36

People often make the argument that healthcare cannot be considered a right because someone would be compelled to provide it for you.

For example, from libertarianstandard.com:

When supporters of the central coordination of the provision of healthcare by the state say that healthcare is a human right they mean that this right ought to place an obligation on everyone ... to act in such as way as to support everyone else’s health needs

However, the Sixth Amendment guarantees a right to a speedy trial:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State ...

Not only does this guarantee that your fellow citizens will be pressed into jury duty, but implies a judge, public defenders, and an entire court system to support the accused's rights. Furthermore, the Fourth Amendment also guarantees an apparatus to support the issuing of warrants.

What is the difference between the right to a speedy and public trial in the U.S. Constitution and the proposed right to healthcare?

Also this question is coming from someone who doesn't know anything about politics or political theory beyond being a well-informed college graduate, so please, explain from the ground up.

  • 16
    I added the libertarianism tag as the premise of the question seems to be build on some libertarian definition of "rights" (which isn't necessarily how others would use the term). Feel free to revert if this isn't what you were asking, or to add the definition of rights that this argument is using (I think that that would be helpful, as it would make the question more specific; maybe you could also re-focus your question to be primarily about libertarian definitions of rights; it would make the question a bit less argumentative and might provide you with the fundamentals for an answer). – tim Sep 20 '17 at 20:10
  • 1
    @tim I wasn't aware that libertarians defined "rights" differently. I just have seen this argument frequently on social media and found a linkable source for my post. And what is argumentative about my post? I tried to post as neutrally as possible. – Azor Ahai Sep 20 '17 at 20:13
  • 2
    "Can argument X be used to make point Y" seems to be off topic in that it's not going to be answerable decisively one way or the other. – user1530 Sep 20 '17 at 20:17
  • 7
    @Azor-Ahai At least some libertarian circles reject some, most, or all of what they call positive rights. With "argumentative" I meant what .@blip mentioned. I think it's probably still on-topic, but you might benefit from first asking about the definition and usage of the different terms related to the argument. – tim Sep 20 '17 at 20:26
  • 5
    Are the rights enumerated in the US Bill of Rights really human rights, or are they specifically rights of citizens of the United States? – RonJohn Sep 22 '17 at 23:17

10 Answers 10

77

One difference is that the trial (and, behind it, criminal prosecution and legal punishment) is something the state is organising for its own purpose in the first place. The right to a speedy trial is not a right to a trial or anything along those lines, it is a limitation on the conditions under which the state can apply punishment and restrict someone's freedom.

From that perspective, the state does not have to provide anything but can always forgo prosecution. It's only if it does act that it has to do it in a specific manner. I am pretty sure most people put on trial would be perfectly happy if there was no trial (assuming they don't get punished without a trial either, of course).

By contrast, when considering healthcare, it's not acting and letting people die from preventable causes that would be a violation of their rights.

  • 4
    Your second paragraph was the clearest explanation so far. – Azor Ahai Sep 20 '17 at 20:56
  • 10
    "...the trial ... is something the state is organising for its own purpose in the first place." I don't buy this premise. In theory, criminal prosecution is done for the benefit of citizens, not for the state itself. Unless I've misunderstood what you were trying to say? – jpmc26 Sep 20 '17 at 23:31
  • 14
    @jpmc26 The state is the citizens. Government by the people, for the people, of the people. – Andy Sep 21 '17 at 1:50
  • 30
    @jpmc26: it doesn't matter why the state is doing it, just that it's a state action. The "right to a speedy trial" is not actually a requirement that the state provide a speedy trial for anyone who wants one. It is a freedom from non-speedy trials. The state could, in principle, do nothing and still fulful the right. This is a different situation from healthcare, where the "right to healthcare" is a positive requirement that the state do something. A putative "right to security from crime" might be a better parallel to healthcare, since it obliges the state to act coercively. – Steve Jessop Sep 21 '17 at 12:45
  • 6
    @called2voyage the right to "prevent imprisonment or other punishment without a trial" is a negative right. It is the right to be left the hell alone, with a high burden of proof on those who wish to disturb it. – Monty Harder Sep 21 '17 at 20:31
41

The right to a speedy trial just means that the prosecutor may not delay the trial unreasonably. The prosecutor is not actually required to provide a trial. The trial is a requirement to keep the defendant incarcerated or otherwise limited, e.g. by a bail agreement. So a speedy trial is a limitation on the prosecutorial power. If tried, the trial must be speedy.

Same thing with a public trial. It's not that the trial has to be provided. But if tried, it must be public.

Contrast that with a healthcare right. Healthcare must be provided unless ... There's no end to that sentence. It's not a limitation on government power but a requirement. This is what is called a positive right. A speedy and public trial clause is a negative right. The government cannot try someone unless the trial is speedy and public. It is prevented from trying people slowly and in secret.

For those who are unclear about the contrast: A trial must be speedy and public unless ... there's no trial and no punishment. There is no "A trial must be provided unless ..." requirement. You can't just go to the government and demand a trial. The government must first try to do something, like incarcerate you. If healthcare is a right, then someone can go to a hospital and demand healthcare.

Some believe that negative rights are appropriate, as they are limitations on government power, while positive rights are not, as they require government action. Others disagree. Ignoring who is correct, this is the distinction that is being made.

  • How would you finish the sentence "A trial must be provided unless ..."? I'm still a bit confused. – Azor Ahai Sep 20 '17 at 20:16
  • 10
    @Azor-Ahai "A trial must be provided unless the government decides not to prosecute the accused." As opposed to, for example, a military tribunal or inquisitorial court. – IllusiveBrian Sep 20 '17 at 20:19
24

The linked article defines "rights" in a particular way and then goes on to argue that "healthcare" cannot be a right under that definition.

This is akin to the "No True Scotsman" fallacy.

Hamish sees an Englishman wearing highland dress incorrectly. "No Scotsman would ever put a sporran on upside-down" he claims. His wife responds "But don't you recall when Alistair McDougle did just that?". "Humph" sighs Hamish, "no true Scotsman* would".

Hamish has chosen to define "Scotsman" in such a way as to suit his argument, his definition excludes "Alistair McDougle" even though Alistair would normally be described as Scottish.

There are many things that we consider "rights": Children have the right to an education. People have the right to be protected from attack by hostile countries. We have the right to a say in the running of the country. (The first from the rights of the Child, the second two from articles 2 and 21 of the universal declaration)

These "right" imply the provision of schools and teachers, of a military, and of elections. So in choosing the define "right" in a particular way, the article excludes several things that are generally thought of as "rights". In this way it is the "No True Scotsman" fallacy.

Your example is another case: the right to a trial implies the provision of a justice system. And, furthermore, the universal declaration explicitly declares

"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services"

There are various definitions of "right". There is the definition in the article, and there is a meaning implied by its use in various documents. Whether or not healthcare can be considered a "right" depends on the definition that you choose, and so is ultimately a matter of opinion.

So the argument that healthcare isn't a right could equally be applied to education, the military, and elections. The same argument would apply to the right to a speedy and public trial. If you accept that a speedy and public trial is a right, then you can reasonable argue that heathcare may also be a right. If, on the other hand you define a right such that it cannot create obligations on others, then neither healthcare nor a justice system (nor education, nor military protection) are a right.

I'm noting that if you choose to define "right" in a particular way, you can "prove" that healthcare, justice, security, education are not "rights". But this is inconsistent with the use of the word "right" in various documents (US constitution, etc).

  • Comments are not for extended discussion; this conversation has been moved to chat. – Philipp Sep 22 '17 at 10:31
  • 2
    That is not a True Scotsman fallacy. You're basically saying that anyone who disagrees with you about what the proper definition of a word is is committing a fallacy. "So the argument...could equally be applied to... elections [and] right to a speedy and public trial." No, elections and trials are limitations on force, and thus are negative, not positive, rights. " But this is inconsistent with the use of the word "right" in various documents (US constitution, etc)." False. – Acccumulation Sep 23 '17 at 0:58
  • The "No True Scotsman" fallacy hinges on whether the definition is legitimate. If I say, "McDougle is not a TRUE Scotsman because he wears his sporran upside down", you may reply that that is a fallacy because the definition of "Scotsman" does not depend on how one wears a sporran. But if I say, "McDougle is not a TRUE Scotsman because he was born in Wales", my statement is quite arguably true. It is at times quite legitimate to argument about the proper definition of a word. Is a "true Scotsman" someone who was born in Scotland? Someone who has lived at least X years in Scotland? ... – Jay Sep 23 '17 at 2:04
  • 1
    ... Can an immigrant from Norway ever become a true Scotsman, and if so, how? Etc. Drawing a distinction between "negative" and "positive" rights is just as valid as distinguishing "natural born Scotsman" from "immigrants to Scotland" from "people living in other countries but who have Scottish heritage", etc. – Jay Sep 23 '17 at 2:05
  • 3
    The key element of 'no true Scotsman' is that you are defining a Scotsman for the purpose of your argument. You're saying 'Scotsmen don't do that, and no he's not a Scotsman, because he doesn't do it'. It's a circular, fallacious argument. Here it's the same thing. People have defined 'positive and negative rights' purely to support their existing view that healthcare shouldn't be a right. That's the origin of 'positive and negative rights': an attempt at justifying lack of government services. – Miles Rout Sep 24 '17 at 22:43
9

I don't think the two can be linked.

In your speedy trial example, a defendant would be just fine if there was no trial since without one they cannot possibly be punished. It is the state that wants a trial so that they can then provide punishment for the accused if and when they are found guilty. Without this trial, it would be a violation of the 6th Amendment and also probably the 5th Amendment for the state to provide an unreasonable inconvenience to an individual before a trial.

The term right can be taken in two different ways: something that is owed by someone, or something that cannot be denied (see Negative vs Positive rights). My understanding of the healthcare debate is that supporters viewing healthcare as a right don't believe that the state or anyone else owes them health care but should not deny them healthcare if the only reason for denying them is their inability to pay.

✝ - Pre-trial incarceration and bail confiscation can be considered punitive from the point of view of the defendant, but they do serve as a balance against an individual's rights and society's larger security concerns.

  • 3
    Many defendants are held in jail or have to pay bail to remain free while awaiting a trial, and that is without considering the psychological stress of not knowing what will happen at the trial. The right to a speedy trial exists to avoid someone being kept in jail without trial using the excuse that preparing the trial has been delayed. – SJuan76 Sep 20 '17 at 20:31
  • 4
    This answer is a glaring example of what's wrong with this site. It's the only of the two answers that actually correctly address the question (by introducing the source of the confusion as the need to distinguish between positive and negative rights)... and it has 1 upvote and 1 downvote; vs tons of upvotes for far worse answers and even a bunch of upvotes for a non-answer, whose only redeeming quality is being of the "correct" pro-authoritarian political bent. – user4012 Sep 21 '17 at 0:34
  • @user4012 I appreciate the sentiment, SJuan I think pointed out a pretty valid criticism (people actually do get punished before trial), and I haven't quite figured out if or how I should address that for this question. I though attribute differences to reasonable people coming to different interpretations of the question. – Jeff Lambert Sep 21 '17 at 0:49
  • 1
    @JeffLambert: I don't think you need to address punishment before trial. Bail and pre-trial incarceration are not intended as punishment. A speedy trial is supposed to prevent them from becoming punishment. Bail is supposed to ensure that the defendant shows up at trial and behaves while out. – jmoreno Sep 22 '17 at 10:58
  • 1
    @JeffLambert - Me and 85% of american were "pooling our risks" with others by choice quite happily and very satisfied before unACA. Thanks to unACA it is now costing middle class families a minimum of $15K per year more because of unACA and for some much, much more. To top it off, we don't have the ability to opt out unless we pay an exorbitant fine. Somebody is getting something for free out of that and it ain't middle class families who are being gouged by unACA. What you are describing is absolutely not "pooling risk and resources", it is nothing more than a transfer of wealth. – Dunk Sep 25 '17 at 23:43
3

The core difference between your two scenarios is the parties involved. In the healthcare scenario, the two parties are both private individuals (healthcare providers and patients). In the judicial example, only one party is a private person while the other is the state.

In liberal theory, which liberalism is a piece of, the state exists outside of the private sphere. Accordingly the state has entirely different moral obligations than an individual (see the SEP article on social contract theory as well as the "state" section of the article on Hegel).

Laws are the product of the state. If a law compels the state to do something, that only means the state has chosen to obligate itself to do it. No external force required it, it entered of its own choice. In your judicial example, there is no moral problem (for the state) in requiring that it provide a reasonably fast trial.

More to your point perhaps, this obligation may require private citizens to act (for example, judges, jury, lawyers, etc.). What about their rights? First, many of them are not compelled to act - lawyers may generally choose not to represent a client, for example. Judges are also in this category, since they chose their profession and entered into a contract with the state which may require them to perform their services at a reasonable time. The jury is a group of citizens, and so long as the terms of their citizenship make it clear that jury duty is part of citizenship, than there is no moral harm in requiring them to fulfill that obligation.

  • 1
    Healthcare can also be provided by states… In fact in many places it is, at least in part, and people who think healthcare is a right would tend to favour that solution too so that this answer seems to beg the question. – Relaxed Sep 20 '17 at 20:49
  • 6
    "Judges are also in this category, since they chose their profession and entered into a contract with the state which may require them to perform their services at a reasonable time." This could also be applied to doctors, in a state-run system, could it not? – Azor Ahai Sep 20 '17 at 20:49
  • @Azor-Ahai If the doctors are employees of the state, sure. However, that is beyond the scope of this question which posits a centrally coordinated healthcare system. – indigochild Sep 20 '17 at 20:51
  • 2
    But then is there any limit on what can be included in "the terms of their citizenship" (which, of course, nobody actually agrees to unless they're naturalized?) – D M Sep 21 '17 at 1:00
  • @DM - That's a great question, but probably as it's own question. There are lots of theorists who have delved into the moral limits of contracts. – indigochild Sep 21 '17 at 1:38
2

I think the issues are different enough that your argument does not invalidate theirs.

The right to a speedy trial prevents the government from incarcerating someone indefinitely without being able to prove their case. If they are unable to provide one with due process, it merely means that the government has to let the citizen go, supposedly.

It's less about society providing for a basic right as much as restricting their ability to deprive someone of their basic rights (freedom/liberty) without meeting certain standards. The "speedy trial" is more a standard the government must meet. I can live without a speedy trial if the government isn't trying to deprive me of my freedom.

However, the idea that if society needs to bring resources to bear it is somehow not a fundamental human right is an argument that seems to make assumptions about being somehow valid more than any demonstration of validity having been made.

When someone offers an argument ("healthcare for all requires that society provide it!") that can easily be rebutted with "Yeah. So?" they need to work on honing that argument.

1

I would agree that both health care and a speedy trial are rights, as enshrined in the U.S. Constitution (with the capitalized words Welfare and Justice):

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Every elected politician and member of the military swears to uphold this Constitution.

In particular, the "general Welfare" clause is the reason the government can collect taxes, to pay for defense and welfare:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence[note 1] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Just as the government is obligated to provide for defense by collecting taxes, it is also obligated to provide for welfare (Libertarians hate this idea, though).

As you point out, it is also obligated to provide a speedy trial, through a court system also provided by taxes, though a speedy trial does not directly imply health care.

  • 1
    I understand there is some debate about what exactly "general welfare" means. The early administrations didn't seem to prioritize national health insurance or directly subsidize access to medicine. – user9389 Sep 22 '17 at 20:12
  • 1
    IOW, you believe "general welfare" can mean anything you darned well please. Well welcome to the USA. The country was founded and Constitution written with specific intent to prevent the people in power from making up any old rules they want. One of the 2 overarching goals was "Rule of law over rule of man". Thus, your view might be what is happening in this country nowadays but it is certainly everything the country's founders intended to prevent. If you want healthcare to be a right then change the Constitution to include healthcare as a right properly. According to the rule of law. – Dunk Sep 26 '17 at 0:03
  • @Dunk "but it is certainly everything the country's founders intended to prevent"? Please cite your sources. – Brent Washburne Sep 26 '17 at 17:53
  • @Dunk All U.S. citizens have a right to Medicare when they turn 65, according to the rule of law. ourdocuments.gov/doc.php?flash=false&doc=99 – Brent Washburne Sep 26 '17 at 17:55
  • 1
    I have no idea what type of site this is but the article covers the topic quite well firstprinciplesjournal.com/articles.aspx?article=1434 . There are many writings similar to these couple of quotes by John Adams " “to the end it may be a government of laws, not of men.” and Thomas Paine "Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING...For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other"... – Dunk Sep 26 '17 at 21:14
-1

Health care isn't a right. It is a service, that is essential to functioning in today's society.

The closest parallel would be water, electric power, telephone service, internet service, and gasoline. You can possibly survive without them, but you won't really be able to function.

The US government and state governments do regulate some essential services, especially when the nature of their delivery means a monopoly situation - it isn't practical to have more than one water or power company, the cost of multiple water and power lines would be prohibitive. In those cases, the monopoly must justify its costs to the government to get rate increases.

Even when an essential service is not a monopoly, it can be regulated by the government. There are multiple vendors of gasoline, but they are subject to government regulation of prices. Gasoline prices are regulated by the government, for example. The oil companies are allowed to tie gas pump prices to the current crude oil prices, which is why you see an immediate gas price rise when crude oil goes up in price. Gas prices also drop when crude oil prices drop - the flip side of that regulation. The end effect is to get people to use less gas when it's in short supply, by immediately raising the price.

To a degree, health care in the form of medicare, medicaid, and now Obamacare is regulated by the government, in that the government sets the requirements and approves the rates. The individual states also regulate insurance prices in general.

In the case of obamacare, the economic model hasn't quite worked out. Some of the more rural areas of the country have lost all health care insurance providers - I'm due to lose mine when BCA discontinues insurance in December. It seems that there aren't enough people paying full price to support the subsidized customers in those areas.

And unfortunately, the consequences of not having health care are a bit more serious than being out of power, or not having running water.

Health care isn't really a 'right', more as an essential service in sore need of a regulation overhaul.

  • 1
    I think you'll find there are people calling heathcare (as well as internet, water, sanitation and electricity) a human right. That you accept some other reason why they ought not be isn't a very good answer to why this argument that they shouldn't be can or cannot be applied to other cases. – user9389 Sep 22 '17 at 17:24
  • People call things they want a 'right' because they believe it gives more credence to their argument. And it does to gullible people with little desire to apply any form of logic and reasoning capability. But that doesn't make those people calling those things a 'right' even somewhat correct. Confiscating and rebranding the definition of a word is merely an underhanded tactic that has proven to be effective in the political world. Make no mistake about it, it is merely the mechanism used by schisters and con-artists to push their political agenda. – Dunk Sep 26 '17 at 21:49
-4

This is a question about consistent ruling and principles, as in: "IF we do this here, why not elsewhere too?"

Yes, that's so. It SHOULD be applied elsewhere too. However, rightwingers come up with all sort of farfetched notion about why the two aren NOT similar, like "the trial something the state is organising for its own purpose in the first place."
AS IF a healthy population is NOT in the state's best interest? So that argument fails.

A right to a transparent (speedy+public) trial is a protection against the risk of capricious actors of the state. {}
A right to a ACCESS to health care providers is a protection against the vagaries of life.
If we have the first, why not the other?
Also, since the principle of compelling other to help you is ALREADY there in the ER situation, the basics of this have already been decided. If you have a right to ER treatment, then you have a right to health care in general.
We can haggle over HOW MUCH, but the basic right is there.

{} For example, Trump would like to deport people and just lock up all those who threaten White Male Power, but we've got rights against that.

-5

Does this argument against healthcare as a human right not apply to a “speedy and public trial”?

No; it does not. There is a single dominant word within the language of the Sixth which undoes compulsion upon the Individual: Impartial. The jury language of the Sixth simply compels the State to compile an Impartial Jury and that the State may not deny the accused due process within a proceeding which the State has initiated. To discuss the logical inversion of the framing of the Sixth, the unavailability of an impartial jury compels the State to cancel its prosecution.

I phrased that response within the context of your question, but your question is incoherent by mentioning "the right to health care" and "the right to a speedy trial." Neither of those concepts passes the basic tests for ones supposing to be "human rights."

Since you asked for more than a simple answer ("build from the ground up" you said):

There is an amphiboly in your question concerning usage of the word "right" and the goal of my answer is to convince you that it exists. The fundamentals of methodological individualism should be sufficient to clarify that all forms of positivism require enslavement, but I first have to clarify some very important terms to realign them to their in domain, epistemological meaning and I need to introduce and define a few others so that communication may take place in domain without a full logical derivation of Liberalism.

I will still try to be as compact as possible with my explanations but I will also try to be prosaic in the build up to keep this content as easily consumable as possible due to the formal argument being fairly dry. If you have any specific questions, please raise them and I will try to clarify.

Foundation

Rights - are rational constructs which exist solely at the Individual level, are universally applicable, are inviolable, and are by necessity non-contradictory.

for the moment, we will avoid identifying whether Rights are "positive", "negative", or "either." That should become self-evident in due course.

Action Axiom - All Humans Act; the denial of the Action Axiom is itself an action.

Rational Actor - rational action is the primary distinguishing factor between Man and all other forms of life on Earth. It is Man's capability for abstract thought which allowed him to look beyond the present and prepare his affairs in the here and now for eventualities which improved his future circumstances. "Man" and "Rational Actor" are synonymous.

Self-Ownership - is the concept that each Man is sovereign over himself; without this principle, you must separate mankind into distinct classes with Man being dominated by whichever label you give to the class which can claim ownership over Man.

Individual - the only construct of humanity that exists in the real world; no further subdivision can be made and consistently identify that component as "Man." The Individual is the atomic administrative unit of humanity.

Collectives - are (abstractly speaking) simply groups of Individuals. The identification of a "Collective" is amoral in nature. It is the nature of the Individuals within the Collective which impart a moral classifier to a particularly identified collective.

Voluntarism - is the concept which asserts that the will of an Individual is a part of that Individual, and coupled with the principle of Self-Ownership is a natural extension of his life.

Labor - human expenditure of time towards a purpose of current value

Capital - human expenditure of time towards a purpose of future value

Original Appropriation - The mixing of one's Labor with an unowned natural resource. (In some libertarian circles, the "mixing" requirement is only met by changing the natural resource from its unappropriated state to signify that it is appropriated. In my own, the minimum requirement for "mixing" is to register the unowned natural resource somewhere within your own value scale. Certainly, if a hunter gatherer comes upon a bush recognizable for producing berries but it is not yet mature enough for producing those berries, the bush is still appropriated if he identifies it as Capital and waits for it to mature into a berry producing plant. 'Pruning a leaf' -so to speak- in order to "change" the natural resource such that it may be appropriated is a nonsensical requirement that is merely ceremony.)

Property - A rational construct applied to a resource that has undergone Appropriation. This is what is created when the Original Appropriation "mixing" event occurs. Property is the product of an application of Labor, Capital, and Time which are all the product of the expenditure of one's Life; property is considered sacrosanct through the sanctity of Life. A violation of "Property" is a violation of "Life."

Contract - a mutually agreed upon arrangement between two Individuals whereby their reciprocally inequitable value scales have led them to trade marginal units of something they have for units of something they don't have which is of greater perceived personal value than the marginal units being surrendered; a voluntary, bilaterally beneficial interaction of trade

Coercion - an assertion of compulsory interaction between two parties(forced by the coercive party) which serves to override the rejecting party's evaluation that the interaction is personally undesirable where the the coercing party evaluates that the interaction would be personally desirable; an involuntary, unilaterally beneficial interaction of trade; Coercion is enforced through either Aggression or Fraud; Coercion is the abstract principle behind all acts commonly identified as Crimes.

Aggression - Aggression is the Initiation of a forceful attempt at Coercion; direct Coercion.

Fraud - is the Initiation of a deceptive attempt at Coercion; indirect Coercion.

State - a State is a Collective which asserts it maintains primacy over the Individual. States are incoherent as purportedly peaceful constructs because they are merely groups of Individuals themselves.

Peace - a discernible status in which the Rights of the Individual are respected.

War - a discernible status in which the Rights of the Individual are not respected.

Other than for the Action Axiom, the phrasing of these definitions are ones I have chosen to use for this response. Each of the independent concepts are deep conversations in their own right. Each of the dependent concepts are somewhat short circuited in their descriptions in interests of keeping this as terse as possible. The Action Axiom is Ludwig von Mises' somewhat innocuous but quite important phrasing that underpinned his seminal Human Action. It is required reading for everyone on Planet Earth. It axiomatically declares that all Human Actions are in the positive.

With our foundation set

It is generally accepted as fact that prior to some precise point in the past -of which the actual moment in time is not important for discussion- that there was no such thing as a homo sapien. In the next point in the time continuum, a homo sapien came to be. Regardless of whether you believe that this switch over was due to Evolution, Ancient Alien intervention, or the other-dimensional decree of an invisible ethereal grandfather in the sky, the switch of the global abstract status from "Man does not exist" to "Man exists" was a real thing.

First Man

In this moment and for an indeterminate number of future ones whose precise number is lost to Time, this first homo sapien was the only human on Earth. This human certainly was born to a mother, but that mother was quite simply stated not human. This first human was born into the Law of the Jungle and this first human had to survive within it if he ever hoped to do anything more than Kill and Live; Don't and Die. For the period of time in which this human was the only one in existence, -let's assume it was at least a measurable lapse of his life worthy of discussion- he had no rights. They were a worthless, hollow concept. Only humans respect human rights; there were no other humans.

This human was in an environment, and he had to use his Reason for himself to survive. Skipping forward slightly and picking up at a point in time where this human was autonomous, his life consisted of surviving this day to earn the ability to see the next. At a fundamental level, he was required by nature to provide for his needs for himself; if he wanted food, he had to take it; if he wanted water, he had to get it; if he wanted shelter, he had to find it; if he wanted clothing, he had to make it. Life would have been dreadfully difficult for this Man and was exceptionally Laborious in its nature, but we know that he persevered because we are here. At some point in his life, the First Man reasoned about ways to improve the productivity of his Labor towards meeting the bare necessities of life to free up some of his time for leveraging his human capacity for abstract thought towards Capital purposes, which could be used to improve productivity further which would free up more time which would etc, etc, etc. The First Man was by necessity an Economical one, choosing decisions which either improved his quality of life or had the least likelihood of reducing his quality of life. This had to be done, because there was no one in existence to assist him should he fall.

Let's call him Crusoe

Now, to speed this along, let's assume that this has all occurred on an island and the First Man -let's call him Crusoe- has kept within an area of relative security whereby he has ready shelter, ready water, and a reliable food source. Through the Capital process, he has improved his productivity to a point where he has been able to plan out provisions for a trek to the other side of the island "to see what is on the other side" and when he leaves his isolated area and travels into uncharted territory, to his surprise, he discovers that he is not alone in this world. There is another Man on the other side of the island! Let's call him Friday.

To briefly give this development of humanity a fairly inadequate treatment in the main but a sufficient for current purposes, let's talk about the scenarios and the implications of this event. There are a myriad of other interesting discussions we could have from this construction, but we're focusing on the concept of human rights. So let's frame this interaction in that light.

We have two individuals, each having never contacted another human.
By the Law of the Jungle, this interaction would likely result in Aggression and mortal combat. But while Man developed out of the Law of the Jungle, he is not bound to the primitive whims of its strictures and dicta. Certainly there is a mammalian portion of our brain that is always struggling to bash in the skulls of strangers with antelope femurs, but the portion of our brain that has earned us our place on Earth overrode that primal instinct. In the first example, let's surmise that Crusoe and Friday each chose to be Humans; their interaction would have been one of curiosity, discovery, and introspection.

Introduction of Subjective Value Scales, peripherally touching on Marginal Utility

Assuming they choose Peace as Equals, it could (for the sake of the example) be discovered that on his side of the island, Crusoe subsists on an abundance of fish and coconuts for sustenance but very little else; Friday, on his own, has berries, game, and coconuts. Crusoe's circumstances would be improved by convincing Friday to trade some of the food sources Crusoe does not have for a food source that Crusoe does have. Assuming that among his current value scale, Crusoe values his fish the highest and his coconuts the lowest, Crusoe would likely first seek to trade some of his coconuts for some of Friday's berries. But in Friday's resource basket, he already has a source for coconuts so he rejects those terms. Under peace, Crusoe would have to eliminate his coconuts as a potential trade source and evaluate whether he values "the variety provided by acquiring berries as a food source" highly enough to offer some of his fish as consideration and if so, what units of each he would be willing to accept in trade.

Rights

You might be wondering what this has to do with human rights, and the answer is quite a lot but we first must first separate out what rights are not. In this very rudimentary Economy of two, either party is physically free to reject peace and Aggress against the other party in force; that is the law they were borne out of but -again- that makes them living beings but is not what makes them Man. So long as both of these parties agree to peaceful coexistence or at least Non-Aggression against one another, this voluntary arrangement would work and there would need to be no concept of rights for either. Where their actions produce no conflict, their individual status is the same as it was in that period of time in which each believed themselves to be the only human in existence. Crusoe and Friday are each autonomous Actors who apportion their own Reason, Labor, and Time to their own devices and ends.

Consistent with the Action Axiom, Human Actions are positive in nature, even if that choice of action is the avoidance of action.

Choices of Actions in isolation are constrained only by an Individual's own rational desires and by the limitations of the physical world they are within. So long as no conflict exists between Crusoe and Friday, this isolated status is the one which holds for each. Crusoe requires no permission from Friday to take fish from his own fisheries;Friday requires no permission from Crusoe to take berries from his own berry bush. To support either of these listed coercive restrictions as having legitimacy is to declare inequality between Crusoe and Friday in which one is necessarily the Master and the other is necessarily the Slave. You are certainly free to arrange your thoughts as such, but you should know what you are supporting; Slavery. You may see a switching of terms and consider it a sleight of hand, but Coercion and Slavery are synonymous. If you reflect on them logically, you will see it as so.

The only true restrictions on Individual Actions are ones in which that action would be an act of Aggression upon or an act to Defraud another Individual. This is seen to be the case by revisiting that each Individual is a self-owner of his own Life and his rights of self-ownership are non-contradictory and inviolable. For one Individual to initiate Aggression upon another, he must declare that he possesses ownership rights over that other Individual and this would be a contradiction of his own self-ownership.

What has just been mentioned is the critical point where Human Actions are legitimately restricted; to state it again- when an act would violate another Individual's self-ownership, this act is restricted for it would require the violator to assert at least partial ownership rights over the aggressed's Life which would be a contradiction of his own self-ownership. This is the definition and limitation of the concept of an "Individual Right."

In that moment in which Crusoe met Friday, every Individual Right which would ever exist was in existence. The mechanics of your question are somewhat nonsensical at face, but giving an honest treatment to your phrasing of "...human right to health care" above (I understand that you did not phrase it within the epistemological framework of methodological individualism, so I want to treat your words fairly) the only way in which this phrase can make any sense at all without introducing a crime is:

"...human right to health care..." Positive: Each Individual shall remain unimpeded from seeking voluntary cooperation from health care service providers

Negative: Each Individual decision to reject health service against their personal judgment shall be enforced.

...each Individual is already unimpeded from seeking voluntary cooperation from health care service providers; if I may take a "softened" stance for a moment, what I believe those professing a "human right to health care" likely have at issue is that some people wish to contract services with no means of consideration for contracts required to obtain those services peacably. There is no construct within Human Action which can legitimately prevent an Individual from actively seeking voluntary contracts with health care providers for service except where the seeking of that contract would violate some second or third party's rights.

...as you volunteered in your earlier comment:

Azor-Ahai: Doctors are already required to respect their patients wishes, even when it goes against their judgment. No one is suggesting a right to health care would direct providers to hand out morphine to anyone who asks for it

each Individual "health care seeker's" rejection of care is already protected. each Individual "health care provider's" rejection of care is already protected.

There is nothing that a "human right to health care" would add that did not already exist when humanity was nothing more than Crusoe and Friday.

Regarding Positivism in the general, and the so-called "human right to health care"in the specific.

As for the assertion that positivism necessarily requires Slavery: let's assert a "positive right to food" into existence and try to fit it within the framework that has been established. Since Individual Rights are universal, inviolable, and non-contradictory; both Crusoe and Friday have an equal "right to food." This declaration of "a right to food" is unnecessary in the negative sense because food which has been originally appropriated is already protected by property rights. Calling out "food" specifically in this sense is entirely superfluous. Food in the appropriated state is already protected by the extension of the Right to Life, which -again- is the wellspring of all human rights.

So, towards the positive sense, the "human right to food" can only mean to assert a right over food which you have not already appropriated. Food which you have not already personally appropriated is in one of two states:

[Unappropriated] or [Appropriated By Another]

If that food is unappropriated, you are perfectly free to claim it for yourself from nature. By definition, there is no conflict of your action which claims the resource and another appropriator's claim. In this sense, there is no need to assert a "human right to food" because the ability to appropriate resources from nature which are in a state of unappropriated is self-evident.

...as I have hopefully illustrated,

-"the right to food" is unnecessary in the protective sense; appropriated food is already protected as property. - "the right to food" is unnecessary in the active sense when that food is unappropriated; unappropriated food is unclaimed and there can axiomatically be no conflict of claims.

so...the only place for "the right to food" to possibly exist is in the active sense when you wish for food which another possesses. There is already a principle which covers how you can make someone else's property your own under a system of Peace, and that is Trade.

So, add "Trade" to the list of potentialities for "the right to food" to cover.

  • "the right to food" is unnecessary in the active sense when food is appropriated and peaceful exchange is sought; all one has to do is desire someone else's property and peacefully contract for it to make it his own.

This leaves but one circumstance in which "the right to food" can possibly exist, and that is in the active, Coercive sense. The "right to food" can only serve to provide an override to an Individual which allows him to force another to trade against his wishes. The rationale behind such a construct is invariably that food is a requirement of Life and in order to respect the right to Life, the system must respect the means in which one may secure Life. The "framework designers" would retort that the system is not and should not be designed to be concerned about whether you are able to secure your Life; the system is only concerned whether your security of your Life is legitimate...and there is a reason for this.

Propose an alternate reality in which a positive right to food is a legitimately secured Individual Right, introduce two people, and introduce one and only one indivisible unit of food. Under a system of positive rights, Crusoe and Friday each have ownership claims over the unit of food even though the food is either appropriated by one of them or it is unappropriated at all. As each has food as a requirement to secure his own life, each has a requirement to that unit of food and the "positive right to food" has now created two independent legitimate but conflicting claims to the food. Neither may eat the unit of food without violating the other's rights. To eat this unit of food is simultaneously a requirement of Life and an Act of War against the other party;concocting this monstrosity has just caused the rights of the Individual to become contradictory.

The most common attempt to resolve the contradiction is to introduce "comparatively more need" where the one possessing less is in a protected class where they can take from those having more who have "comparatively less need" but that attempt fails at first blush. To run the scenario in which Crusoe and Friday both require a single extant unit of food, the one without possession of the food is in comparatively more need than the one who possesses the food. When he asserts his claim to the food, their statuses toggle. Crusoe takes the food and Friday takes rights to the food. Friday takes the food and Crusoe takes the rights to the food. Neither is permitted to eat without violating the others rights. You can change this to health care, you can change this to rubber ducks, you can change this to jet packs to Mars. In no permutation does the object of the "positive right" change the dynamic that has been identified.

I'll cut right to the chase; this argument has been had thousands upon thousands of times and every single time it always comes out the same. The only way you can resolve a conflict in a system which maintains positive rights is to give one Individual primacy over another, which is to subjugate and enslave the other.

This.Is.What.Slavery.Is. If anyone thinks it is anything else, they are flat out wrong and counted among the enemies of Peace and Mankind.

No system of positive rights can exist without Slavery or legitimizing War...doesn't sound like a Peaceful system to me.

Now..for that amphiboly. The "right to a speedy trial" is not really an individual right. It was a rejoinder to Statist policies of the day in which the State could effectively punish an accused without a conviction merely by delaying its own processes. This "right to a speedy trial" as documented is more clearly stated as "the right to resist a non-speedy trial." As originally phrased, to concoct it to mean a "positive right" is to assert that each Individual may claim ownership rights over a "speedy trial" and this is nonsensical as an Individual Right. Certainly, if this were the "[protected and reserved positive claim] [for an Individual to call] a speedy trial" then the trappings of a trial would have to be compelled upon some ready individuals who were reserved for meting out the resources that these claims supported.

With respect to the phrasing within the United States Constitution

With respect to the phrasing within the United States Constitution, when The State is being referred to, it is spoken of in the positive because the purpose of the United States Constitution is to declare the Social space for the State to exist from an initial status of non-existence. When the United States Constitution refers to Individual Rights, it always refers to them in the negative except for in the Sixth...of course you had to choose the outlier for your discussion.

As for the Bill of Rights, it serves to document specific prohibitions directed against the State; not to Individuals.

1st [The State] may not establish [against] [The Individual]

1st [The State] may not abridge [The Individual]

2nd [The State] shall not infringe upon [The Individual]

3rd [The State] shall not quarter troops against [The Individual]

4th [The State] shall not violate [The Individual]

5th [The State] shall not hold [The Individual]

5th [The State] shall not subject [The Individual]

5th [The State] shall not compel [The Individual]

5th [The State] shall not deprive [The Individual]

5th [The State] shall not [confiscate property of] [The Individual]

6th [I will save to the end. The Sixth follows a different format]

7th [The State] shall not [deny the right to trial] to [The Individual]

7th [The State] shall not [override the results of jury trial] of [The Individual]

8th [The State] shall not require [The Individual]

8th [The State] shall not impose upon [The Individual]

8th [The State] shall not inflict upon [The Individual]

9th [The State] shall not deny [The Individual]

9th [The State] shall not disparage [The Individual]

The 10th explicitly fills in any loophole The State might find in the previous 9: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

As for the Sixth, which is the subject of your original question: this particular one was in direct response to British Law in which it was routine for individuals to be punished by imprisonment awaiting delayed trials for charges which were ultimately dismisses or the accused was found not guilty. The Sixth begins with "In all criminal prosecutions", which already assumes that the State has initiated action against an Individual. The State is the Initiator of events and where the other Amendments served to document where the State could not act, the Sixth presupposes that the State has legitimately initiated criminal prosecution. Within criminal prosecution, it is already assumed that those involved within the prosecution have volunteered for their duties. As for the citizenry who are drafted into service of the State for jury duty: Impartiality is a requirement for service and partiality is entirely subjective. The duty is not upon the individual to serve jury duty; the duty is upon the State to seek impartial participants to serve jury duty from within "the state and district" of the accused (i.e. "His peers")

It is compelled to compose a jury of impartial participants. If it can't, it must cease its prosecution. That's what the Sixth says.

  • 2
    Heavily ideologically biased post that doesn't offer a fair hearing to the opposition. Utterly useless. – Braydon Sep 22 '17 at 4:22
  • 3
    "right to [demand] health care [from a provider against their judgment]" no one made a claim about demanding health care against a provider's judgment. – Azor Ahai Sep 22 '17 at 4:27
  • @Azor-Ahai if you were speaking of "healthcare as a right" truly from the perspective of human rights, you are referrijg to State licensure requirements and asserting that the State shall not intervene between someone seeking health care and someone providing "health care" by preventing a provider from acting without meeting the State's arbitrary requirements. – K. Alan Bates Sep 22 '17 at 12:07
  • 2
    @K.AlanBates There is absolutely no chance you can support these claims. I'm sure you can show that this is against YOUR ideology but your ideology is not the god given authority on human rights. – Braydon Sep 22 '17 at 20:23
  • 1
    Anytime logic and reasoning is used it is down-voted by liberals as they have absolutely no means to counter facts, logic and reasoning. While rather long, this was a great post that requires some thinking but exposes the whole concept of calling everything a right as being nothing more than a marketing campaign. – Dunk Sep 26 '17 at 22:12

protected by Philipp Sep 23 '17 at 9:48

Thank you for your interest in this question. Because it has attracted low-quality or spam answers that had to be removed, posting an answer now requires 10 reputation on this site (the association bonus does not count).

Would you like to answer one of these unanswered questions instead?

Not the answer you're looking for? Browse other questions tagged or ask your own question.