Moralistic Views of Eminent Domain - Essay Example

Eminent Domain (ED) also known as ‘condemnation’ is the legal process by which the public body has the legal power to acquire private property declared to be for public benefit by public constitution, statute or ordinance (Missouri Bar Center, 1999). The condemner is the public or private body that has the legal power of eminent domain. In the United States under the Fifth Amendment to the Constitution, the owner of the appropriated land is entitled to a reasonable compensation or the fair market value for the property. The government is supposed to employ ED only if the land is meant for public utility, which may be expansively defined along the lines of public "safety, health, interest, or convenience" (Larson, 2004). The most common purpose is to procure the land to build or expand a public road or highway or a school or a municipal building. In recent years there has been a growing concern over the way that some government bodies have been procuring land from people by exercising their power of ED. It appears that some governments even use this power for the benefit of developers or commercial interest. More importantly the question of morality has risen over the use of Eminent Domain. The Constitution is a philosophy and the bill of rights is written on those philosophical principles. There are claims that ED uses condemnation as a tool but this is contrary to the Constitution and the bill of rights. The pros and cons of the ED will be discussed based on morality issues based on philosophers John Mill and Immanuel Kant. Morality is concerned with what we should or should not do. People encounter social problems at every step in life and need to make judgments based on value. The value judgments have an objective aspect. If a certain act is considered wrong to be done, then it is wrong for anyone to perform that act. According to the utilitarian, Mill (1863) the objectivity of moral judgments comes from a common value we all share—happiness. Kant on the other hand believes that the objectivity comes from our rationality; moral truth is like mathematical truth, which is independent of happiness (Kemerling, 2001). The rules and systems are built in a society based on ‘reasoned insight and personal experiences’ (Bromberg, 1995) that reveal which actions are right or wrong or better than others. This helps in productive choices and later these take the form of moral and ethical laws. Any action or behavior that corrupts culture or distorts the peace of the society is considered wrong. On the other hand, that which contributes to the well being of the society is supposed to be right. This necessitates that ethical and moral laws be formulated and rules established. This is in conformity with Immanuel Kant’s moral theory which is deontological and states that ‘the ultimate principle of morality must be a moral law conceived so abstractly that it is capable of guiding us to the right action in application to every possible set of circumstances’ (Kemerling, 2001). Kant further states that the right actions are those that practical reason would will as universal law. The Philosophy of Rights recognizes the fundamental freedom that all people have, including the right to give up some of these rights (Hocking, 2006). There is obvious method of deciding on the correct action when there is a conflict of rights. Immanuel Kant advocated the ethical philosophy of duty and he emphasized the compulsion to perform certain acts because of obligation. This is also known as deontologism (from the word ‘duty’) and it emphasizes that the professional code of conduct must be adhered to. If duty is used to solve ethical dilemmas, the consequences are ignored. The concept of Utilitarianism is based on the principle of Greatest Happiness for all and greatest benefit for all. The use of ED is often justified by using the utilitarian argument. If the government decides that some houses have to be demolished to make a new highway as it would benefit maximum people, they would do so even at the cost of taking away home from a few because ultimately it benefits many. There have many instances of land procurement where the government tries to justify the costs against the benefits. Balancing costs against the benefits is based on the ethical theory called Utilitarianism. People argue that the Greatest Happiness Principle states that the end result should give least pain and the maximum happiness to the greatest number of people (Mill, 1863). Utilitarianism says we must always do what has the best consequences. Anything that gives happiness has instrumental value. Happiness is supposed to be good and unhappiness evil. Hence the right thing is to promote happiness. A moral act is one that produces positive results and makes the world a better place. So actions are solely judged based on their consequences. Actions are right when they promote happiness and wrong when the reverse takes place. When happiness is the sole end of human action, the criterion is morality. Mill further states that it is better to be a human being dissatisfied than a pig satisfied. Human beings often choose an inferior good. Human beings are above pigs in every respect and even if the decision to grab private land brings dissatisfaction for some time, the end result is always happiness. There can be no higher joy, no pleasure than serving the cause of millions, for instance reducing the time kept waiting on the roads in the traffic. The sole end of human action is the standard of morality, which defines the rules and precepts of human conduct. In taking a decision for happiness, there should not be any vested desires but there have been instances when commercial interests have overtaken public interest. Jeremy Bentham’s theory of utilitarianism also proposed that pain and pleasure determine what ought to be done (SB, n.d.). All laws and social policies should be decided based on maximizing the amount of pleasure in the society and minimizing the pain. There should be no favoritism shown to any individual and the only goal should be to maximize happiness. All issues should be resolved only through reasons. The North Lake project was considered to be in the happiness of most of the people because the razing of an entire neighborhood would benefit in terms of social and economic growth for the entire San Bernardino. If Reason is used according to the Utilitarian theory of Bentham, then the effects on everyone has to be taken into account, now and future, in terms of affordable homes, human beings, family businesses, Churches that would have to be destroyed. These would then have to be measured against the benefits to the society. The argument is that such a proposition is merely based on hope because projects can fail due to various reasons including crime and neglect. Hence hope is not a good reason to base such a decision on. History of failed projects can bring pain to the entire region and happiness cannot be based on hope. Projects like these should not be allowed because the residents would have to share the availability if water and the future cost of water have to be taken into account as well. The only benefit that could produce happiness is the profits that the authorities get in selling water and this profit does not benefit the city or the cities in the region. This project does not produce happiness because it is surrounded by criminals. It will only bring pain and hence even when based on utilitarianism, it is not justified because the theory also determines what ought not to be done. Utilitarianism requires people to balance their needs with others and always links morality to happiness; it even back’s up murder being wrong (Maricopa, n.d.). It only takes on a very flat note that pain is bad and pleasure is good without considering the consequences of the action taken to bring good. It does not even take into consideration the likelihood of the consequence being negative. This theory also holds one responsible for things not done but which if done could have bright happiness. Now from this point of view, if the government does not take action in maximizing happiness, they would be guilty. According to philosopher David Hume, moral decisions involve emotions and not reason (Fieser, 2006). Any amount of reasoning cannot help in taking the moral decision. A distinctly emotional reaction is necessary to make a moral decision. Immanuel Kant argued that emotional factors influence human conduct which should be resisted. According to him, moral act should be based on reason alone and not be influenced by desires and emotions (Fieser, 2006). For instance, the decision of stealing someone’s car is proved to be wrong as it is justified through reason and emotion. It would upset the owner of the car and lead to feelings of guilt for the thief. Besides, as far as reasons are concerned, it violates the rights of the owner of the car, and also poses a risk for the thief as he is likely to be caught and punished. In the case of using the ED, when people are evicted even though they have been paid adequate compensation, the emotions are not looked into. It might be an ancestral property, which has immense value but according to Kant here the decision should be based on reason alone that the rights of an individual cannot be impinged upon. According to Mill (1863) Happiness is the sole end of human action. Happiness is also an emotion and anything that gives happiness has instrumental value. Happiness is supposed to be good and unhappiness evil. Hence the right thing is to promote happiness. A moral decision is one that produces positive results and makes the world a better place. Hence, unless the emotions are combined with reason, the right moral decision would not be taken. Emotions are valuable because they show that we care in not only in how people behave but also about how they feel (Foulds, 2006). Emotional experiences are pleasurable sensations and give satisfaction to human beings. Hence when the question of destroying an entire neighborhood arises, decisions have to be based on emotions combined with reason. Foulds (2006) further clarifies that emotions take into account various factors or settings like the subject or the person, the physical context, the cultural context. The object, the feeling and the cultural context leads to psychological changes that take place. Thus emotions are experiences and future perceptions are based on these perceptions. Hence it is not pure feeling but decisions are backed by reason due to past experiences. Only emotional decisions can be wrong just as decisions based on reason alone would neglect the human factor or the psychological impact that decisions can have. Nevertheless, emotions can be irrational, unreasonable and inappropriate when people decide based on their objective experiences. At the same time, reason alone cannot compel us to take moral decisions. Reasons would always give importance to self-interest (Halliday, 2003). We have to be concerned about feelings and sufferings of others before reaching a decision. In sharp contrast to this is the Utilitarianism theory, which according to John Stuart Mill (West, n.d.) states that an action is right if it tends to promote happiness and wrong if it tends to produce the reverse. The happiness here relates not just to the happiness of the performer but all that are connected to it. It differs from the ethical theories where the right or the wrong act depends upon the motive of the agent whereas Utilitarianism believes that it is possible to perform a right deed from a bad motive. The term ‘happiness’ is ambiguous, and if the public authorities are left to take decisions based on reason alone, personal interest would influence their decisions. This would also impinge upon the rights of the dwellers to receive justice. Kant held that there is only one Categorical Imperative of morality and believed that human life deserved the ultimate moral respect (Kemerling, 2001). To overcome the perceived shortcomings, attempts were made to combine this belief with the utilitarian theory. At the same time, society cannot be left to determine its own happiness. This would lead to chaos and distortions. In the case of Kelo-vs-the city of New London, the city was ordered to get rid of slums and come up with residence for the wealthy or posh hotels that would contribute to the tax revenue. The city had a waterfront and hence would fetch handsome revenues through which the developers too benefit (Gardener, 2006). This was a disregard for the rights of the residents merely for the sake of enhancing the tax revenue. According to the utilitarian theory it is correct because the benefits to society of taking the action outweigh the costs to society. In this theory the good comes prior to the right and the moral rules are instruments for achieving the good. The utilitarian and the cost-benefit analysis should not be applied here because of their callousness towards the individual, his rights and the processes by which those rights are exercised. A right of an individual is his protection against the ‘utility monsters’ according to Langlois (n.d.). We live in a society of pluralism. This holds the view that truth itself is relative; it depends upon the situation, environment, and the individual. What was considered ‘sin’ a few years ago is now a part of culture. Cultural Relativism suggests that nobody has any right to judge or punish anyone, which means that the society has no standards at all. Kant believes that the moral worth of an action depends wholly on its intention. To act rightly is to act from duty. Duty can be imposed from oneself, it is internal. Our reason imposes rational principles on us to govern our actions. Categorical imperatives, that are action from duty, are moral actions. For example, preserve your own life and be honest. Such actions are performed not as a matter of principle but as a means to achieve a certain goal and hence have no moral value. If actions from duty cannot be followed by everyone as universal law, then it is not a moral act; the action is wrong. For example, evicting dwellers from a particular area to gain taxes cannot become a universal law because at other times the authorities can reverse the decision. Acquisition of property is only a means to acquire happiness. Thus, while one view suggests that for maximizing happiness, acquisition of property is not morally wrong because it would bring happiness to many, it is against the rights of the individual. Besides, it also deprives some of the same happiness that this act is supposed to bring. Actions from duty cannot become universal law because under different circumstances the same authorities would change their decisions. It is only a means to achieve a certain goal and hence have no moral value. The right decision would then be to base any decision based on emotions and reason and not reason alone because moral behavior involves treating others with respect. References: Fieser, J., (2006), Ethics, The Internet Encyclopedia of Philosophy, 07 March 2008 Foulds, S., (2006), A PHILOSOPHY of the EMOTIONS, 07 March 2008 Gardener, B., (2006), Kelo vs. City of New London, 07 March 2008 Halliday, R., (2003), Enforceable Rights A Libertarian Theory of Justice, Ch 2 Why should we care about justice? 07 March 2008 Hocking, T. D., (2006), Overview of Bioethics, 07 March 2008 Kemerling, G., (2001), Kant: The Moral Order, 07 March 2008 Langlois, R. N., (n.d.), COST-BENEFIT ANALYSIS, ENVIRONMENTALISM, AND RIGHTS, 07 March 2008 Larson, A. (2004). Eminent Domain, 07 March 2008 Maricopa (n.d.), Kant-vs-Mill, 07 March 2008 Mill J S (1863), UTILITARIANISM, What Utilitarianism Is. Missouri Bar Center, (1999). Eminent Domain, 07 March 2008 SB (n.d.), Corporate Welfare-Eminent Domain & Redevelopment. Meditations, Poetry, Short Stories., 07 March 2008 West, H. R., (n.d.), Utilitarianism, 07 March 2008 Read More