to redress an injury that is directly attributable to the intentional actions of an identified party than a harm which cannot be labelled as someone's fault. Unacceptable conditions that are personal to the rights-claimant are more likely to be recognized as legal injury than wrongful conditions that exist as generalized social phenomena.
Constitutional law doctrine abounds with examples of such constraints that liberal atomism places on legal liability. For instance, the narrow concept of 'purposeful discrimination,' which defines the scope of duty for state officials under the equal protection clause, ties state liability for discriminatory treatment to governmental 'fault.'134 Also, late developments in the standing doctrine reinforce the liberal premise that law is to be primarily concerned with the misguided conduct of blameworthy individuals whose actions are outside the social fabric.135
The problem here is that the automistic notions of 'fault,' 'causation,' and 'responsibility' undermine the possibility of achieving through the legal system those substantive values cherished by the liberal political program. Professor Alan Freeman makes the point succinctly:
The fault concept gives rise to a complacency about one's own moral status; it creates a class of 'innocents,' who do not feel any personal responsibility for the conditions associated with discrimination, and who therefore feel great resentment when called upon to bear any burdens in connection with remedying violations.136 [A]s a result, the actual conditions of racial powerlessness, poverty, and unemployment can be regarded as no more than conditions--not as racial discrimination. Those conditions can then be rationalized by treating them as historical accidents or products of a malevolent fate, or, even worse, by blaming the victims as inadequate to function in the good society.137
