When viewed through the lens of justification, we find the notion of rights — natural, human, and civil — warranted by different arguments in the premodern, modern, and postmodern eras (see “The Axioms of Moral Systems“).
Premodern positions—meaning those in place before the Reformation—made no mention of rights other than those enshrined in ancient and unwritten tradition or by civil law. Every effort to resolve shifting power differentials and maintain a pragmatic balance of interests required an appeal to the divine will as final authority, or more precisely, it required an implicit trust in the institutional authority that communicated the divine command (see “Authority, Trust, and Knowledge”). This source legitimized “rights” we might find repugnant, such as the absolute power of the paterfamilias over his relatives in ancient Rome or the seigneurial laws authorizing noble privileges in feudal Europe. This view of rights was invariably relativist since it was sourced in cultural traditions that varied by locale, though the authority that approved them was considered universal and absolute. This might have created some cognitive dissonance if the appeal to trust could be rationally interrogated. But this was the beauty of authority as warrant: trust was unlikely to be inspected once granted. The underwriting trust required forfeiting rational agency, meaning that trust could not be questioned without a resumption of the power to decide in cases of conflict. A competing authority must first question trust and then, if taken seriously, inevitably erode it by returning the power to decide to the moral agent. Obviously, such dissonance was to be discouraged, as in the commandment to place no gods before Yahweh.
In challenging traditional authoritarian justifications, the Reformation attacked trust at its root and the authority it justified in toto. This was the beginning of modernism. One casualty of that scorched earth attack on tradition was the corporatist notion of rights as rooted in tribe or altar. Like nearly every other traditional claim to truth or goodness, old notions of rights gradually had to be renegotiated in conformity to axioms of universal reason and individual experience, which became the basis of modernists’ search for rights’ origin and legitimacy. The result was the social contract justification, but as the theory began in an effort to justify existing governmental structures in the work of Thomas Hobbes, it was forced to defend traditional notions, at least initially. So Hobbes in Leviathan imagined an irrevocable contract granting the king absolute power. Like all modernist efforts, this one rapidly cannibalized itself by rational critiques, subjecting the contractarian position to repeated reworkings by Locke, Rousseau, Jefferson, and more recently, Rawls, resulting in new versions of the contract at odds with earlier notions. But it is significant to any search for the foundation of rights to note that no version of contractarianism could defend the inviolability of rights because each considered them revocable by the terms of the contract that enables government, as Leo Strauss noted in his landmark examination of natural rights. This kind of disconnect provided yet another grand narrative that postmodernism used to deconstruct and delegitimize exercises of institutional power (see “Modernism and Its Discontents“).
Though certainly merited, this fragmentation gave twentieth century theorists little to build on in their own quest for some foundation for any rights other than civil ones, which they justly doubted as arbitrary because they questioned the majoritarian power that enacted them. Postmodernists found less support for rights theory in their own schema than modernists had found in theirs because postmodernists justified law by cultural consensus at best (see “Cultural Consensus“). The resultant postmodern version of contractarianism envisioned a purely conventional arrangement without moral content just as modernist theorists had imagined, but added further obstacles by rejecting all institutional authority as usurpations of power. This charge meant that whatever arrangement served current cultural interests must be both purely pragmatic and fatally flawed.
But postmodernists were not willing to reject rights completely. That is because they also expressed deep concern about the tyranny of the majority and the machinations of the powerful, particularly when perpetrated by the institutions they despised: capitalism, racism, sexism, imperialism, and modernism itself. The result was an incoherence regarding the origin of rights coupled with dissension about their nature and contemporary justification. All of this is attributable to postmodernism’s fundamental axiom of moral commitment: that reasoning is private and in later iterations, that it is shaped by external factors governing individual identity. The incoherence of postmodernist thought produced a pragmatic justification for rights that was entirely new, almost by accident (see “Postmodernism’s Unsettling Disagreements”). It advocated the right to an absolute equality of condition, even though another of its core values was a complete cultural determinism that could as easily support extant privilege as condemn exploitation (see “The Riddle of Equality“). This incoherence parallels the premodernists defending differing cultural practice by an appeal to universal divine authority, a contradiction that survived for millennia. But since postmodernism clearly discourages any trust in institutions, its own version of relativist rights has already broken upon contemporary societal cynicism. Besides, it is tirelessly exploited by the defenders of privilege just as postmodernists charge. Their opponents, whom they see as jealous defenders of privilege, also reject rights. They cannot justify the majoritarianism that privileges them, yet they wish to maintain their own privilege. So they echo Jeremy Bentham’s charge that any defense of rights is “nonsense upon stilts.”
So the current confusion about what constitutes rights and what warrants our claim to possess them is understandable. Defended by premodernists as the product of social custom and pragmatic accommodation, their nature was transformed by modernist thinkers into individual possessions either retained or traded away to political institutions through some prehistoric social contract, in the process transforming them into purely civil and formal endowments of the state, subject to revocation by the state (see “Why Invent a Social Contract?“). This view was incoherent and in tandem with a surviving authoritarianism that contradicted its premises produced gross societal confusions about the nature, origin, and limits of positive laws per se, including civil rights (see “The Victorian Rift“). These flaws were exploited in the twentieth century by postmodernist critics whose commitment to universal rights cleaved upon the faultlines of cultural practice.
To glue the concept back together requires ordering the three kinds of rights correctly. Does civil law grant natural rights or the reverse? And what space can possibly exist between natural and human rights? Let us begin to seek an answer by sifting the historical record for some glint of clarity. Postmodernism has utterly failed in ordering replacement theories for the modernist axioms it despises, but while it has built cynicism about modernism, it has amply demolished premodern warrants of trust in authority as any foundation for rights. So we can begin our search for untangling the strands of thought on rights with those modernist founders who first tried to articulate their nature as individual possessions justified to individual experience by universal reason.
In their first modernist articulation in contractarianism, nothing about the nature of rights was clear. Even that paragon of natural rights, Thomas Jefferson, thought their expression rooted in Saxon tribal customs rather than some inborn possession of human nature, though it is typical of his confusion on the topic that he phased on whether mores, nature, or the social contract itself bestowed rights to persons. Theorists often thought them to be natural, at least initially, but they proposed that their partial and in some views total forfeiture was the price individuals paid for security. Foremost among their framing of natural rights was total liberty, regarded by social contract theorists as the birthright of each individual in the state of nature. This prized personal possession was not, however, inalienable, as Jefferson maintained, for it was traded for security by the enactment of the contract. Indeed, it enabled the contract. Forfeiture of the right of absolute freedom was the fuel that first powered government in the social contract schema. No wonder contract theorists view liberty and freedom with such totemic admiration and regard government power versus liberty as a zero sum game, and no wonder they mock postmodernists’ demands for total equality!
Their arguments are all hogwash. Social contract theory is a convenient fiction that legitimizes government as deriving its just powers from the people, but nothing in the theory guarantees that the contract will produce justice. It simply enshrines the will of the majority, whatever that will mandates, and then opens law to a continual reinterpretation according to the majority’s whims. Its fairy tale picture of autonomous man running wild and free through the jungle evoked horrors of rapine in Hobbes and nostalgia for the noble savage in Rousseau, but only sighs from the historian who knows such libertarian freedom could never have existed in a world of families, clans, villages, and elders. I will concede that Locke may have used the state of nature metaphorically. I have discussed the dangers of blind metaphor in another context (see “The Problem of Metaphor in Religion“), but even granting every benefit of every doubt, a metaphorical reading of social contract must fail. Locke says every person accepts the contract the moment he accepts legal authority. He trades some autonomy for security by accepting law. But this argument changes the game for later generations. We do not enter society from a state of freedom. We are born into it and our individual will has nothing to do with its perpetuation. We are not free to reject whatever political arrangements we are born into. We face the complex of law as brute fact. Where can we hide from positive law? Where is even a metaphorical state of nature for us to exercise our “natural right” and failing that recourse, how can a contract between individual and state be renewed for each generation?
Let us stipulate that the original social contract did not imagine individuals entering the contract but rather the majority, and that is its own problem because modernism itself sanctions the ultimate agency of the individual without providing any means by which her own rational judgment can be overruled by the majority. And this is a problem for retention of individual rights in civil society. But the prior problem of even the possibility of renewing the contract generationally must be resolved before the terms of that renewal can be considered. Even if others also choose to reject the present political arrangements, how can the theory claim that we are giving up anything by revolting against the present system? We are not born in a state of freedom, so what natural rights do we give up to endorse a new arrangement? And given the tyranny of the majority, what natural rights can we retain once we do? This is not a recipe for a contract but for revolution or repression. In either case, contractarianism must be silent on natural rights. Regardless of whether we regard the state of nature as historical or hypothetical, social contract theory rejects the premodern authority of rights and replaces it with the vox populari. By its nature then, social contract theory makes all rights civil only. Nothing about our humanity or our nature, no custom or tradition, can prevail against the general will. Contracts could be legitimately altered or abolished by the will of the majority, but that will can sweep the constitution that legislates all of them into the dustbin. From the Reign of Terror to the Revolutions of 1848, modernism produced only the conviction that rights, like laws and governments, are ephemera, arbitrary and relative to time and place, the product rather than the determinant of laws (see “Foundations of the Law: an Appetizer”).
It hardly improves the options to note that the twentieth century’s contribution to the issue, postmodernism, entirely rejected the uses and disguises of power manipulation. Its axioms of moral commitment reject endowing the majority with even the civil right to compel individual compliance, holding private beliefs as the equal of civil authority in cases of dispute (see “Postmodernism Is Its Discontents”). The only rights it can defend are whatever individuals could cut out of the social fabric in performative acts of defiance (see “Alienation of Civil Affection”). Nothing in this evolution can explain when rights come into being and where they come from, and certainly it cannot explain what is inalienable about them. Nor can they arbitrate whether rights should take precedence over law or custom and justify civil disobedience (see “Preliminary Thoughts on Civil Disobedience: Natural Rights Issues”). So we see the ludicrous confusion over champions of human rights like Mandela, Walesa, and Gandhi being charged as criminals for breaking positive law in their cultures or condemned as radicals for challenging custom. We see postmodernists torn by their wish to respect cultural values—preeminent in their schema—attempting to respond to female genital mutilation in Somalia or honor killings in Egypt.
Yet despite this confusion, we also hear loud proclamations demanding civil and human rights. On what grounds and by what warrant are these demands made? The U.S. Constitution has been altered twenty-seven times. The first ten revisions are The Bill of Rights. Its purpose is to protect citizens from the abuse of power by the state. But how can we determine what is or is not abuse? Why specify these rights and not others? Are these enumerated civil rights the sum total of human rights? Can rights evolve over time and if they do, who decides that? From what fount of knowledge does the majority determine that women were not entitled to the vote in 1918 but were entitled in 1920? It is tempting to say that we as a nation grew wiser over the years, but by what standard do we judge that increase? After all, we thought it wise to remove the right to drink alcohol in 1919 but then to restore it in 1933. If rights come and go so capriciously, how can we know at any moment the proper nature and limitations of rights? How can we defend them if we cannot answer these foundational questions? Premodern versions of rights rooted in custom and sanctioned by a kind of Burkean authority seem as antiquated as chain mail and tonsures today. Modernist versions rooted in the myth of the state of nature and some storied prehistoric compact can only find rights in popular will and the constitutions that follow, subject to revisions and revocations based on majority rule. Postmodernists can find no support in their schema for rights beyond convention and culture. Their attachment to subjectivist morality and experiential rationality forbids any universalist pronouncements about rights.
Perhaps we will have better luck if we begin with ethical rather than legal warrants. This requires a digression from the political to the personal in a search for the basis of rights in one of the correspondentist systems of ethics (see “Three Moral Systems“). I confine this discussion to correspondentist systems because these provide warrants open to public inspection suited to any enlargement of private morality to the public square while avoiding the challenges to authority that have so diminished institutionalized religion (see “Toward a Public Morality”). Duty ethics makes no distinction between obligations to those we love and strangers and so requires we treat all by the same standard of justice. Its duties to impartiality violate natural and tribal inclinations rooted in our need to give and receive love. Christianity reverses that equation, requiring that we treat all with equal love, never mind what they are due. Both suffer from what might be called a surfeit of duties, for neither allows the individual the resources to satisfy the proper needs of self or those in an inner circle of love, urging the sacrifice of those needs to some larger duty that also cannot be satisfied. Both systems violate a fundamental principle of morality: the test of ought implies can. No moral duty can be imposed that cannot be met. Also, these systems do not specifically enumerate rights nor do they embed any essential element of their ethics in rights. Neither is compatible with the pragmatic outlook of utilitarianism, which elevates individual desire as summum bonum yet absurdly requires individuals to surrender that desire when opposed by majority interests. Utilitarianism imagines that our subjective preferences somehow average out to real goods when aggregated, though why that should happen is never explained any more than Adam Smith could explain why the invisible hand should aggregate to the common good (see “Two Senses of the Common Good“). While utilitarianism certainly allows for a polity to enshrine rights in its constitution, it does not require it, nor does it root the notion of rights in any soil deeper than the popular will of the present moment. In this respect, it is a fitting partner to the contractarian justification that accords so well with its consequentialism and moral neutrality. If no one of these private moralities can make room for rights, certainly their promiscuous interactions in contemporary public life can’t either. A culture that attempts to accommodate Christian, duty, and utilitarian ethics would certainly find no grounds to enshrine rights, but then it would also find no consensus for positive law either.
A very powerful argument in favor of virtue ethics is its adaptability to a seamless progression of scale from the individual to her immediate social environment to her larger civic community. It distinguishes clearly our duties to those we love from our public responsibilities, thus allowing a working distinction between public and private morality (see “The Moral Bullseye”). The border is marked out by the claim-rights and exemption-rights of love and justice. Virtue ethics governs relations rooted in love that arbitrate duty and desire by assessing them against unvarying human needs (see “Needs Anchor Morality“). Our relations with strangers, both individual and with the stranger-writ-large that is law, are based upon the standard of justice, what is due. If one is searching for an ethical system that works, she could do little better than to find one that integrates all relationships and justifies all moral obligations with the same warrant. And only the political arm of virtue ethics recognizes the preeminence of rights as the founding principle of law. It is functional natural law theory (see “Functional Natural Law Theory and the Legality of Human Rights”.
I summarized the essentials of the private moral theory elsewhere (see “A Virtue Ethics Primer“). Virtue ethics is based on our moral duty to flourish as persons, to fulfill our nature, to meet our needs. Though an ancient moral system, it accommodates modernist emphasis on universal reason and closely examined experience very well. Persons are presented with choice as a gift of their reason operating on experience. We cannot avoid seeing options in experience. They appear spontaneously to the functioning human mind exercising its natural freedom to choose protected by the natural right to recognize potential goods in the flux of experience. These are the prerogative of adult human life and reflect the capacity to analyze experience, so they are foundational to human nature and are inherent in our reasoning about experience. So natural rights are the precondition to human rights. Our rationality operates in each moment to allow options to appear to consciousness, apparently spontaneously. No fully human person can reject her own reason, and without a doubt no external agent ought to abrogate it (see “The Tyranny of Rationality”). Obviously, some freedom from restraint is essential to that effort, but so too is the respect for the integrity and dignity of our own reasoning, one reason we recoil in horror and confusion from the possibility of brainwashing, mesmerism, and spirit possession, why we find zombies so abominable. Our capacity to choose is so fundamental that it may be seen as the essence of the human person (see “Our Freedom Fetish”). But it is not the distinctive human quality that grants us our dignity. That derives from our ability to choose well, which is quite another thing. Choice may be a natural product of the mind working on sense-data perception, but picking the best or least worst from among the options natural freedom presents is quite another thing. This preferential freedom is or ought to be a consciously rational process ultimately rooted in morality (see “What Do We Mean by ‘Morality’?“). Consistently preferring what we need is obviously difficult on two fronts: recognizing it and then persisting in choosing it. And this process is the entire scope of virtue ethics, which breaks down the process into separate efforts to know and to choose the true goods we need, subsumed under the name of intellectual and moral virtue. It would be immoral for us to rely on others to satisfy these needs for us, provided we can act so as to meet them on our own. But some kinds of needs simply require the cooperation of others, and these contributive needs involve seeking economic, social, and political goods in associations. Our first instinct when faced with these needs is to turn to those we love for assistance, the principle of subsidiarity, but many such efforts require large-scale responses that cannot be satisfied by the bonds of love. These have always required negotiation with strangers.
Unlike social contract theory’s specious state of nature, virtue ethics sees humankind as political by nature. We have always lived in association with others. Simply looking after children and cooperating to fulfill our needs are inherent human activities requiring families, clans, villages, and societies. But this extension from the instinctive associations of love to the more fraught relations with strangers requires a shift in focus, a moral reorientation, for justice must move relationships with strangers as love must move those with family and friends (see “Justice Is Almost Everything“). And justice, what is due, cannot be derived instinctively because we magnify our own and our tribe’s interests. That distortion might be an advantage in relations built upon love: we often put their needs ahead of our own or turn a blind eye to their deficiencies as they do to ours. I grant this is an ideal often abused in practice as feminist critiques argue, and so must also clarify that justice must form the baseline of family life when the duties of love are violated. In all of these transactions, the source of that entitlement is the source of human rights: human dignity based upon our felt preferential freedom exercised in the pursuit of the satisfaction of human needs.
Justice requires a more formal adjudication of a morality in civil society imposed not by contract but by invariant human functionality governing preferential freedom, meaning it governs the imposition and granting of human rights in civil society. These compose the specific obligations exercised by strangers, both as individuals in community and as citizens in polity. Their pursuit requires justice to be the moral fulcrum of public life.
Allow me to elaborate on how that works. The constant calculation of what is due is difficult and exhausting in the flux of family life, so the instinctual urge to love rather than judge is abetted by the difficulties of configuring justice in intimate situations. The intimacy of family life makes calculations of what is due too variable and difficult in the flux of momentary experience. Love avoids these calculations and therefore smooths out these constant and intimate relationships. Fortunately, our relations with strangers once we enter the public square are amenable to such calculations, and their proper scope is the subject of functional natural law theory. In its relentless pursuit of justice, it begins with virtue ethics’ catalogue of needs as the articulation of what is due the human person. This catalogue is coterminal with human rights. Most of these needs are within my own power to satisfy, often with the assistance of those I love. When I enter the public square in their pursuit, I ought to be allowed to continue satisfying them, and this freedom from interference is the source of my exemption-right from interference by other strangers, including government, as I go about my moral duty. But one reason to interact with strangers is to satisfy common needs in community, and this universal requirement of civilized life allows strangers to impose claim-rights on each other based upon what is due. As an individual citizen, you lay a claim-right upon me to respect your exemption-right to be free of my interference. So civil laws prohibit my harming you or taking your property: legal protections of a human right. But my civil needs hardly stop with the libertarian desire to be free from government, for my human rights also impose a claim-right upon me as citizen to be free in government, to participate in the civil projects that communities and nations mount in concert. As rational beings, humans deserve a say in how their common needs may best be met, and in that right to participate in meeting needs, we find the universal legitimacy of just governments. No state of nature required and no surrender of freedom either. Rather, an enlargement of freedom, for government, the ultimate stranger-writ-large, must protect my exemption-rights and my claim-rights to goods only it can provide. These goods condition calculations of retributive justice as clarified by criminal statutes and contributive justice as exemplified by large-scale projects only the combined will of citizens can accomplish (see “Natural and Political Rights“).
They also warrant efforts by government to assist those citizens who are unable to satisfy some needs that other citizens can, a civil responsibility to distributive justice, an arena that has been attenuated by the axioms of contractarian theories and one that awaits a clear and public articulation. Contractarian law is by its nature morally neutral, allowing majoritarian interests to write law and define justice as it wills, finding morality in the shifting desires of voters. But considering citizens to have a constant moral claim-right on their fellow citizens, a human right to the satisfaction of their needs, charges civil interactions with duties many will be tempted to resist as ardently as the truths that impose their duty to their fellow citizens: that human needs are non-negotiable liens on the moral claim-rights of strangers. That conception of human rights is distasteful to contractarians, who are accustomed to the supposed moral neutrality of government somehow imposing the moral imperatives of positive law. But even without the confusion fostered by majoritarian libertarianism, the issue of distributive justice would prove difficult. Its innate difficulty is complicated by confusions about the proper distinction between contributive and distributive justice. The arbitration of wide-scale economic goods, such as those involved in minimum wage and health-care issues, affects all citizens and is properly the concern of contributive justice involving generalized determinations of what is due all citizens as participants in community and contributors to the public weal. But assistance provided to only some citizens that they may use to satisfy needs other citizens satisfy for themselves (no doubt with the aid of their intimates) is the proper sphere of distributive justice, the most difficult to arbitrate in terms of rights and responsibility. In truth, the question of just distributions of social goods is a central preoccupation of political discussions today, but its complexities are unlikely to be understood, much less resolved, so long as we distort the bases of political affiliations. No contract is needed to produce or protect what is due to human dignity. No contractarian systems can protect human rights from majority caprice. Justice defines what is due. What is due is the preferential freedom to satisfy universal human needs. Human needs are human rights. Human rights are inalienable corollaries of our dignity as human beings. Just as robbing me of food does not eliminate my hunger, so robbing me of political participation fails to stymie my need for it. I need it to flourish. Therefore, it is my right. We use the term “human rights” for a good reason. Everything humans need to flourish constitutes a human right, for without these things we cannot be fully human. Our civil rights are a means to satisfy human rights that individuals cannot satisfy for themselves or in association with those they love, though laws may criminalize all sorts of other behaviors. Their just provisions protect our need to participate in political decisions relevant to our own flourishing. No constitution can grant or remove any human rights. It can only recognize them, for they supersede laws and constitutions, existing morally prior to any formal recognition in law and remaining whether recognized or not.
All sorts of misunderstandings and exaggerations can follow from this single, self-evident truth. As mentioned, most of our needs are entirely our own obligation to satisfy. We have a need for friendship and love, but no one can be compelled to meet that need even though we cannot entirely satisfy it by our own efforts. On the other hand, no state or person can block our efforts to satisfy it, say by means of false imprisonment, medical intervention, or total isolation. We have a need for meaningful skill as an end in itself. Witness the lengths to which golfers attempt to perfect their drives or video gamers to increase their scores. This need is but one of the drivers for a liberal education that develops both the fortitude to persist and the prudence to desist in pursuits of skill when such efforts interfere with other, equally vital needs, one of which is producing sufficient resources for other needs that can be purchased. In cases of widespread economic deprivation, that need might not be met for many persons. Such was the case during the Great Depression, wherein failures in the economic system of the industrialized nations led to a generalized frustration of this need. In cases of famine, many will suffer from a failure to meet their health needs (see “Economic Justice“). In high poverty societies, large numbers of citizens may not receive an education sufficient to meet their own needs. In each case, a need exists that cannot be met. Rights are violated, but unless a few hoard the means to satisfy the contributive needs of the citizenry, no blame can be assigned. Still, such widespread deprivation indicates a failure of the social, political, or economic order to do its job. These institutions were created and exist to facilitate their satisfaction. Endemic failure indicates an urgent need for systematic reform.
It is, of course, possible to see other desires as needs, or to confuse the means of satisfying real needs for the needs themselves. Rich countries encourage this confusion as a means of promoting materialist excess. We may desire a luxury automobile. No one needs it. An automobile is a means to an end. Mass transit may be equally effective in some areas. We need sanitation to facilitate health. No one needs a spa bath. Just as a superfluity of food frustrates the need it should satisfy, so a superfluity of desires obscures the real needs that arise from our function as fully human persons. These needs have always been the same in all times and in all cultures. Their constancy is, in fact, one means of identifying them. Their ubiquity through time and cultures is a primary means of isolating them from desires that might be innocuous or baneful or the means to their satisfaction. Another indicator is their incommensurability. Needs are non-negotiable, though their cultural expressions and private order of satisfaction certainly may be. Should I ask you whether health or friendship is more important, could you possibly answer? We satisfy needs in experience according to their urgency, as anyone who has ever pulled an all-nighter will know, and this navigation of desire is one reason love is such a valuable asset in the quest for the satisfaction of true needs, It is also why preferential freedom is the source of all human dignity and all human rights and the responsibilities that accompany them.
Moral choosing is exceedingly hard to do well and consistently even in the most favorable society. We are not all that proficient in the quest for what is due, nor have governments ever delivered the justice that is their duty and every citizen’s claim-right. Because needs were so long frustrated, we mark the occasion when they were finally recognized and were integrated into civil law. We celebrate the heroes and heroines who help procure them. We see Sam Adams, Anthony, and Gandhi engaging in civil disobedience, Mandela destroying public property, Walesa stalling the Polish economy, and we recognize their adherence to a higher law than the positive laws of their nations, though we still seem befuddled by what that might be (see “When Is Civil Disobedience Justified?“) We recognize in the Thirteenth and Nineteenth Amendments the recognition of something basic and true, a bending of the arc of history toward justice, defined as giving to each what she is due.
I should mention one human need that still goes wanting even in the rich democracy that is the United States. It is illegal to turn anyone away from an emergency room. Why is that? Shouldn’t people pay for the service they purchase? And shouldn’t that service be priced in accordance with free market principles? If you have followed my argument, I think you will agree that the answer is “no.” Our need for health is as self-evident as for other goods. It forms the basis for a whole complex of means to that end involving food, shelter, clothing, rest, recreation, and self-care. But some health needs are beyond our own capacity to provide. For that reason, health care, not merely treatment of injuries or emergency illnesses, is a human right. Because it is a non-negotiable need, persons cannot simply walk away from its satisfaction if the price is too high, which violates the free exchange basis of capitalist enterprise. Health care cannot operate according to the laws of supply and demand because the demand cannot be ignored, minimized, or negotiated. Like all human rights, it can be withheld, but I hope it is clear that any limitation on its satisfaction is morally offensive. Hoarding health care is as immoral as hoarding food in a famine or water in a drought, and it is doubly offensive that it be hoarded when the supply is plentiful. I suppose the vested interests in the vast machinery of profit-seeking health care blind us to this truth, abetted by our present moral vacuum. Still, this is a right that the rest of the developed world seems to understand with little effort.
Like most of our needs, we should satisfy our own health requirements to the degree we are able, assisted by subsidiarity of intimates, yet as we go outside of the circle of love and into the realm of justice, we are forced to confront the cost such a claim-right imposes on fellow citizens. A case can be made that in the provision of health needs, we face pockets of moral doubt involving the adequacy of resources affected by issues of utility and, as always, the responsibility to satisfy the claim-right. The right to health care is complex in the ideal, much less in an environment of moral anomie and vested interest. Examining it provides the opportunity to confront three issues that test human rights in the real world. These are end-of-life care, personal responsibility for health versus government responsibility, and one government’s responsibility for health care in other nations.
Half of every health care dollar in the U.S. is spent on persons in their last year of life. This expense is often an effort to postpone death, not recover health, and it can only be justified by an appeal to profit or to the willingness of loved ones to commit every resource to nourish even the smallest hope. I have already challenged the profit motive as a scale upon which to weigh health needs, and in a more moral society it would count for less than the second motive: the mingled duty and desire of love. But relations among strangers are not governed by love, and this situation exemplifies why. Family may spend their last dollar on their aged relatives, though that would ignore their duties to their own care. They cannot ask strangers to take on that burden, for to do so would frustrate the satisfaction of their own needs and thereby violate the long-justice that must arbitrate the more urgent duties of love. In a just polity, the burden for end-of-life care would not fall so heavily on intimates but would be shared as a contributive need of all citizens, one they may one day face for their own families. All citizens are subject to the claim-rights of those whose health needs must be met, so all citizens must participate in deriving the standards to decide which medical services actually meet the human right to health and which are palliative, and in what we can assume will be an ongoing scarcity of supply of medical care for end-of-life patients, what allocations can be supported in each polity. In all cases of a true scarcity of capacity to fulfill a need, the existence of standards established by expertise or competency ought to guide public policy, for citizens in either the aggregate or as individuals are incapable of applying fairness to calculations of just deserts for individual citizens. It is ironic that “death panels” of this sort were the villains of discussions on health care, but any reasoning person examining the issue of end-of-life care must recognize the necessity of just standards arbitrating the public expense when health no longer is judged to be achievable. These standards ought to be subject to appeal in the one arena where individual arbitration of justice has legitimate purview: the court system, and they ought to be subject to continuing revision as medical science improves prognoses. The necessity of standards for dedicating end of life care in public health decisions is supported by the observation that nearly all countries that recognize health as a human right employ just these kinds of systems of review. Persons who wish to indulge their own subsidiarity in such cases are, of course, able to do so, but we may assume their number to be smaller than the 640,000 annual bankruptcies in the U.S. that require loved ones to do so in our current for-profit health care system.
Some of these questions relate to issues of personal responsibility for health care. Is there a living soul who does not know the general requirements for living a healthy life? Pseudo-science and human science certainly blur the issues at the margins, and for-profit temptations abet our unhealthy proclivities to be sure, but even so, we all know in the main what we ought to do to have good health increase our own flourishing. It is not at all clear, though, why some persons are victimized by their own genetics or excessively affected by some environmental harm others can safely ignore, why some two-pack-a-day smokers live into their nineties and some non-smokers get lung cancer. Should persons who are reckless with their own health be subsidized by strangers who are not? This relation of claim-rights to exemption-rights echoes through any consideration of justice defined as “what is due,” and cannot be ignored. Public policy ought to be structured to reward healthy choices and penalize unhealthy ones. We all pay when one of us injures or sickens herself through her own neglect just as we all pay for end-of-life care and some of the same considerations apply. So it is just that persons who engage in risky life behaviors are required to pay more for their health insurance whether through taxes or health care premiums, that persons who utilize emergency care pay for what they have received, provided they are able without detriment to their other needs. As noted above, bankruptcies now underwrite social policy regarding medical expenses, and though Chapter 7 and Chapter 11 may be structured to allow economic sufficiency, their punitive nature at present is morally offensive and their safety nets precarious. And in a contractarian democracy, no guarantee exists to ensure they will not become more punitive or difficult to procure. Those who attempt to meter the degree of personal responsibility in these cases will fail except in the broadest of classifications. No means exists to factor in the degree to which persons’ poor health is their own fault, and so in this, as in all such calculations, the metric must be the available supply rather than the personal responsibility of the moral agents. If sufficient medical resources are available, they should not be withheld for the simple reason that they are needed and available. The sick and the injured ought to be restored to health if that is possible. It is a human right and a civil duty.
But that immediately broadens the issue to all humans everywhere, and we are forced to examine by these same premises a wider question. What claim-right can citizens of some other country make upon me? Their humanity confers the same dignity upon them. Their needs and rights are as binding as my own. In the example of health care, for instance, persons in poor countries have far more basic needs than those in developed ones. Upon whom can their claim-right be exercised when their own governments are incapable of meeting health needs that are likely far more urgent than my own?
Our instinct to respond positively may not be based upon principles of justice. Many persons see the source of such a claim as a duty deriving from their own dogmatic religious authority rather than from any theory of justice. Real relief can be provided by religious organizations and other NGO’s, but those who dedicate themselves to such service will be the first to admit that the need always exceeds the supply. And given the broken condition of authority in today’s landscape, it is doubtful that sufficient resources could ever be volunteered to satisfy that continual need. Additionally, at this moment in history, its nature is global while the response must be local or at best national. Victims of natural disasters find a laudable response from religious groups moved what is clearly a desperate but temporary need, but that same level of need continues on a world scale regardless of catastrophe and is never satisfied despite the stated duty of religion to do so. The danger of this kind of empathy is that it allows charitable impulses to ebb and flood with one’s own attention or with news cycles, proof being that even the obvious needs of one’s own fellow citizens are not now satisfied (see “Empathy: A Moral Hazard). Again, the principle of ought implies can imposes itself upon our shallow generous intentions, for at least in this moment, human need exceeds the capacity and certainly the will of those who might be asked to satisfy it, and no institutional authority is trusted enough to organize the necessary response. While this reality clearly argues for far more social support of informal familial institutions who may give through love what strangers cannot give in justice, both the nature of needs and the nature of misfortune points to a role for just civil intervention. Governments exercise sovereignty for a reason. Though we may pressure our own government to recognize and champion human rights everywhere, provide disaster assistance to other nations, and develop aid and assistance programs through international governmental and non-governmental organizations, we must also recognize that thinking globally and acting locally provides no applications more binding than pursuing human rights in our own back yard where our citizenship can move the stranger-writ-large that is government to action. Here the responsibility is matched by the capability to effect change.
Persons who feel competent to satisfy their own needs with the assistance of the subsidiarity of intimates and in political affiliation with government find it difficult to understand their fellow citizens’ failures to do the same, and so they may be tempted to harsh judgments justifying deprivations on the grounds of relative fairness. It requires the wisdom of Solomon and a deep awareness of the networks of support that facilitate our own success to counter the pernicious myth of the “self-made man” who arises from the state of nature, wins the capitalist rat race, and the overcomes the indifference of strangers to satisfy his own needs. The realization that we are not free agents can be soothed by denying the false premises that oppose it. We have always lived in community, and we have to. We rely on the support of those we love and on strangers for a portion of our needs even in the best of worlds. The temptation to fairness to strangers ought to be seen in its true light, for it is a childish and necessarily relativist comparison invalidated by its own definition. If fairness is the goal, efforts to calculate it cannot be made fair enough to succeed. We all think we can somehow balance one person’s sociological, circumstantial, characterological, moral, and cumulative condition against another’s, but when we are put on these same scales, we are quick to find reasons to question their conclusions. We are fully aware of all the complicating factors that move our preferences and affect our condition, and so we resist others’ efforts to judge us in that way, yet we seem to feel little doubt about our own ability to judge them fairly. Fairness is not an accurate gauge of justice and simply eludes any objective appraisal despite the false assurances of the human sciences (see “The Calamity of the Human Sciences”).
That appeal also reminds us of our own responsibility as rational and moral agents. Our acceptance of the claim-rights of strangers ought to be balanced by an equitable embrace of those we impose upon ourselves. While we all possess dignity as a bequest of our preferential freedom, nothing guarantees its responsible use (see “The Essential Transcendental Argument”). Though natural freedom invariably presents options to preference, provided the natural rights conducive to the exercise of reason are respected, nothing guarantees the competent exercise of preferential freedom that satisfies true needs even when their satisfaction is available. While love actively satisfies distributive justice, government can only facilitate the satisfaction for citizens who still have to do the heavy lifting for themselves. The student attends public school provided by her community, but she must educate herself by her own intellectual effort. The young mother gets public assistance, but she must use it to satisfy her family’s needs. I emphasize economic security as the need underwritten by government, but that is a distortion in two senses: first because it is only one need that justice arbitrates and secondly because we only see the disbursement and not the need its recipient must satisfy by her own efforts. The community applies standards of eligibility for assistance that allow its members to satisfy their needs. The economic threshold in America is called the poverty line (see “Economic Inequality“). It is now grossly unjust.
This is obviously a huge topic and deserves a deeper analysis. My central argument is that only functional natural law provides a clear understanding of the origin and nature of rights, removing discussions of distributive justice from universal charity, empathy, and fairness — all variable and incalculable– to universal human needs, which are knowable by the same universal reason that allows their satisfaction. By extension, only functional natural law regards the minority, even a minority of one, as having inalienable rights that no power of the majority can ever supersede. As opposed to the fetishistic worship of liberty and resentment of the power of government that marks social contract theory — I would be a libertarian too if I subscribed to the theory — and in contrast to the thoughtless defense of cultural values embraced by postmodernist pursuits of an absolute equality, virtue ethics finds in the commitments of love the means of satisfying those needs that individuals cannot satisfy for themselves, and functional natural law theory finds in justice the means of satisfying the retributive, contributive, and distributive needs of citizens in a polity. The family is such a vital institution that it needs universal support, which is lacking in Western societies today, but government is no less vital, so it is no less necessary that its, institutions receive the active sanction of citizens. Those efforts in these two arenas define and activate our human rights. In satisfying our other needs, we ought to exercise the claim-right our preferential agency puts to our own reasoning, a moral responsibility that conveys dignity to every human person. Our needs are products of our human nature and not of custom, constitutions, or positive law. Cumulatively, these are human rights.
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