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The right to healthcare

01 November 2010 Robert W Vivian, University of the Witwatersrand

The long-anticipated announcement that South Africa will introduce a National Health Insurance scheme has been made. The details are still awaited – and, as is often pointed out, “the devil is in the detail”.

The concept of a National Health Insurance scheme is based on the notion that everyone has a right to healthcare. What does “the right to healthcare” mean and is the proposition that everyone has a right to healthcare valid?

Defining a right

The point of departure to understand want is meant by “having a right” is the writings of the English philosopher John Locke, who gave mankind the commonly expressed idea that each person has a right to life, liberty and property. This idea is embodied in many constitutional documents, but perhaps the best known is the American Declaration of Independence.

Right to life

To understand a right, let us start with the right to life. We all imbued life when we are conceived. This leads to a very important observation about Locke’s rights. Life is not given to us by any government or any constitutional document. Life is a natural phenomena, it is the product of nature. Not surprisingly, Locke referred to these rights as “natural rights”.

Although life cannot be given to anyone, it can certainly be taken away. It can thus be said that we have a right to life, indicating that life belongs to each of us and that others should not interfere with this right to life. In fact, this has been decreed as a law prohibiting murder, which makes it a serious crime to take the life of another. This law is of general application - it applies to everybody. No-one may murder another. To do so is a criminal offence.

Protection of natural rights

Clearly, each person, individually, has the right to defend him- or herself. This right to defend also does not come from any state. It is natural that we can defend ourselves. Since an individual can do little to protect him- or herself against a mob, individuals form societies to protect themselves.

This, argues Locke, is the only logical reason why individuals would form governments: to collectively provide a mechanism to protect their natural rights. The state has an obligation to enforce and uphold the laws which exist to outlaw interference with natural rights.

Right to liberty and property

The right to liberty and the right to property are also natural rights. Liberty is not given to us by governments or constitutions. We are all born free. Attacks against freedom are protected by a number of specific laws which are also of general application. For example, kidnapping is a criminal offence.

Property is more interesting. Unlike life and liberty, we are not born with property. Locke argues that we have, from nature, the ability to work. The fruits of our labour, from whence property derives, belongs the person who has worked for it. In our modern society, income comes from working and this income can be converted into property. Property, then, is the natural consequence of our labour and the exchange of that income to acquire property. The right to own property is also protected by laws of general application that are binding all others, for example, the laws that prohibit stealing.

Ancient social contracts

Life, liberty and property are all natural rights. They arise naturally. The existence of these rights is not dependent on governments or constitutions. These rights are protected by a number of specific ancient laws, all of general application and all expressed in the negative. The laws against murder, theft, kidnapping and rape have always existed - they are common to the ages and societies and transcend governments and time. The role of the government is to uphold these laws that protect natural rights.

Right to heathcare

Does the so-called “right to healthcare” arise naturally? The answer is clearly no. No one has a right, naturally, to healthcare which everyone else must respect. Healthcare is not an inherent right.

Because there is no pre-existing natural right to healthcare, there cannot be a negative law of general application. Since there can be no negative law of general application, there can only be a positive law: “you have a right to healthcare”. Instead of protecting the right, the state becomes the body with the obligation to provide the right.

The right to healthcare cannot be imposed on individuals as, for example, the obligation not to interfere with natural rights can be imposed. The state thus ceases to be the enforcer of laws to protect the natural rights and instead becomes the provider of benefits. It is not a protector of laws at all, it is a provider.

Violating natural rights

How is the state to provide the benefits of healthcare? It can only do that if it raises money to pay for the benefits. To raise the money, the state must take money from the residents in the state.

This runs exactly contrary to natural rights! The state is taking the property of residents. The purpose of forming a government is to protect against such takings. The very institution brought into existence to protect property now becomes the expropriator of the property it is supposed to be protecting!

There is no right to healthcare. The very opposite is true. The so-called right to healthcare is actually an attack on property rights.

Unconstitutional

If there is no right to healthcare, where does the notion derive from? In South Africa the argument is based on the Constitution. It is often said that South Africa has the most progressive Constitution in the world. It seems to me that South Africa has the most unconstitutional Constitution in the world.

In the past, it was understood that constitutions are not there to create laws. They are supposed to declare the ancient inalienable rights. England has no constitution, because when constitutions were coming in vogue, it was realised that once existing rights are reduced to written form in a constitution, the danger exists that people will believe that rights are derived from the constitution.

Once that happens, the very inalienable rights it was supposed to protect can be abrogated simply by changing the words of the constitution.

This can be illustrated by the touchstone argument of the age, coined by John Austin. If a sovereign power exists, that sovereign power can declare that blue-eyed babies be put to death. The argument, then, was that if you want to protect blue-eyed babies, a provision should be included in the constitution which declares that blue-eyed babies may not be put to death.

The English jurists realised this would not work. If you can put a provision in a constitution which says blue-eyed babies cannot be put to death, you can just as easily put in a provision that says blue-eyed babies can be put to death.

A constitution cannot protect blue-eyed babies. But if there is an ageless, unwritten law which protects the natural right to life, then no one can be declared to be put to death, not even blue-eyed babies. Thus, without a constitution, blue-eyed babies cannot be declared to be put to death.

If one believes that rights come from a constitution, then a constitution does not help. Dicey, England’s most famous constitutional law jurist, argued that the only way to protect blue-eyed babies is revolt - the right of self-defence.

Clearly, what is now happening in South Africa, is exactly what the English jurists knew would happen. The constitution is being subverted to do the very opposite of what a constitution is supposed to do: instead of protecting property, it is taking property from its residents.

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