(A version of this article was published first in Blogcritics, Politics section)
It's been fashionable of late to reduce all manner of social struggles and conflicts to the question of human rights. This shouldn't be 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 the idea of infusing the practice of politics with moral thinking, or to put it more succinctly, of bringing the state (or the government, if you like) more in line with ethical principles and thought so as to make it more responsive to demands for redressing whatever inequalities still exist, or are perceived to exist, in a civil society. 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. Which 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 to the extent that it's recognized, being an aspect, or a dimension, if you will, in regard to which each and every member of a civil society is presumed to be equal.
This privileged status of "rights" hasn't been lost on political activists and the presumptive leaders of the many social movements which 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 that has been won in the past century or so – from universal suffrage to civil rights, from gay rights to the rights of the handicapped, from Brown v. Board of Education (which overturned the "separate but equal" clause) to abortion rights – there is 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 are you liable to muster significant support from all those who believe themselves to be discriminated against in the pertinent respect but more importantly perhaps, to demoralize the opposition.
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 has been couched in essentially moral terms, it's already been won. It's only a matter of time.
Are there limits to this strategy? Are there circumstances, in other words, when such a liberal application of the "rights" concept might be inappropriate, let alone challenged? Of 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 only for practical reasons, to see whether the use of the term can be stretched, 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 as to whether the issue at hand is, properly speaking, a right).
It's been suggested by one of the commenters (see the first of this four-part series) 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. It's certainly true that passing a piece of legislation is not a reliable litmus test as to whether something is a right. Certainly the so-called "innate" rights – 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 prior to our recognizing them as such – which is to say, whether or not we recognize them as so. Consequently, if our recognition of "innate rights" may lag (if for no other reason, let's say, than "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). It follows therefore that insofar as "innate rights" are concerned, neither our recognition of them nor legislation can serve as valid criteria. So in this particular respect, the commenter is on target.
The problem lies with what the commenter omits. For in seeming to define all rights as if "by nature innate," the commenter as good as obliterates a perfectly valid distinction – namely, between rights which are innate and those which 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 protection from unreasonable search and seizure, 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. The same could be said for "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 its perpetuity or some other such thing.
Civil rights present an anomaly of sorts in that they may count as either. They're certainly "member-related" rights to the extent they spell out a code of conduct that is binding on each and every member of a political community. And yet, they're also "innate" insofar as proper behavior or conduct with respect to others is not only obligatory on the part of, but also an inherent right of, moral agents: we're bound by our morality to treat 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 therefore on the context and your point of reference.
Which suggests another interesting way of drawing the necessary distinction: if "membership rights" pertain first and foremost to rights which are due to one in his or her capacity as a member – whether of a social club, a civil society, or a full-fledged political community – then perhaps what we refer to as "innate rights" speaks to rights of persons qua persons.
It should be added 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 other kinds of rights of the second-order (and members' rights is the classic example) may be added. Notice, however, that what's been termed as "first-order rights (to refer thus to the inherent rights which come with personhood) require no validation whether by means of passing a law, an edict or a piece of legislation. Even their recognition as such is not necessary for their ontological status. Suffice to say, they form rather some basic assumptions concerning the moral worth of persons. And because of that, this set of assumptions is, by nature, open-ended and incomplete – an infinite set, at that, whose elements are neither enumerable nor fully-definable (since "the moral worth of persons" itself is an open-ended, limitless concept).
What of members' (i.e., second-order) rights? Are they also independent of human law-making and, what comes prior to it, cognizance? Obviously, 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 in fact that membership is predicated by those rules which, in turn, confer rights and privileges to the individual members.
It's on this score that the commenter is dead wrong. For member-related rights define an important category of rights, more important in many respects than the kind of rights we call "innate" and construe thus 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 are we to justify then the claim that "healthcare being a 'right'...is absurd on its face"? Granted, the disclaimer was made in terms of a rather impoverished set of categories, which makes it only trivially true. For indeed, healthcare is not any innate kind of right in the sense defined. And it won't do to argue that 'tis so because the right to healthcare derives from the right to life. In fact, a stronger counterargument can be made – namely, that healthcare isn't a right at all, whether in the original or the extended, membership-derived sense.
Why so? Because of contingency, that's why! 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 the fact, however, that all membership rights (while "contingent" in some remote sense on the existence of a political community which, in a manner of speaking, validates them in turn) – are in effect an extension of the rights of personhood – of the (innate) rights of individual persons to their rights as citizens, all bona fide members of a political community, that is. Indeed, all the citizens' rights alluded to earlier, whether stated in the original Bill of Rights or those which have been added by way of amendments, are but the inalienable rights of persons (this time, however, as bona fide members of a political community), property transliterated, one might add, so as to fit what I regard as humans' natural habitat – the political environment. End of story.
Indeed, there's nothing contingent about, say, 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 rather minor and inconsequential point, one could well 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; and along with extending the franchise to African-Americans, it contributed to diminished political and economic fortunes of the South. And the same, I suppose, could be said for extending the franchise to women: it 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 whole, could well afford granting those rights, although there's no denying there were 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 the aforementioned grounds – in terms of affordability, that is, and in the final analysis, contingency? Simply because putting it into effect would require nothing less than a prosperous society. In short, its viability as a right is made contingent (this time in the proper, meaningful sense) on the material conditions of a civil society: it just so happens that some human societies might be able to provide healthcare benefits to all of its 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 therefore or go in defeat? Not at all! There is a perfectly good language in which to voice the present concerns. I've written already of healthcare in terms of benefits – a most natural turn of phrase, don't you think? By the same token, we could expand our universe of discourse and speak of social or societal obligation. And that's another, rather fortunate turn of phrase, I'd say, if only because it reflects the reality of the situation: for it's arguable in fact that a society, and a prosperous society at that, should consider the well-being of all its citizens as one of its utmost priorities, and this certainly includes healthcare.
Notice, however, that obligations don't create rights: they exist independently of rights, and the demands generated thereby don't have the status of rights. Obligations, furthermore, can be conditional, temporal, and contingent, subject to revocation if and when the circumstances 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 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 see. True, it appears to deprive the proponents of what has been thus far their chief weapon, the moral imperative. Even so, a compelling argument can be made that a civil society such as ours should be morally obligated to provide universal healthcare to all, especially if it can afford it.