Rights and Privileges

Perhaps one of the most bizarre aspects of the debate on health care reform is about whether or not health care should be considered a “right.”    The whole concept of “rights” and the difference between “rights” and “privileges” is tricky.   There are various ways to approach the issue.

Natural rights theory: Natural rights theory, dating back to Locke, seeks to find rights inherent in nature.   To be human, you need to eat, have shelter from the elements, and be able to fend for yourself.  From that Locke deduces a natural right to life (you need to be alive to be human), liberty (freedom to take care of your needs), and property (the ability to have stuff needed to survive).    This theory seems persuasive, though it ultimately rests on certain unfalsifiable assumptions and cultural specific interpretations.

First, of course, is the fact that despite a claim to be natural, this is a normative view on rights.  It is not a theory that posits rights as transcending human volition or action.   Compare rights with gravity.   Gravity affects you no matter what, you cannot get around its pull.   “Natural” rights have been violated throughout history, and there is no force leading people to respect those rights.  Therefore, claims on natural rights are normative “ought” claims rather than testable “is” claims.  Often such claims rely on appeal to emotion for support   If someone asks “don’t you think everyone has a right to live?” with the idea that saying ‘no’ seems weird or cruel, that’s not a true philosophical argument.    Other times people put weird linguistic tricks in this.  One person once asked “don’t you think you own your own body,” suggesting that if I didn’t, then that means someone else has the right to ownership.   Of course, ownership is a construct of a culture with private property, where all objects can be owned.  Since I am a subject, and my body simply is, I do not own it, I simply exist.   No one “owns” it, it is not property.

Positive rights theory: The initial response to the weaknesses in natural rights theory is to put forth positivism — rights are whatever the legal authorities say they are.   If the Constitution and the government declare a right to health care, then ipso facto, it is a right.  It need not rest on nature, religion, or any other transcendent condition.  The problem here, of course, is that this seems to shed legitimacy on all sorts of questionable practices (slavery, Jews in Nazi Germany, etc.)   The problem, bluntly, is that positivism takes rights from being a normative statement about what we think “ought” to be, to instead be a descriptive statement about what “is.”   What “is” almost always is a creation of the most powerful and often corrupt forces in a polity.  Do we really want to sacrifice the normative power of human rights arguments for a cold descriptive “is” statement?

Democratic theory: Another view of rights is overtly political — the only valid rights are those that allow a democratic polity to continue.  You need freedom of speech, of religion, of assembly, equal rights to vote, and all sorts of things to assure a participatory democracy.   Usually these folk are overt about the normative aspect of their project — they believe in democracy, defend that belief, and argue that it makes sense to tie a concept of normative rights to the goal of having a functional democratic polity.   But how far do you take this?   Since the wealthy can buy more lobbyists and political influence, does a democracy require limits on free speech, or perhaps income redistribution?   Must universal health care be a right so that all are able to be healthy enough to participate democratically?   And what about social democracy as opposed to liberal democracy?  The former focuses more on economic conditions, the latter on political freedoms.

Perhaps the most persuasive theory is Rawl’s notion of a veil of ignorance.  If you would be ignorant of what place in society you will find yourself — the beggar, the laborer, the wealthy, the powerful — what kind of rights would you support?   The idea here is that people would want to have optimum rights and policies for everyone in society, since theoretically each individual could end up in any social role.   I find this approach quite compelling, but it is subjective.  And, of course, it’s hard for people to really think as if they had a veil of ignorance.

Social Constructivist theories: This approach looks at rights as human concepts, not grounded in anything but human choice, yet differs from positivism in embracing a strong critical component.    Consider:  In objective or “natural” reality rights do not exist.   That reality simply is — actions have consequences, people have to deal with those consequences, and fate can ehand out wealth or devastation regardless of how one has lived.   Subjective understandings of rights, on the other hand, is an individual’s personal point of view — what normative rights he or she thinks should exist.  One might be a positivist, a natural rights proponent, a Rawlsean or simply go from the gut.   One’s subjective ideals are fine so long as one is alone, once you deal with others who have different beliefs, you have to compromise or compete; a society or community cannot reflect any one person’s specific subjective beliefs, and a society where everyone thinks the same is likely impossible and undesirable.

In the realm of social reality, therefore, people build sets of rights that they want to guarantee for their people.  This can include life, liberty and property.  It can also include a right to education or a right to health care.   It might include a right to paid vacation, or a right to shoot people of another race, deeming them subhuman.  Since any social construct is a contingent human creation, all conceptions of rights must first be created, then they can be either reproduced or transformed.   The right to own slaves was transformed into a right for all to be free in 19th century America.  Unlike positivism, social constructivist notions of rights do not take a given set of rights as legitimate just because it exists.  In fact, it calls on people to critique, try to change, and if driven, violate existing rights in order to transform what they see as wrong (or defend what they see as right).    There is no finally measure as to what rights are “best” or ultimately “should” exist, only human freedom to create normative rights, and then change our minds about what we’ve created.

Individuals are the players in this drama by having to make a choice to reproduce or try to transform rights.   But no individual can do this alone, you need to convince others to think differently if there is to be a cultural shift in the notion of what is a right or not.

So in the health care debate the question should not be “is health care a right or privilege?”   Rather, it should be “do we want a right to health care, and if so, what does that right mean?”   Does it mean absolute equal treatment, a right to basic health care (with the healthy able to have better access), access to ‘affordable’ care, or what?   Does it mean a single payer government system?   Those are questions we are free to answer however we want as individuals, and if we can convince others to agree, then we can construct or transform existing systems of rights.   Sometimes we’ll make things worse by doing so, sometimes better.   But I like to think that over time we humans generally learn from our mistakes.

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  1. #1 by Jeff Lees on January 22, 2010 - 05:31

    Three posts in three days, someone’s on sabbatical eh? 🙂

    This is a great post Scott, a beautiful description of rights theory that is engaging and in depth. I think your frame of the healthcare debate is very perceptive and profound. We should be asking these fundamental questions about our values as a democracy.

  2. #2 by Jim Sullivan on January 23, 2010 - 01:39

    I prefer the idea of natural rights, with all of its flaws, to all other explanations.

    I’d also add that you can’t have a right to something that requires someone else to give of themselves or their property. Of course law can force someone to pay taxes that pay for your healthcare. But it’s still taking something from someone else by force or the threat thereof. The fact that some people might consider it their patriotic duty to pay taxes doesn’t change the fact that it is type of theft. Those people just think the mugger deserves their property. I believe I deserve to keep it and use it as I see fit, as long as I don’t harm or take by force from someone else.

    • #3 by Scott Erb on January 23, 2010 - 02:15

      It gets complicated though. Not only is our money actually federal reserve notes created by the state for the purpose of exchange, but the entire structure is protected by rule of law and state provided infrastructure. So it’s not like it might be when you had your property and stuff you made and could trade with others. By entering into a state-run legal monetary arrangement, it creates a rationale for taxation that does not make it theft, but rather an involuntary fee for services you implicitly agree to by using money and the legal and physical infrastructure. Of course, no one gives you an opt out choice, so in that sense, you’re forced to participate, meaning there is a level of coercion there.

      The kind of system you envision would be all but impossible for a large modern polity. But it could be imaginable for a smaller system. Sometimes I think we’d be better off with numerous small sovereign units which could experiment with different kinds of systems, and people could move to places that reflect their values. But that gets utopian and unrealistic. Sometimes I wonder where we’d be if we kept the Articles of Confederation as our Constitution.

      • #4 by Jim Sullivan on January 24, 2010 - 14:18

        ” By entering into a state-run legal monetary arrangement, it creates a rationale for taxation that does not make it theft, but rather an involuntary fee for services you implicitly agree to by using money and the legal and physical infrastructure.”

        An involuntary fee. Pure Newspeak, Scott.But then again, we’ve always been at war with Eastasia.

        Still a tax.

        “Of course, no one gives you an opt out choice, so in that sense, you’re forced to participate, meaning there is a level of coercion there.”

        Beyond coercion, Scott. Typically, when someone is being coerced, they have the option of saying “No”. Try telling the goverment “No” and let me know how that works out for you. Force or the threat therof, pure and simple.

        Pay your taxes or be fined. Pay your fine or have men with guns show up and place you in prison.

        Or, you could actually be appointed to a prominent position like Geithner, Killefer or Daschle for cheating on those taxes.

  3. #5 by Mike Lovell on January 23, 2010 - 15:22

    “The kind of system you envision would be all but impossible for a large modern polity. But it could be imaginable for a smaller system. Sometimes I think we’d be better off with numerous small sovereign units which could experiment with different kinds of systems, and people could move to places that reflect their values. But that gets utopian and unrealistic. Sometimes I wonder where we’d be if we kept the Articles of Confederation as our Constitution.”

    I believe this is somewhat what the founding fathers were looking at by attempting to keep the majority of the power with the states. The entire complication of interstate commerce kind of threw a wrench in the mix, and is used to a certain degree to influence the need for a bit more federal control over issues.

    I don’t believe the idea of my state or your state operating on its own basis separate from neighboring states is necessarily utopian or unrealistic, as long as the state itself, rather than the federal government receives the majority of taxed funding to cover its own issues. But, you may be right…California is off the wall compared to tehir neighbors, and to a degree that was the utopian dream state in action, with little success obviously.

  4. #6 by renaissanceguy on January 28, 2010 - 13:32

    The Declaration of Indpendence says that we are endowed by our Creator with rights. They are not given to us by ourselves or by each other or by any government body. They are given to us by God.

    Whichever theory sounds most plausible to me, I cannot conceive of something being a right if it is a commodity that one has to pay for. I don’t see how there could be a right to an automobile or to gourmet food or to an operation. Those things are privileges that I have to pay for (or that somebody can give me if they choose to). I have no right, in any meaningful use of the word, to something that I cannot acquire for myself fairly with my own means.

    It was wrong to ever consider education a right. Our ancestors would have laughed at such an absurd idea. The Declaration of Indepence talks about “the pursuit of happiness” not a guarantee of happiness. Education is a privilege, one that we have decided to give every child in our country. People who do not pay taxes should see it as a generous gift from those who do.

    • #7 by Scott Erb on January 28, 2010 - 17:35

      The Declaration of Independence is, of course, a representation of the opinion of people (Christians and Deists for the most part) about rights they wanted to use to justify separation from Great Britain. Claims about rights coming from God are beliefs that one can hold or choose not to hold. I think communities do develop conceptions of what they want to value as rights, and practically speaking, that is where rights come from. We obviously don’t have a right to life, liberty and property (pursuit of happiness was a poetic way to state that) in a state of nature unless we are able to work to secure those rights. As a community all those rights cost money, including police forces, legal systems to enforce rights, etc.

      So I think a political “right” is a contingent concept, defined in context (time, place and culture), not something universal. Yet I would also posit moral “rights” as oughts statements about transcendental principles. Their existence cannot be proven, but dialogue and belief about them can provide moral direction. Perhaps we mix up real in the world existing political rights with transcendent posited but unprovable moral/ethical rights too often. The latter informs the former, but one can also argue for political rights even if one thinks there are no transcendent moral rights (e.g., if one believes we’re just carbon based life forms with no essential purpose).

      Does that make sense — political rights that we construct as one concept, transcendent moral or ethical rights that might come from a god, human nature, or some other fundamental aspect of existence as another concept?

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