“Human rights”, which don’t “exist” but are a handy legal construct, always used to be very simple. They were enshrined in law, and by calling them “rights” we gave them the aura of special status, not to be taken away by future politicians.
They included the right to life, the right to free speech, etc. They were simple and easy to enforce. They didn’t cost much: only a legal system.
But then people started saying that these were only a subset of rights, called “negative rights”, and there were other rights called “positive rights” which previously hadn’t been recognised. These included the “right to education” and the “right to healthcare”.
The crucial difference is that positive rights cost money. There’s no such thing as free education: it has to be paid for, e.g. by taxes. So you can only get positive rights by taking money from other people.
That doesn’t mean positive rights are necessarily bad. But it must be recognised that they can only exist by forcibly taking money from other people. (Taxation is “extortion with menaces”.) Failure to recognise this leads to a lack of respect for public services (bad as they are). If, whenever you visit hospital, you remember that it is all paid for from other people’s hard work, you realise what a privilege it is to live in England where this is possible.
Whether “positive rights” are rights or not, they are certainly a privilege, funded by other people’s hard work.
The problem with positive rights is that they are a ratchet. People always want more, and a government can always buy a little short-term success by increasing taxes and increasing what some people get for free (and what other people pay for). Those that stand to gain always shout louder than those who stand to lose.
When the NHS was founded, the services they provided were small, though similar to contemporary private medicine. As new treatments are invented or discovered, these are added to what is available. The bill rises. The NHS now provides all manner of things that have nothing to do with what people need, but with what they merely want, including non-medical plastic surgery, fertility treatment (nothing to do with healthcare), and pseudoscience (homeopathy or magnetic bandages, anyone?).
It provides treatments costing tens of thousands of pounds. Because with finite resources it cannot provide everything, there is the amusingly named NICE (National Institute for Health and Clinical Excellence), whose job is the necessary but not nice task of deciding what to spend the money on. If someone needs a £100,000 drug to treat their cancer, they probably won’t get it because that £100,000 could do much more good if spent on lots of other people.
So here’s another problem with “positive rights”: they’re not necessarily even possible. Does someone have a “right” to a particular drug, if 50 years ago it didn’t exist, and certainly would have been unaffordable if it was? Would they have had the right to it 50 years ago if it was unaffordable? Would they have had the right to it 50 years ago if it didn’t exist?
Does someone have the right to a £100,000 drug now if the money could save more lives elsewhere? The phrase “right to life” always used to mean “right not to be killed”. Negative rights are all about stopping other people doing things to you, not forcing them to do things for you like “positive rights”. However, consider the recent case of Ann Marie Rogers, who tried to claim that by not paying for Herceptin (an expensive cancer drug) the NHS had violated her “right to life”. Clearly “right to life” had been redefined, from the old negative right not to be killed, to an absurd positive right to have one’s life sustained at all costs. Negative rights have a clear infringer. Positive rights don’t clearly specify who is to pay for what is demanded: just a vague “everyone”, through taxation.
Why was the NHS rather than anyone else accused of violating this woman’s claimed “right to life”? Would her right to life have been violated if she had an untreatable illness and was going to die within days? If so, by whom?
Another claimed right is the “right to (‘free’) education”. At present, state education is paid for through taxation. But we all recognise that once you have learnt a certain amount, you have to go off in to the world and earn a living.
You do not have the right to stay in education for the rest of your life, at other people’s expense. If everyone did that, there wouldn’t be any education because no one would be working to pay for it. If everyone exercised their positive rights, no one would get anything.
There is not, for example, a right to go to university to be taught about medieval art history.
What is the cut-off point? Does the state have a duty to teach you calculus if you’re good enough, or should it just teach you basic arithmetic?
The possible justification of tax-funded education is that we will be better off economically and/or socially if everyone can do basic arithmetic. That doesn’t mean it is a right. We might also be better off in a society where some people know about medieval art history. But that doesn’t mean our taxes should pay for it, and it doesn’t mean it is a right.
Clearly positive rights can be absurd. We should drop the phrase, recognising that talk of rights is not necessary for attempts to justify taxation to spend on things like the NHS and education. The “merit goods” argument does just as well, and doesn’t attempt to justify things like government-funded medieval art history.
Tags: entitlement culture, rights, welfare state
I should also mention Sir Isaiah Berlin’s “negative liberty” and “positive liberty”, which are analogous to negative rights and positive rights. Briefly, negative liberty is classical liberty: the minimisation of coercion by other men. It only requires a small state. Positive liberty is giving people power over circumstances, by paying for things for them. For example, someone’s negative liberty is infringed if someone else stops them from doing something. Someone’s positive liberty is “infringed” (by who?) if they can’t do what they want, because they can’t afford it, or because it is impossible (like jumping over the moon). Since human wants are infinite, it is of course impossible to satisfy everyone’s every want and give them “positive liberty”, but the standard general policy is to pay for essentials by taxation.
I think your point about drugs not existing 50 years ago is a little off the point, as obviously if one defined a right to life as “the right to have one’s life saved by all means possible” (i.e. read possible AT THIS POINT IN TIME) then it isn’t problematic at all.
Personally I believe that we should talk less about rights and more about moral obligations, as a “right” basically means a statement of “ought to have something done to you by someone else”, which in reality is an obligation relating to other people, not the the object of the action. So, I would suggest that people (not “society”, which is a useless abstraction), have a moral obligation to save someone else’s life whenever possible, regardless of the cost. Since this can only be applicable on a case-by-case basis, it could indeed mean that we spend the entire NHS bill on one patient, and then two months later have no money for the next patients. In my view this is entirely consistent and moral, since there is absolutely no way that humans can make the decision of how much we ought to help each person, and how best to divide our resources for health.
On the issue of education, I wouldn’t really suggest that anyone has a “right” to an education, since medieval peasants simply worked the land for a living and there is nothing immoral about that situation – they weren’t having their “rights” violated. However, I would suggest that spending money on education, whether it’s basic arithmetic or medieval art history, is intrinsically desirible, if not necessary. That is to say, there are many things that we are not obliged to pay for, but that it’s quite nice to.
Anyway, I call for less libertarian ranting about how poor people have no rights on this blog (not that it isn’t well thought-out and argued in places), and for some more genuinely conservative contributions!
“I would suggest that people … have a moral obligation to save someone else’s life whenever possible, regardless of the cost.”
Even if the cost is more lives?
“it could indeed mean that we spend the entire NHS bill on one patient, and then two months later have no money for the next patients. In my view this is entirely consistent and moral”
Something is deeply wrong with your theory of morality.