It’s been fashionable of late to reduce all manner of social struggles and conflicts to the question of human rights. It’s hardly surprising because the concept of human rights has indeed become one of the central concepts in modern political theory (and for good reasons, naturally).
The first thing that comes to mind is to infuse the practice of politics with moral thinking. Or, more succinctly, to bring the state (or the government, if you like) more in line with ethical principles and thought in order to make it more responsive to demands for redressing whatever inequalities still exist or are perceived to exist in a civil society. And to that end, the concept of rights is ideally suited because it tends to endow all humans (and in a more restrictive sense, the citizens of a political community) with equal moral worth.
This is to say that these rights, to the extent they’re recognized, represent an extension of the moral equivalence of persons. Each such right – again, insofar that it’s recognized! — is an aspect (or a dimension, if you like) concerning which all members of a civil society are presumed equal.
This privileged status of “rights” wasn’t lost on political activists or the presumptive leaders of the many social movements that have sprung in our recent past and spread throughout the globe like wildfire. From John Stuart Mill to Martin Luther King, Jr., from Betty Friedan to Harvey Milk, from NAACP or Planned Parenthood or NRA to ACLU – each of these organizations or individuals have used “rights” as a banner, a call to arms under which not only to mobilize sufficient public support behind the heralded cause but also to carry the fight to a successful conclusion.
Just think. Everywhere you look, in every significant social gain of late – from universal suffrage to civil rights, from gay rights to the rights of the disabled, from Brown v. Board of Education to abortion rights – there’s this magic word “rights” affixed to it, attesting to its indefeasibility. And no wonder, because there’s no better or more effective way of espousing a cause other than by couching it in terms of “the moral equivalence of persons.” Only then you’d be likely to muster significant support from all those who believe themselves to be discriminated against in the relevant respect (and demoralize the opposition in the process).
So yes, there’s no surer way of guaranteeing the passage of some key legislation and, generally speaking, making progress towards a more just and equitable society than by representing the issue as though a matter of human rights. For indeed, there’s no arguing against morality. And once the argument comes down to, what’s in essence, a moral argument, it’s already been won.
It’s only a matter of time.
Are there limits to this strategy, circumstances, in other words, when such a liberal application of the “rights” concept might be inappropriate, let alone challenged?
As to the latter, we can almost be certain because no one in their right mind would let their opponent get away with murder and claim the “rights” status to a hotly-debated issue if the claim is defeasible. Consequently, it behooves us, if for practical reasons only, to see whether we can stretch the use of the term and how far. Miscalling the situation is one sure way of guaranteeing the defeat (or at least postponing the possibility of victory by getting bogged down with time-consuming arguments whether the issue at hand is, properly speaking, a right).
It’s been suggested by one of the commenters that the idea of
healthcare being a “right”… is absurd on its face. [Because] rights are by nature innate; and as some would argue, Thomas Jefferson comes to mind, we are born with them, and [they are] not given to us. There are civil rights which frequently are intermingled freely among those left leaning denizens; however civil rights are not rights in the true sense of the word, but legislated by a majority of legislators
The remark is correct in the first instance, partly incorrect in the second.
Of course, it’s the case that passing a piece of legislation is not a reliable litmus test as to whether something is a right. The so-called “innate rights,” for example – to life, property, and so forth – are not so much a matter of legislation as of recognition: since they’re considered “innate,” their legislation (as the commenter would have it) is unnecessary.
But the argument goes further, which is to say that if “recognition” is the critical element in deciding whether something is an “innate right,” then it would stand to reason that legislation might lag.
Indeed, all “innate” rights may be said to be such even before our recognizing them as such – which is to say, whether or not we recognize them as so. Consequently, if our recognition of them may lag (if for no other reason then, say, “less-than-perfect consciousness”), the same is doubly true of legislation, although for different reasons, naturally (such as resistance or inertia, to name but two). And so it follows that insofar as “innate rights” are concerned, neither our recognition of them nor legislation can serve as valid criteria. In this particular respect, the commenter is indeed on target.
The problem lies with what the commenter omits: in seeming to define all rights as if “by nature innate,” the commenter as good as obliterates a perfectly valid distinction – namely, between innate rights and rights that come with membership
One obvious result would be to count the rights enumerated in the Bill of Rights (see Part II) among innate rights; the other possibility, rather unthinkable, would be to count them as no rights at all.
But surely, we’ve seen that such things as the right to trial by jury, the right to due process, or the right to privacy – made evident, for example, via protection from unreasonable searches and seizures — are hardly “innate” but are “member-related” rights: they come with membership in a political community, form an integral part of it, in fact, and wouldn’t make much sense apart from it.
And the same, I contend, applies to “voting rights,” which, too, may be said to be constitutive of the community in question, on the order of, say, the bylaws or rules of order as regards their perpetuity or some other such thing.
Civil rights present an anomaly of sorts in that they may count as either.
For one thing, they’re certainly “member-related” to the extent they spell out a code of conduct that is binding on each member of a political community. And yet, they’re also “innate” insofar as proper behavior or conduct vis-à-vis all others is not only obligatory on the part of every member but also their inherent right to be treated thus.
In short, we’re bound by our morality to regard all persons with respect and as our moral equals. Indeed, we shall see that most, if not all, member-related rights are of this kind.
It all depends on the context and point of reference
Which suggests another way of drawing the necessary distinction. If “membership rights” pertain first and foremost to rights due to one in his or her capacity as a member, then perhaps what we refer to as “innate rights” speaks to the rights of persons qua persons.
I should add that a person’s membership in a political community doesn’t negate their inherent rights (which is to say, their rights as persons). If anything, they’re primary or first-order rights unto which all rights of the second-order – member-related rights being the classic example –may be added as well.
Notice, however, that what I have termed as “first-order rights” (to refer to the inherent rights that come with personhood) require no validation whatever — whether by passing a law, a mandate, or a piece of legislation. Even their recognition as such is not necessary for their ontological status. Suffice to say, they articulate, instead, some of the basic assumptions concerning the moral worthiness of persons.
And because of that, this set of assumptions is, by nature, open-ended and incomplete – an infinite set, at that – a set whose elements are neither enumerable nor fully definable (since “the moral worthiness of persons” is itself an open-ended, limitless concept).
What of members’ (i.e., second-order) rights? Are they also independent of human law-making and, what comes before it, a cognizance?
It can’t be so because the notion of membership entails the notion of rules, whether by way of bylaws, a charter, or whatnot. It’s arguable, therefore, that membership is predicated by those very rules which, in turn, confer rights and privileges to the individual members.
It is on this score that the commenter is dead wrong. For member-related rights define an essential category of rights, more essential in many respects than the kind of rights we call “innate” and consequently construe as an extension of personhood. And the reason is, they form the foundation of a political community.
Indeed, any kind of progress towards a more just and equitable society can only be measured in terms of citizens’ rights. There’s no other yardstick. Consequently, they can’t be ignored!
How can we justify the claim that “healthcare being a ‘right’ is absurd on its face”?
Granted, the disclaimer was made in terms of an impoverished set of categories, making it only trivially true. For indeed, healthcare is not just any innate kind of right in a sense defined. And it won’t do to argue that ’tis so because the right to healthcare derives from the right to life. A far stronger counterargument can be made – namely, that healthcare isn’t a right at all, whether in the original or the extended, membership-derived sense!
Because of contingency! No innate rights which come with personhood, not even member-related rights, can be subject to any contingency.
This point is more difficult to grasp in the second instance rather than the first (because all “innate rights” may be said to be unconditional). Consider, however, the fact that all membership rights (while “contingent” in some remote sense on the existence of a political community, which very community validates them in turn) – are, in effect, an extension of the rights of personhood! I’m talking about an extension of the individual persons’ (innate) rights to their rights as citizens, all bona fide members of a political community!
All the citizens’ rights alluded to earlier — whether included in the original Bill of Rights or the amendments — are but the inalienable rights of persons — this time, however, as bona fide members of a political community!), property transliterated, one might add, to fit what I regard as humans’ natural habitat – the political environment. End of story!
Indeed, there’s nothing contingent about voting or civil rights except in the most trivial sense — namely, that all such rights are “contingent” upon the existence of a political community. But aside from this somewhat minor and inconsequential point, one could argue that given the context of the American society and polity – to take but one instance – granting those rights (or extending them, as the case may have been, to include the great majority of the citizens) didn’t cost a thing.
True, the Civil War did cause a great deal of havoc; along with extending the franchise to African-Americans, it did contribute to diminished political and economic fortunes of the South. And the same, I suppose, could be said for extending the franchise to women: it had brought about a definite realignment of political power.
But these are extraneous considerations, having more to do with inter-societal relations and redistribution of political and economic power, less with the issue at hand. For our society, taken as a whole, could well afford to grant those rights, although there’s no denying there would be some losers and some winners.
In short, affordability was never in question, and that’s the crux of the matter.
How, then, does healthcare become disqualified as a right on these grounds?
In terms of affordability and, in the final analysis, contingency? Because putting it into effect would require nothing less than a prosperous society?
In short, its viability as a right is contingent (this time in the proper, meaningful sense) on the material conditions of civil society. And it just so happens that some human societies might be able to provide healthcare benefits to all their members (again, because they can afford it), whereas others might not. But no first-order or second-order right, as I’ve argued time and again, can be subject to a contingency, material or otherwise.
To speak of human rights as being dependent on circumstances, least of all, on whether they’re affordable, is not only a linguistic misnomer; it as good as obliterates the concept of rights. QED.
Does it mean that the cause of universal healthcare must suffer as a result or, worse yet, go in defeat?
Not at all!
There’s a perfect language in which to voice the present concerns.
I’ve spoken earlier of healthcare in terms of benefits – a most natural turn of phrase, methinks! In the same vein, we could well expand our universe of discourse and speak of social or societal obligation.
And that’s another, rather fortunate turn of phrase because it reflects the reality of the situation. For it’s arguable in fact that society, and a prosperous society at that, ought to consider the well-being of all its citizens as one of its utmost priorities (and this certainly includes healthcare) – if only for its own sake.
Notice, however, that obligations don’t create rights: they exist independently of rights, and the demands generated by obligations do not have the status of rights.
Obligations, furthermore, can be conditional, temporal, and contingent, subject to revocation if and when the circumstances may warrant. Rights are none of those things, and the act of revoking them is sufficient grounds for dissolving a civil society or the state itself.
Disallowing thus the status of a “right to universal healthcare” and couching the debate instead in terms of social benefits and societal obligation is not that much of a disadvantage, as we shall soon see.
True, this dubious move does deprive the proponents of what has been thus far their chief weapon – the moral imperative! Even so, a far more compelling argument can be made – namely, that a civil society such as ours, for example, should be morally obligated to provide universal healthcare to all, especially since it can afford it!