A Right to Health Care

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A Right to Health Care

Pavlos Eleftheriadis*

Abstract

What does it mean to say that there is a right to health care? Health care is part of a cooperative project that organises finite resources. How are these resources to be distributed? This essays discusses three rival theories. The first two, a utilitarian theory and an interst theory are both instrumental, in that they collapse rights to good states of affairs. A third theory, offered by Thomas Pogge, locates the question within an institutional legal context and distinguishes between a right to health care that results in claimable duties and other dimensions of health policy that do not. Pogge’s argument reilies on a list of ‘basic needs’, which itself, however, relies on some kind of instrumental reasoning. The essay offers a reconstruction of Pogge’s argument to bring it in line with a political conception of a right to health care. Health is a matter of equal liberty and equal citizenship, given our common human vulnerability. If we are to live as equal members in a political community then our institutions need to create processes by which we are protected from the kinds of suffering that would make it impossible for us to live as equal members.

Do we have a legal and moral right to health care against others? There are

international conventions and institutions that say emphatically yes and they

summarise this in the expression of ‘the right to health’, which is an

established part of the international human rights canon. The International

Covenant on Social and Economic Rights outlines this as ‘the right of

everyone to the enjoyment of the highest attainable standard of physical and

mental health’. But declarations such as this remain tragically unfulfilled.

* Fellow in Law, Mansfield College, University of Oxford. An earlier draft of this essay was

first presented at the workshop on the human right to health at the University of Sao Paulo

in August 2010. I am grateful to all participants for their comments and discussion and

especially to my co-panellists, Guilherme de Almeide and Thomas Pogge and to Thana de

Campos for continuing conversations on these matters.

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According to recent figures, roughly two billion people lack access to essential

drugs or to primary health care. Millions are afflicted by infections and

illnesses that are easily avoidable or treatable. In the developing world many

children die or grow stunted and damaged for lack of available treatments.

Tropical diseases receive little or no attention by the major pharmaceutical

companies’ research departments. Is this a massive violation of the right to

health? And if so, why does it attract so little attention? Is it because our

supposed commitment to human rights and the rule of law is hypocritical and

hollow? Or is it because the right to health is a special case of a right, so that

these tragedies are no violation at all? Jennifer Prah Ruger summarised this

puzzle when she wrote: ‘one would be hard pressed to find a more

controversial or nebulous human right than the right to health’.1 In this essay

I discuss three different theories of a right to health care. I conclude by

offering my own reconstruction of one such theory.

I.

This is a complex subject that touches on deep and unresolved issues of

ethics, medicine and law. At its heart lies the terrifying and universal fact of

human vulnerability. An external event, say an earthquake, a financial collapse

or a war, can destroy our lives at an instant. This sets health apart from the

1 Jennifer Prah Ruger, Health and Social Justice (Oxford: Oxford University Press, 2010) 119.

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different issue of poverty.2 Our health is certain, one way or another, to give

way. The awareness that this vulnerability is common to every man and

woman in the world gives rise to common sentiments of sympathy and

compassion and to ethical thinking itself.

Health is not entirely a matter of luck. Suffering an illness or an injury

is a matter of luck, even when the social determinatns of health change the

probabilities.<Really? What about all the “social determinants of health”?>

But health care is not a matter of luck. Medical care can reverse the effects of,

say, a broken leg, a malignant tumour or an HIV infection, which could

otherwise kill us. Our doctors can also give us a clear diagnosis, helping us

plan whatever time we have to live. But effective health care is a matter of

very complex cooperative processesincluding networks of education,

professional regulation, information, expertise and commerce. Such networks

connect persons across the globe. One’s survival may thus depend on a

medicine produced in India, shipped to one’s country on a Greek ship,

administered in London by a Ghanaian doctor who was educated in Germany

and being paid by an insurance company based in France, financed by

another company based in New York.

Medical resources are of course finite. They are part of a cooperative

project that makes everyone better off and some of us much better off in that

it saves them from certain death or long suffering. Because the benefits and

2 See now the extremely useful essays collected in Thomas Pogge (ed.), Freedom from Poverty as

a Human Right: Who Owes What to the Very Poor? (Oxford: Oxford University Press, 2008).

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costs are a result of cooperation, we need to find a fair way of distributing

them. Here we are exactly at the heart of what Rawls calls the ‘circumstances

of justice’.3

But if health care is a matter of distribution, the suggestion that it is

also a matter ofa human right sounds puzzling. When philosophers think of

the general problem of justice, i.e. the distribution of the costs and benefits of

social co-operation, they rarely advocate that the answer to that problem is a

list of fundamental rights to some resource or other. The answer cannot be

that simple. No particular right or duty can encompass what is required.

It is true that libertarians like Robert Nozick, start from the premise

of a right to self-ownership (and, therefore, of rights to property to things we

have mixed our labour with) as a key to justice but this has long seemed an

unattractive and poorly argued answer, which denies the very idea of

distributive justice. Outside the libertarian argument, there is no ‘human right

to social justice’, so to speak. The principles of social justice give rise to

human rights, but justice is not exhausted by human rights. Hence, in Rawls’

argument for example, basic rights are part of the first principle of justice,

whereas distributive issues are dealt with by the second principle or are left to

be resolved by the legislative process under the ‘four-stage sequence’.4 In this

way basic rights are independent of any distributive issues and remain

3 John Rawls, A Theory of Justice, revised edition (Oxford: Oxford University Press, 1999) 109-

112.

4 Rawls, A Theory of Justice 171-176.

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constitutional essentials beyond the political rivalries between Left and Right.5

Health can be a matter of all three levels identified by Rawls, i.e. a problem of

basic rights, a problem of distributive justice for the basic structure and a

legislative challenge for a legitimate government. Different aspects of health

will fall under these different domains and different duties will follow as a

result.

The simple expression ‘a right to health’ seems to deny this

complexity. It invites the thought that the ‘human right to health’ is a kind of

moral fundamental that prevents further balancing or assessment or indeed

resorting to the uncertainties of the political process. When we say, for

example, that there is a right to freedom of speech we do not ask how much

such freedom each one of us should enjoy nor do we wish to see the issue

decided by a parliament. We assume that everyone should enjoy it equally and

that in case one does not, a court will vindicate them according to ordinary

processes of the rule of law. When we criticise a government for the use of

torture, for example, we are indifferent to the distribution of suffering among

its unlucky people. There is no defence that torture is equally applied to all or

that it has been approved by the dominant political forces of the day.

This kind of categorical and institutional duty that normally

accompanies rights seems impossible in the case of health. We accept that

5 For the idea of ‘constitutional essentials’ see John Rawls, Political Liberalism, revised edition

(New York: Columbia University Press,1996) 227-230. This is also an idea explored by

Thomas Scanlon in his ‘Human Rights as a Neutral Concern’ in Scanlon, The Difficulty of

Tolerance: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2003) 113.

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differences in health and health care are a fact of ordinary life. They are most

commonly the result of private choices. Just like in other areas of social life,

the distribution of health care is partly down to personal choice and partly a

matter of general public policy, whenever a political society decides, like in the

United Kingdom, to impose a central health service available to all without

charge at the point of use. We ordinarily draw a distinction here, of course,

between emergency health care and general care. Whatever their health

service policy, all jurisdictions in Europe and North America (including the

United States) provide for accident and emergency treatment to all even the

uninsured or those without immigration status. But this does not apply to

non-emergency treatments. Such services are to be bought and sold, either

directly or through insurance, just like other essential goods and services, for

example those related to nutrition and education. Human life is organised via

complex personal relations and exchanges. Goods are not distributed form

above. There cannot bea right to milk or a right to literacy books, for

example, much as they both contribute to human well-being.

It is this intuition about the cooperative nature and distributive

complexity of health care that makes the right to health so puzzling. It

suggests that the unacceptable state of health care in the Developing World is

not perhaps a violation of an equal right, similar in gravity to the suppression

of political dissent or of religious belief. Oppression is a wrong committed by

one person against another. Lack of health care is different. It may be just an

aspect of poverty, a sad fact about the world, a matter of the accidental side

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effects of some process of economic distribution and hence a much less

urgent moral matter. Here is then the problem. Our intuition about the

complexity of health care seems to rob the idea of a human right to health of

its main purpose: of elevating health care – all of health, not simply

emergency care - to a special case of a moral fundamental. Health care or

health itself is not such a fundamental, just like milk and books are not a

moral fundamental.

Which way are we to resolve this dilemma? I wish to argue that the

problem is caused by some very abstract assumptions about rights. These

assumptions are common but mistaken. Some theories of rights see rights in

an ‘instrumental’ sense. They say that rights secure access to something good

and have value to the extent that they achieve this good. So, for example, we

may say that there has to be a right to food if food is a good thing, or a right

to a clean environment if a clean environment is a good thing. The view I

wish to defend denies this link. It argues that rights are not access to goods.

The instrumental understanding of rights confuses the idea of a right with

that of a goal.

Rights are relational, they consist in relations between persons and

concern the meaning of our actions. Torture for example is not wrong

because of the pain it causes but because of the attitude it expresses. Stopping

torture does not simply aim to stop the pain. Torture is wrong because it

shows contempt for another person through the infliction of pain. This is

why the proper response to torture is to punish the perpetrator as a criminal.

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So the right against torture is something more complex than the alleviation of

suffering. Goals are simpler: they do not have a relational structure The key to

the puzzle of the right to health lies, to my mind, first in a distinction between

rights and goals and second, in a distinction between fundamental and other

moral reasons.

II.

I start with a summary of the right to health as seen by the leading documents

and institutions of international law. These are not offered as philosophical

arguments nor should they be read in that light. But I find them extremely

useful and informative. They are conclusions of practice and experience,

reached in diplomatic conferences by seasoned practitioners. They express a

common consensus among representatives of different cultures and systems.

So they address all of the problems that are likely to be faced in practice by

international organisations, governments or non-governmental organisations

in the course of providing assistance in health care in the Developing World.

Such statements can be significant starting points, both as to the questions

and as to the answers likely to occupy any theoretical account.6

6 For very useful overviews see the essays collected in Andrew Clapham and Mary Robinson,

Realising the Human Right to Health (Zurich: Rüffer and Rub, 2009), Sofia Gruskin, Michael

Grodin, George J. Annas and Stephen P. Marks (eds.), Perpectives on Health and Human Rights

(New York and London: Routledge, 2005)

http://www.ruefferundrub.ch/

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Perhaps the boldest statement of the human right to health is to be

found in the Constitution of the World Health Organization: ‘The enjoyment

of the highest attainable standard of health is one of the fundamental rights of

every human being without distinction of race, religion, political belief,

economic or social condition.’7 The Universal Declaration of Human Rights

had used slightly different terminology. Article 25(1) reads:

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, and the right

to security in the event of unemployment, sickness, disability,

widowhood, old age or other lack of livelihood in circumstances

beyond his control.

There is a more careful emphasis here on medical and other care, rather then

health itself.

The International Covenant on Economic, Social, and Cultural Rights

of 1966 in its Article 12 returned to health, not health care, as the required

standard:

7 Constitution of the World Health Organisation, 1946/2006. There is an ongoing debate on

the adequacy of this definition in light of its maximal ambition. See for example the more

focused attempt at linking health with the ability of a person to adapt to his or her physical

circumstances offered by Machteld Huber et al, ‘Health: How Should we Define it?’ BMJ

2011; 343: d4163.

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1. The States Parties to the present Covenant recognize the right of

everyone to the enjoyment of the highest attainable standard of

physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant

to achieve the full realization of this right shall include those necessary

for:

(a) The provision for the reduction of the stillbirth-rate and of infant

mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial

hygiene;

(c) The prevention, treatment and control of epidemic, endemic,

occupational and other diseases;

(d) The creation of conditions which would assure to all medical

service and medical attention in the event of sickness.

This more ambitious account of the right to health is subject to a number of

general qualifications that apply to all social and economic rights. In article 1

the Covenant recognises the right of peoples to ‘freely pursue their economic,

social and cultural development’. This must suggest that peoples have a great

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deal of freedom to determine the place of health relative to all other aims,

economic, social and cultural.

Two further general qualifications are that all the rights protected by

this Covenant are to be ‘progressively achieved’ subject to ‘available

resources’ according to article 2:

Each State Party to the present Covenant undertakes to take steps,

individually and through international assistance and co-operation,

especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of

the rights recognized in the present Covenant by all appropriate

means, including particularly the adoption of legislative measures.

This provision is to be contrasted to the equivalent Article 2 of the

International Covenant on Civil and Political Rights, under which the

obligations to respect civil and political rights are immediate: ‘Each State

Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights

recognized in the present Covenant, without distinction of any kind, such as

race, colour, sex, language, religion, political or other opinion, national or

social origin, property, birth or other status’.

These qualifications make the right to health very different to the

rights against torture or against religious discrimination. First, the right to

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health does not outline distinct actions that the government is to perform or

avoid. There is neither a concrete negative nor a positive duty, e.g. not to

inflict intentional pain and suffering, or not to discriminate on grounds of

religion. Instead, the Covenant outlines general goals or aims that are to be

achieved ‘progressively’ and at a large scale. Second, the requirements do not

concern conduct towards specific individuals, e.g. the potential victims of

torture or religious discrimination. Instead, they are addressed to a population

as a whole. The provisions concern general public policies that will produce

broad benefits for all. This is true for example in the expression ‘the creation

of conditions which would assure to all medical service and medical attention

in the event of sicknesses’. Third, the aims and goals to be achieved are not

categorical but conditional on what is achievable or what is possible under

available resources. What is achievable will depend on some kind of balancing

of health against other values and priorities.

These differences are elaborated upon in welcome detail by the

highly influential report of the UN Committee on Economic, Social and

Cultural Rights, in its “General Comment 14”, which clarifies how the human

right to health can be approached in practice.8 The Committee recognises that

8 UN Committee on Economic, Social and Cultural Rights, ‘The Right to the Highest

Attainable Standard of Health – General Comment 14 (2000)’, Twenty-second session

Geneva, 25 April-12 May 2000. Special mention should be made in the UN Convention on

The Rights of the Child, which came into force in 1990. Article 24(1) reads: ‘States Parties

recognize the right of the child to the enjoyment of the highest attainable standard of health

and to facilities for the treatment of illness and rehabilitation of health. States Parties shall

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the right to health imposes general and not individual obligations on

governments. Their burden is to pursue broadly policy aims. This report

specifies that ‘progressive realization means States parties have a specific and

continuing obligation to move as expeditiously and effectively as possible

towards the full realization of article 12’.9 The Committee adopts a similarly

goal oriented account of the right, by stating that it must be understood as a

right to the enjoyment of a variety of facilities, goods, services and conditions

necessary for the realization of the higher attainable standard of health.10 And

it adds that it is an ‘inclusive right’ extending not only to timely and

appropriate health care but also to the underlying determinants of health,

such as access to safe and potable water and adequate sanitation, an adequate

supply of safe food, nutrition housing, education etc.11

How can this very broad range of issues be specified in any kind of

concrete duty? The Committee offers a sophisticated account of what a right

entails, including obligations to respect, protect and fulfil its requirements.12

The Committee elaborates on all of them and it comes closest to outlining a

specific set of duties when it says of the obligation to fulfil as follows: ‘States

must ensure provision of health care, including immunization programmes

strive to ensure that no child is deprived of his or her right of access to such health care

services’. According to UNICEF, this Convention has been ratified by all countries of the

world, except Somalia and the USA.

9 General Comment 14, para 31.

10 General Comment 14, para. 9.


12 General Comment 14, para 33.

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against the major infectious diseases, and ensure equal access for all to the

underlying determinants of health, such as nutritiously safe food and potable

drinking water, basic sanitation and adequate housing and living conditions’.13

These general aims are accompanied by numerous others concerning for

example affordable health insurance, safe motherhood, appropriate training

for doctors, sexual and reproductive health services etc. In other words, the

right to health entails the formulation of a complete health system and the

pursuit of a particular public health policy. But, of course, according to the

general qualifications we discussed earlier, all these obligations are subject to

‘progressive realisation’, if resources are available.

I do not think anyone can deny the wisdom of the advice contained

in these statements. The instructions to respect, protect and fulfil the right to

health by taking concrete general measures offer a comprehensive blueprint

of health policy. To introduce mechanism of accountability is the best way to

guarantee good government in the future. All nations should pay heed to

these instructions. But to what extent do they ground duties corresponding to

a human right? Civil and political rights, such as the right against torture or the

right to free speech, are not to be ‘progressively achieved’. They are not

conditional on available resources. What they require does not concern

collective policies that depend on budgets and funding, but require clear

conduct toward each particular individual, which is determined by a clear view


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of a wrong to be avoided. Failure to respect the right towards a single

individual is a violation of the right in question in itself, not as an example of

a failure to apply a general policy.

In this sense these rights are both minimal, in that they concentrate

on one particular area of action, and ‘categorical’, in the sense that their

limitations are not the result of the balancing of costs and benefits. Rights

give way only when particular reasons obtain, for example for the sake an

emergency. This is captured by Thomas Scanlon’s phrase that rights are

‘practically separable’ from partisan political issues and therefore ideologically

‘neutral’.14 Both in the context of domestic rights and in the contest of

international law, the language of rights evokes this special character of rights.

One is bound by them irrespective of domestic political position or cultural

background and economic achievement. This is why they are human and

universal, i.e. reasons that can be accepted with peremptory force by all. The

right to health seems to fail to match any of these features.

III.

A common response to this challenge is to say that all rights concern goals,

but that goals are different in different cases. Goals are about a valuable state

of affairs we set out to achieve. Rights secure access to these states of affairs.

14 Scanlon, ‘Human Rights as a Neutral Concern’ in Scanlon, The Difficulty of Tolerance: Essays in

Political Philosophy (Cambridge: Cambridge University Press, 2003) 113.

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There may be different paths towards the achievement of desired goals. So

securing access to their achievement can take many forms. This explains the

difference between the simple duty not to torture and the complex duties to

provide health care through public policy. The aim of eliminating torture can

be achieved by means of a simple prohibition and the threat of punishment.

But the aim of providing adequate health care (or eliminating poverty in

general as a proximate cause of poor health) requires a very different

approach, one that requires several steps involving both negative and positive

duties. Both cases can be seen as instances of the same type of moral

requirement to alleviate suffering.

This view of rights and duties finds one of its clearest expressions in

the work of the philosopher Peter Singer. Very simply, his guiding idea is that

that those who can help others to live better, must. In ‘Famine, Affluence,

and Morality’ Singer argued that our obligations to the poor regarding aid and

famine were far more extensive than we normally realise. He made the point

by means of a very simple principle of beneficence.15 He stated the principle

as follows:

If it is in our power to prevent something bad from happening,

without thereby sacrificing something of comparable moral

importance, we ought morally to do it. By ‘sacrificing something of

15 Peter Singer, ‘Famine, Affluence and Morality’ 1 Philosophy and Public Affairs (1972) 229-243.

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comparable moral importance’ I mean without causing anything else

comparably bad to happen, or doing something that is wrong in itself,

or failing to promote some moral good, comparable in significance to

the bad thing we can prevent. This principle seems almost as

uncontroversial as the last one.16

Singer uses this simple principle to draw the conclusion that the distance that

separates us from others is not relevant to the existence of a duty. So he

concludes that ‘we cannot discriminate against someone merely because he is

far away from us’.17 This entails that ‘our traditional moral categories are

upset’ in that ‘the traditional distinction between duty and charity cannot be

drawn’.18

Singer does not put this point in terms of a theory of rights. But the

benevolence argument is easily adaptable to a theory supporting all social and

economic rights and indeed all civil and political rights. For in this view rights

against torture and the right to health care would have the same structure,

namely the grounding of requirements to avoid harm and promote the good.

This also seems to be the position of Jennifer Prah Ruger, who argues for a

moral duty to help others achieve health agency as follows: ‘the regulation of

self and society requires not just legal instruments, but also individuals and

16 Singer, ‘Famine’ 231.



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groups with internalized public moral norms – as part of their own internal

value systems – that inform the choices they make for themselves and their

society to ensure capabilities for all people to be healthy’.19

It is evident that stealing and injuring causes harm, so any requirement

to refrain from doing these things promotes the good. The right to health

care can therefore be seen as one manifestation of benevolence. Such an

argument is implicit, I think, in much rhetoric about aid and poverty. The

argument gives a comprehensive account of the distinction between

unconditional duties and other conditional duties, i.e. those subject to

‘progressive realisation’. The difference is in the logic of means and ends.

Some ends are immediately achievable. Others require indirect actions that

will achieve the desired end in a series of intermediate steps. It all depends on

the subject matter in question.

Benevolence is clearly a moral fundamental and Singer touches on a

universal theme of ethical thinking. Nevertheless, the way in which the right

to health is articulated in the international documents and in General

Comment 14 falls radically short of the simple principle of beneficence.

Unlike Singer’s duties that flow directly from benevolence, the duties imposed

by the right to health are not individual duties, but institutional aims. They are

duties owed by governments to pursue general policies of public health or

public health insurance. Furthermore, the right to health care cannot be a

19 Ruger, Health and Social Justice, 127.

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conditional duty according to Singer’s simple principle. Food security requires

complex steps of public policy, but transferring a mobile medical unit to

those who need it does not. Why is it that the right to health requires the

former but not the latter?

Given that the suffering brought about by disease and injury is

immediately and easily alleviated by (expensive and therefore often

unavailable) modern medicine, the condition of ‘progressive realisation’ seems

wrong. The goals set by the principle of beneficence are direct, as Singer

himself insists:

It follows from what I have said earlier that we ought to give money

away, rather than spend it on clothes which we do not need to keep

us warm. To do so is not charitable, or generous. Nor is it the kind of

act which philosophers and theologians have called ‘supererogatory’ –

an act it would be good to do, but not wrong not to do. On the

contrary, we ought to give the money away, and it is wrong not to do

so.20

So it is wrong here and now not to provide the health service that saves and

improves lives. The principle of beneficence thus creates a far more

demanding set of duties than the international instruments on the right to


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health. In fact, the duty seems far too demanding. The duty has no end in

time or limitation in scope. Every time we fail to perform the calculation and

act on it, we commit a wrong. So appreciating art, watching a television

programme or walking the dog can be the sign of moral failure. But should

we not reject this rigorous regime in favour of the practical wisdom of the

international documents? Singer’s consequences seem impossible.

These problems are not new. Bernard Williams has made similar

points against Henry Sidgwick’s utilitarianism, which he thought imposes

‘boundless obligation’21. I think Singer’s principle of benevolence is undone

by the same objection. The comparison between Peter Singer’s principle and

Sidgwick’s utilitarianism is based on the view expressed by Sidgwick that we

should look for a ‘notion of universal Good by comparison and integration of

the goods of all individual – or sentient – existences.’22 Sidgwick also derives

from this premise ‘the maxim of Benevolence in an abstract form’, namely

that ‘each one is morally bound to regard the good of any other individual as

21 Bernard Williams, ‘A Critique of Utilitarianism’ in Smart and Williams, Utilitarianism: For

and Against (Cambridge: Cambridge University Press, 1973) 110. See also Bernard Williams,

‘The Point of View of the Universe: Sidgwick and the Ambitions of Ethics’ in Bernard

Williams, The Sense of the Past: Essays in the History of Philosophy, edited by Myles Burnyeat

(Princeton: Princeton University Press, 2006) 277.

22 Henry Sidgwick, The Methods of Ethics, seventh edition (London: Macmillan, 1930) 382. He

continues as follows; ‘And here again, just as in the former case, by considering the relation

of the integrant parts to the whole and to each other, I obtain the self-evident principle that

the good of any one individual is of no more importance, from the point of view (if I may say

so) of the Universe, that the good of any other … And it is evident to me that as a rational

being I am bound to aim at good generally – so far as it is attainable by my efforts – not

merely at a particular part of it’ (p. 382).

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much as his own, except in so far as he judges it to be less, when impartially

viewed, or less certainly knowable or attainable by him.’23

As Williams notes, the utilitarian principle of universal benevolence

undermines the rules that protect our private sphere from the needs and

demands of others. It turns these attachments and the rules that protect them

into something morally problematic: they get in the way of the good. Such

personal commitments contribute to one’s practical or moral identity in such

a way that they are practically impossible and probably immoral for us to even

try to set aside.24 So elevating the principle of benevolence to the highest

point in our ethical code, so to speak, would eliminate our integrity as

persons. It must be a clear moral mistake if it prevents us from taking

responsibility for our own lives. So Williams concludes: ‘But my life, my

action, is quite irreducibly mine, and to require that it is at best a derivative

conclusion that it should be lived form the perspective that happens to be

mine is an extraordinary misunderstanding. Yet it is that idea that is implicitly

contained in the model of the point of view of the universe’.25

IV.

23 Sidgwick, The Methods of Ethics, 382.

24 Williams, ‘The Point of View of the Universe’ 294.

25 Williams, ‘The Point of View of the Universe’ 295.

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Singer’s simple principle is too simple, but other goal-oriented theories of

rights take the institutional context more seriously. One of the most popular

is the interest theory of rights, defended by Joseph Raz and Neil

MacCormick.26 The interest theory places the relevant goals that rights and

duties should achieve against the institutional context of private and public

law. Hessler and Buchanan have outlined an interest based approach to a

right to health.27 For this approach, health is a particular moral interest.

Interests are more complex ideas than harm or utility. We satisfy an interest

when we create a state of affairs that promotes it in the right way. For this

account there may be many relations of right/duty depending on who owed

the duty to whom. Hessler and Buchanan focus on obligations of states to

citizens.28 According to their account it is the state, primarily, that bears the

core duties to respect and protect human rights. Failing that, the burden falls

on other states, or international bodies.

Their argument proceeds from the rejection of prominent views

about the right to health. They reject the view that the right to health is about

26 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) 165-192; Neil

MacCormick, ‘Rights in Legislation’ in P. M. S. Hacker and Joseph Raz (eds.), Law, Morality

and Society: Essays in Honour of H. L. A. Hart (Oxford: Clarendon Press, 1977) 189.

27 Kristen Hessler and Allen Buchanan, ‘Specifying the Content of the Human Right to

Health Care’ in Rosamond Rhodes, Margaret P. Battin and Anita Silvers (eds.), Medicine and

Social Justice: Essays on the Distribution of Health Care (Oxford: Oxford University Press, 2002)

84-96. The essay is now reprinted in Allen Buchanan, Justice and Health Care: Selected Essays

(Oxford: Oxford University Press, 2009) 203.

28 Hessler and Buchanan, 84.

23

‘basic needs’ because the idea of basic needs depends very much on social and

cultural context and because of its implausible implications. For example, it is

obvious that someone suffering from heart disease may need a heart

transplant as a ‘basic need’ in the sense that it would be essential to his or her

survival. Yet, we cannot draw the conclusion that for that reason alone this

person has a right to a heart transplant. There cannot be such a right:

‘[b]ecause donor hearts are scarce, and because a social guarantee of a heart

transplant for everyone as needed would be prohibitively expensive, it would

be impossible to guarantee heart transplants to all who need them to survive

for a significant time’.29 From this Hessler and Buchanan conclude that the

right to health care is not really the right to anything necessary to ensure

anyone’s survival.

Hessler and Buchanan also reject the idea that the right to health care

is supported by the idea of ‘dignity’, which they find entirely open ended, or

by Henry Shue’s attempt to link health to a right to subsistence, which they

find excessively inclusive. If Shue were right, they say, then the scope of basic

rights would be ‘vast indeed’.30 They argue that Shue’s criterion fails to select

what is basic, since everything depends on everything else for its success: ‘The

more extensive the class of basic rights becomes, the less that class can

accurately be described as a set of core rights deserving first priority among all



24

human rights’.31 These arguments highlight the relative indeterminacy of any

goal based rights theory. Given how states of affairs can be evaluated in

different ways or how ‘needs’ and ‘interests’ vary from individual to individual

and culture to culture, it is very difficult to fix a stable content for the right to

health. So they set a challenge for their own ‘interest’ theory.

How do they respond to these difficulties? Their argument proceeds

in two stages. First, they argue that their focus is on health care, not health

itself. Having left behind the general idea of benevolence, Buchanan and

Hessler draw a distinction between the underlying causes of poor health and

the provision of health services.32 They say that health care is a human right

‘because being healthy is a universal interest, common to all people, that

grounds duties in others’.33 The key point here is in selecting an interest of

well-being that is not simply of value to its holder but of paramount

importance to all: ‘[T]he claim that health care is a human right is much

stronger than the claim that health care is a good thing, or that it is desirable

that all people have health care. One does not have a right to all those things

that might increase one’s well-being… Rather, human rights are moral

31 Hessler and Buchana 91.

32‘The right to health care, on our understanding, does not include rights to clean water,

adequate sanitation, or the careful placement of toxic waste. In this sense, the right to health

care picks out a subset of the entitlements that comprise the broader right to health’; Hessler

and Buchanan 86.


25

entitlements…’34 Not everything good is of paramount importance for all. If

we fail to draw the distinction clearly, well-being may end up consuming the

right altogether and result in the same lack of direction and boundlessness

that we found in the argument from benevolence. Even though it would be

morally good to give to those who need our aid, it may not be a claimable

rightSo the interest that grounds the right is to be distinguished from the

unspecified good (or avoidance of harm) that benevolence requires of us.

The second stage, however, recognises that it may not be easy to

identify what is practically entailed by the paramount importance of health.

How do we make concrete the requirements of our interests? They candidly

admit that ‘the fact that the human right to health care is grounded in the

basic human interest in health does not imply anything about the specific

content of the right to health care’.35 They admit its ‘vagueness’. But how can

any content be specified? They argue that there can be no single, universal

standard. Problems in various countries are different. They discuss the

possibility of international institutions monitoring and specifying the content

of the right to health, but they reject it because international bodies will be

too remote from local needs. They conclude that the answer lies in

democratic procedures: ‘We propose that the virtues of democratic

governments suggest that they are better suited than international institutions

in protecting the human rights of their own citizens than are international



26

institutions, and also that they might be able to do so in a way that adequately

accommodates local differences’.36 So in the end, for Hessler and Buchanan

the right to health does not create any determinate duties. It creates a

requirement for a political procedure. It is thus reduced to a matter of

democratic decision making with a view to public policy. It does not have the

separability from politics that other rights have.

Their view seems to me in the end indistinguishable from Singer’s. By

linking human rights with ‘interests of well-being’, they end up supporting a

form of all-consuming requirement of policy of benevolence. They favour the

idea that democratic states should be allowed to determine this for themselves

and that international institutions should have a ‘restricted’ mandate to

supervise them. But nothing they say helps us select which of the many

different levels of health care are applicable or how to perform the required

balancing between competing interests. I believe that the problem they face is

endemic in all instrumental theories of rights. Health care – and indeed other

goods - is a service with almost infinite possibilities and a very compelling

motivation on the part of individuals to use them. Because it is normally

freely bought and sold, any institutional intervention is bound to interfere

with choices people make or are capable of making – either by way of

purchasing the service directly or by way of purchasing insurance in the event

they will need it in the future. The situation is not one where the state has the


27

power to distribute something. Health and health care is already distributed,

according to luck, background conditions, the prevailing distribution of

income and the fluctuation of insurance markets. The commitment of state

resources for the general provision of health care diverts resources from other

public projects to cover costs that would otherwise have been paid for by

individuals. It therefore has strong redistributive effects. So if a state has a

duty – corresponding to a human right– to pay for the provision of health

care to all its citizens up to a certain level, this means that its resources cannot

go into education, sanitation, environmental protection or defence. But why

should medicine, and not education, enjoy this position?

Hessler and Buchanan are happy to accept that their account of the

‘right to health care’ takes them straight to issues of distribution. They say

that their analysis presents the right to health as precisely a distributive issue:

‘Similarly, people have a basic interest in security, and in being able to

express freely their deeply held views. Both interests are components

of overall well-being. Thus, when different human rights conflict, this

view refers us back to consider how the interests that ground the

conflicting rights contribute to human well-being. This provides at

least the possibility of a principled method for resolving such

conflicts’.37

37 Hessler and Buchanan 92.

28

It is hard to see, however, how such a balancing can be principled. Our

balancing is bound to be directed by personal bias or cultural background.

Interests must be related to the desires of their bearers. These desires are

variable form human to human and from culture to culture. They depend on

context. They are also highly moralized. There can be therefore no account of

interests that ignores the ethical background. This creates a further problem

for the universality of rights. If we need an account of interest and their

relative importance before we define the content of human rights, then rights

cannot be universal standards that are separable from culturally and

economically specific aims of policy. If interests vary, so should rights. Yet,

we know that by definition human rights are supposed to be universal

standards that are capable of being adopted by diverse states and individuals.

But this cannot be achieved when we work with the principle of simple

benevolence, or the specification of human rights as interests.

Hessler and Buchanan seem to be aware of this open-endedness of

interests and, by extension, of all instrumentally conceived rights. They find it

appropriate to delegate the specification of rights it to the democratic process.

If so, there can be no right to health care under their argument. Since any

interest in health and health care is to be balanced against all other important

interests and is therefore left to the political process, then there is no room

for an interest in health that is of paramount importance with any categorical

29

or peremptory force. The idea of rights has become a short-cut for

evaluations of well-being.

The argument, finally, fails to deal with the international dimensions

of a right to health. If rights are about the political process of balancing

interest in well-being, any international institutions will seem unsuitable to

that end. Hessler and Buchanan admit that one limitation of their argument is

the fact that they have not dealt with problems of international distributive

justice. They say that ‘… to the extent that the human right to health care has

determinate content, it justifies holding the international community

responsible for providing health care adequate for the health and well-being

of populations whose governments are too poor to do so’.38 But this

statement is not defended, nor does it actually follow from what the authors

had said so far. Why should distributive justice apply across borders?

To summarise: the interest theory fails, first, to specify the content of

rights, because it does not explain which interests of well-being have

paramount importance. It fails, second, to say how the appropriate balancing

of interests is distinct from distributive concerns that are part of the ordinary

political process and fails to show that rights are separable from public policy

decisions. Finally it fails to account for the peremptory force of human rights

because it turns their content to the balancing of goals. The result is an

38 Hessler and Buchanan 94.

30

unfamiliar account of rights, which takes away their most essential moral

features. 39

V.

If rights are not summaries of the good, as the interest theory advocates, what

can they be? The alternative is offered by accounts of rights based on

theories of justice. For such theories, the distribution of benefits and burdens

is only part of the task of justice – and not the most important. A more basic

task is identifying rights and duties that do not concern the ranking of goods

or the distribution benefits and burdens. Instead, performing such a duty of

justice is an end in itself, not a means for the achievement of a particular

distribution. Such is, for example, the prohibition of torture or, at a more

every day level, the prohibition of theft, robbery and assault.

Such prohibitions do not have any distributive ground. They do not

change when the perpetrator is a needy and otherwise virtuous pauper and

the victim a rich and unscrupulous landowner. Such duties respond to wrongs

as actions that coerce or humiliate. Under this framework rights and duties of

39 Entirely similar problems affect, in my view, the interest theory of rights as advocated by

Joseph Raz. See for example his views on the right to health in Joseph Raz, ‘Human Rights in

the Emerging World Order’ 1 Transnational Legal Theory (2010) 31, at 45-47. For a detailed

discussion of the interest theory of rights see Pavlos Eleftheriadis, Legal Rights (Oxford:

Oxford University Press, 2008) and for a response to Raz’s theory of human rights see Pavlos

Eleftheriadis, ‘Human Rights as Legal Rights’ 1 Transnational Legal Theory (2010) 371.

31

justice have an elementary and simple content. They require a kind of attitude

by one agent to another. If we fail to exhibit this attitude in our reasoning and

conduct, then they we have failed to perform our duty to others, irrespective

of any harm caused to them..The idea of fundamental or basic rights is linked

to this elementary moral code.

Basic rights and duties of justice, it goes without saying, do not

exhaust our moral thinking. Such basic requirements are to be supplemented

by other requirements of action that are shaped by personal attachments,

particular moral relationships and political events or institutions. Moreover,

satisfying the simple requirements of basic moral rights and duties, i.e. not to

injure or kill others and the like, sets limits to our actions but does not

provide any concrete guidance as to what ends to adopt, where to spend our

energies or direct our concerns. Choosing ends for ourselves will have to

depend on our circumstances and our identity. There must be a better or

more ethical set of ends, for example, making it an end of our lives to look

after our children or our parents or to maintain valuable friendships. Basic

rights and duties say nothing about that. But at the same time they have

priority over our ends. Whatever our chosen ends, they cannot justify

violating our duties to others. It is not acceptable to become a professional

thief or a politician available for hire, for example, in order to provide for our

children or our parents or our friends.

In this sense respecting a right by complying with a duty of justice is

not meant to lead to a valuable state of affairs or an appropriate allocation of

32

burdens and benefits. It is a prior requirement which itself is a kind of

valuable state of affairs. The value is strictly ethical, not material: it lies in the

fact that one recognises the equal moral status of all others. Such view of

means and ends is inspired by Kant’s moral philosophy but it has now taken a

life of their own in the work of Rawls, Scanlon and many others. For these

philosophers the distinction between rights and goals is categorical: the

content of rights is not determined by the relative strength of goods or values

assessed next to each other. Respecting a right is about something different

from pursuing a valuable goal or set of valuable goals.40

The best known defence of a justice-based view in the field of global

health is in my view that offered by Thomas Pogge. Pogge explicitly rejects

the approach by Singer, which he calls a ‘recipient-oriented approach’ and sets

out to discuss health from the point of view of justice seen as a whole. He

offers a sophisticated argument for ‘basic justice’ which advocates a minimal

view of justice according to which we deploy a suitably thin conception of

means to human flourishing, which just social institutions must secure for all.

Pogge assumes a distinction between basic and non-basic requirements of

justice.

Basic justice for Pogge requires the distribution of a minimally

adequate share of all basic goods:

40 See T. M. Scanlon, ‘Adjusting Rights and Balancing Values’ 72 Fordham Law Review

(2004) 1477.

33

[Besides autonomy, other] more elementary basic goods are important

for both the ethical and the personal value of human life. Among

these are physical integrity, subsistence supplies (of food and drink,

clothing, shelter, and basic health care), freedom of movement and

action, as well as basic education, and economic participation. All of

these basic goods should be recognized as the objects of human rights

– but only up to certain quantitative, qualitative and probabilistic

limits: what human beings truly need is secure access to a minimally

adequate share of all of these goods.41

This view is complex and sophisticated. I will not discuss all its aspects, but

only the way in which it grounds the idea of human rights as a basic

requirement of justice.

For Pogge human rights are rights to some service or conduct as

follows: ‘...the postulate of a human right to X is tantamount to the demand

that, insofar as reasonably possible, any coercive social institutions be so

designed that all human beings affected by them have secure access to X’.42

He thus distinguishes between causing poverty, which is a violation of a duty

of justice, and merely failing to reduce it, which is not.43 Pogge’s account of

deprivation and destitution is different from the ordinary definition of

41 Thomas W. Pogge, ‘Human Flourishing and Universal Justice’ in Pogge, World Poverty and

Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002) 49.

42 Pogge, World Poverty and Human Rights 46.


34

poverty, which is relative to income differentials. It is not a relative concept

so it has no distributive element in its justification. Grounding rights on an

absolute so to speak level of deprivation and destitution distinguishes Pogge’s

views from Hessler and Buchanan, because the content of rights is not given

by a distributive argument. At the stage of specifying the content of rights and

duties of justice, no distributive judgment is required. The content is given by

an account of basic needs.

Pogge’s argument then simply asks who is acting in the institutional-

design arena in such a way as to cause unacceptable injury to others.

‘Responsibility for a person’s human rights falls on all and only those who

participate with this person in the same social system. It is their responsibility,

collectively, to structure this system so that all its participants have secure

access to the objects of their human rights’.44 His argument relies on the same

structure of tort or criminal law duties. We act when we set up or participate

in the maintenance of institutions and collective bodies that are certain to

injure others. So his argument on poverty highlights the individual and

personal responsibility we all share in supporting collective institutions that

cause oppression.We are responsible for world deprivation if we are involved

in causing it. We are causally involved in deprivation, if the institutions we

promote at home have a hand in causing or maintaining the present global

inequality of wealth. And our causal involvement is a violation of human

44 Pogge, World Poverty and Human Rihgts 66.

35

rights if our involvement contributes to the fact that the coercive institutions

of foreign countries fail to ‘satisfy at least the universal core criterion of basic

justice by fulfilling, insofar as reasonably possible, the human rights of the

persons whose conduct they regulate’.45 He writes that we should conceive of

human rights primarily as claims on coercive social institutions and

secondarily as claims against those who uphold such institutions’.46

This resetting of the stage for human rights seems to me absolutely

right. It focuses on the relational aspect of basic rights and duties. It matters

how we treat others. If we cause them hardship and injury, we are morally

culpable. If the hardship and injury is the result of luck, our responsibility is

different. This distinction has important consequences. It explains why we

feel that the health disasters of the Developing World need not be our

responsibility. We need to know more about the facts on the ground. And

this is Pogge’s unique contribution. Even when we draw this important

distinction we can see that even then we are responsible for much of this

tragedy. We are participants in and often ideological supporters of

international institutional framework which results in hardship and injury.

International institutions of commerce, finance and law connect the actions

of various peoples and populations with clear and predictable causal effects

on distant populations. He therefore concludes that: ‘The normative force of

others’ human rights for me is that I must not help uphold and impose upon



36

them coercive social institutions under which they do not have secure access

to the objects of their human rights’.47 Our responsibility to the victims of

these international institutions and laws is relational.

This conception of human rights does not depend on achievement of

good results or the ranking of interests, but on the idea of depriving others of

a minimum of basic needs. Is this a better way to specify the right to health

than the instrumental theories? In my view it runs into a related difficulty.

How are we to determine basic needs?

Pogge’s account seeks to distinguish needs and interests. He assumes

that our needs can have an objective and therefore universally acceptable

content. He says that they refer to elementary basic goods that are ‘important

for both the ethical and the personal value of human life’ and in that sense are

prior to cultural or ethical contexts. He includes ‘physical integrity,

subsistence supplies, freedom of movement and action, basic education and

economic participation’.48

Rights are not supposed to give everyone access to these goods and

this is not the point of the reference to them. A definition of rights that

required the satisfaction of a list of needs such as this one would be obviously

false, for the reasons identified above by Hessler and Buchanan: one does not

have a right to heart surgery merely because it would save his life. A homeless

man does not have a right to my house, purely because he needs one or needs



37

‘subsistence supplies and freedom of movement and action’. Such basic needs

are, for Pogge, ‘objects of human rights – but only up to certain quantitative,

qualitative, and probabilistic limits: what human beings truly need is secure

access to a minimally adequate share of all of these goods’.49 So the homeless

man does not have a right to my house, but a right to a secure access to ‘a

minimally adequate share of housing’. Have we avoided the subjectivity and

cultural specificity of interests?

Everything now turns to how we define a) ‘secure’ access to and b) a

‘minimally adequate’ share and how we combine the two together. As I read

these ideas seem to me distributive in essence. What is ‘secure’ access to a

good, how much risk does it rule out? What is a ‘minimally adequate’ share?

And how are they to be combined in the phrase ‘secure access to a minimally

adequate share’? A great deal depends on culturally specific judgments of

feasibility and availability. In modern Britain, for example, any homeless man

has the opportunity for applying for a job as a banker or lawyer as they are

advertised in the relevant professional press, assuming he can acquire the

appropriate education and skills. It is not an impossible dream. The

appropriate secondary and tertiary education is, in principle, available to him

through state funded institutions and through the mechanism of maintenance

grants, housing benefit and student loans – which are available both to the

young and to ‘mature’ students on a full or part time basis. Does our


38

presently homeless man have access to the benefits of being a banker or lawyer

or does he have a ‘minimally adequate share of the relevant income’? In a

way, he does. He is not excluded by privilege according to birth or rank or

similar traditional exclusions. His eventual success is conceivable precisely

because of this network of benefit payments. But in another way he clearly

does not because the chances of him getting the job are far too slim. In all

probability he will not be able to clear all the economic and social hurdles to

reach the top. Would partial success be enough? How do we calculate what is

‘secure access’ and what is not?

Pogge’s analysis correctly sets out to defend rights as categorical

reasons of justice in a relevant institutional context. Yet, his argument does

not complete the task of elevating rights beyond ordinary politics. The duties

entailed by rights in Pogge’s argument are defined by ‘basic needs’ which in

turn depend on distributive choices. When we come to determine what is

‘secure access’ or what is ‘a minimally adequate share’ of a good, we must rely

on some assessment of the available or reasonable distribution of benefits and

burdens. What is adequate access and what is an adequate share depends on a

substantive theory of the various goods at the disposal of the various parties

and on some kind of ranking between them. Such a theory cannot help us

outline an account of rights that goes beyond distributive justice. We face the

same problems we encountered in the discussion of the interest theory.

VI.

39

I now wish to return to the puzzle with which I started this discussion,

because it remains undisturbed in the background. Here is where we still are.

We know that human vulnerability makes health essential to any view of

human flourishing. Our moral intuitions call for some special treatment of

health care as a response to a common condition of vulnerability. On the

other hand we know that health care, like food and education, can be bought

and sold and its eventual distribution may properly be a matter of unintended

consequences of personal choice, investment or risk-taking. It is a service like

all others. If we follow the human rights canon and insist on the reality of a

human right to health, we take an unrealistically rigid view of duties of health

care. The current inequality of health care in the world will be looked at as a

massive human rights violation. If, on the other hand we offer an entirely

open-ended account of the right to health giving great leeway to states and

corporations, then we risk weakening the idea of rights to breaking point. For

if the health disasters we observe in the world are not a violation to a right to

health, then what is? We shall need to explain how any right may fail to have

the categorical and peremptory nature of the right to free speech or the right

against torture. This is then our puzzle. We both want to assert and deny the

right to health. If rights have a categorical and peremptory role in moral

reasoning, then there cannot be a right to health. But if there is no right to

health, then the moral urgency of this aspect of human vulnerability is

40

ignored. We need to choose between what we know about health and what

we know about rights.

We reviewed three prominent theories. We rejected, first, Peter

Singer’s position because it was too simple. It started from the universal

intuition that we have duties to aid those who suffer. But the theory looked at

interpersonal relations only and reduced the problem of justice to a direct

personal duty of beneficence. This view because ignored personal attachment

and institutional structures and made the resulting duties inexplicably strong.

In the end it imposed unrealistic requirements, far beyond what the

international human rights canon currently requires. It made those documents

look hypocritical and false.

The interest theory of rights, by contrast, started from a different end.

It took into account the institutional and personal context, but it was also

unable of resolving the puzzle. We saw that Hessler and Buchanan chose the

option of modifying our standard account of rights in order to portray rights

as policy goals with variable content. They chose to define the right to health

as a very weak imperative to resolve the various problems of distribution of

health care by means of democratic politics. But since no issue of policy

should escape democratic politics, then all valuable goals can be taken to be

‘rights’ and, conversely, no ‘rights’ can be constitutionally or morally

fundamental. This means that no particular duties follow from such an

account of the right to health. The right is empty, waiting to be filled by the

democratic process. For this view the authority of any right to health does not

41

follow from its subject matter (like the rights against torture or religious

discrimination) but from the process of democratic institutions. The resulting

particular duties flow from democracy, not from a duty to aid others. The

only advantage of this view was that it reflected closely the official

documents. The idea that the right to health is to be ‘progressively achieved’

fits well with an instrumental and procedural account which looks to

governments and legislatures for the required vindication. Nevertheless, we

must reject this view of rights. It goes too far in reforming our standard

expectations. What Hessler and Buchanan talk about are not rights at all.

They are policy goals.

Thomas Pogge’s answer located the problem within an institutional

context in law and politics and distinguished between a right to health care

that results in claimable duties and other dimensions of health policy that do

not. Pogge achieved this by introducing a distinction between basic justice

and distributive justice and then by seeking to outline a how basic justice

concerns ‘basic needs’. But we noticed above that this answer, was itself open

to distributive calculations. His argument ended up taking a similar position

to the interest theory on the question of the specification of rights and duties.

His argument defined the object of rights as fair access to the satisfaction of

basic needs and thus stretched the meaning of rights to all kinds of

requirements and imperative to promote a distributive aim. The goal that

rights sought to achieve was made more determinate, but its content

remained elusive. If rights do depend on distributive calculations, they cannot

42

be peremptory or categorical. The nature of distributive questions rules this

out. They depend on culturally specific or subjective choices, best left to

political systems or to individuals themselves.

I criticised these views because they did not effectively deal with our

puzzle. Yet, all of them seem powerful in different ways. I would like now to

offer a new analysis that combines crucial elements from all three theories.

Singer was right to focus on interpersonal moral relations. Hessler and

Buchanan were right to focus on wider issues of health policy and democratic

process. And Pogge was right to distinguish between basic rights and

principles of distributive justice. I think that we can dispel the puzzle if we

accept these points but apply them to three different moral domains.

VII.

We must begin at the personal domain, which is the starting point for any

duties to aid. As Singer reminds us, we are always bound by moral duties to

others. We ought to act in ways that respect other human beings in whatever

context we encounter them. Singer is therefore correct to link private and

public morality.

Nevertheless, duties to others also manifest themselves in the public

sphere. They are enforceable, for example, through public institutions such as

courts. This is obviously done through private and criminal law, which outline

clear ways in which any wrongful personal interaction between individuals is

43

to be remedied. Behind the complex legal structures lie simple codes of

conduct and a universal understanding of wrongness. Every state in the world

and practically every culture has rules about violence and deceit: we call it

theft, fraud, assault, injury, rape and murder and we know it is wrong when

we see it. What is common in all such codes of conduct is a core moral

attitude to wrongness. We do not need to agree on what constitutes harm to

see that violently coercing someone is wrong. If violent or deceitful conduct

were met with permissiveness or impunity, then our societies would become

places of constant humiliation for the weak and unlucky.50 No society chooses

such a life for its members. All societies restrain violence and exploitation.

The moral principles underpinning private and criminal law outline a

basic code of conduct, a grid of moral rights and duties so to speak, owed by

everyone to everyone, irrespective of nationality or location and irrespective

of status or background. When faced with an accusation of murder or theft, it

makes no difference that your victim is a foreigner or indeed a fellow criminal

or that your intentions were altruistic. The action is wrong in itself.

There are strong connections between such personal moral

considerations and the domain of legal structures but there are also

differences. One obvious difference between personal codes of morality and

legal structures is how reluctant the latter are to recognise legally enforceable

50 See for example the analysis offered by Onora O’Neill, Faces of Hunger: An Essay on Poverty,

Justice and Development (London: Allen & Unwin, 1986) pp. 97-143. See also Onora O’Neill,

Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge

University Press, 1996) 154-183.

44

duties to aid or to rescue. Benevolence has little place in law. An official is

not to resort to his or her own sense of duty of benevolence. They are instead

to apply the law as it is, impersonally and without bias. Even a more restricted

duty, a duty to rescue when it causes no risk or loss to yourself, may be

recognised in criminal law but still not in civil law, i.e. contract and tort.51

Differences like this make many people think that private morality and law

are two entirely different domains. Rights and duties of personal conduct are

then seen as too remote from the formal requirements of civil and criminal

justice. But this view is in my view mistaken. The mistake is at the heart of the

problem we are discussing. There is a link, but the link is not between

personal codes and private law, but between personal codes and public law.

Private law is not the mirror image of a code of conduct for private

actions. Private law is a public set of institutions whereby private relations can

be met with remedies through a complex scheme of civil justice. Criminal law

does the same through criminal justice. In both legal domains what is

paramount and distinct is the jurisdiction of a court in determining legal

relations in a conclusive way on the basis of public standards available to all.

Without jurisdiction to impose remedies and allocate losses and gains, there

cannot be any legal order. This kind of institutionally grounded jurisdiction is

entirely absent from a moral code of conduct. Morality has no remedies and

51 See for example Ernest J. Weinrib, ‘The Case for a Duty to Rescue’ 90 Yale Law Journal

(1980) 247, Arthur Ripstein, ‘Three Duties to Rescue: Moral, Civil and Criminal’ 19 Law and

Philosophy (2000) 751-779.

45

no judges. The move from the simple code of private conduct to private and

criminal law requires the setting up of appropriate institutions of law and

justice and, in the end, government itself. Once these institutions are set up,

they are to operate according to procedures of publicity, openness and due

process. This makes their task different to that of determining moral blame.

Officials of the system are not to act according a code of moral conduct, but

according to public reasons, suitably deliberated and publicised.

The classical philosophers speak of this as the ‘civil condition’ and

link it with the ideal of a social contract that meets with the approval of,

potentially, all. Philosophers such as Kant, Rawls and Waldron argue that

there is a natural duty of justice, owed to all fellow human beings, to act in

such a way as to set up, or support and maintain legitimate public institutions

of law and government.52 Here is then the link with personal codes of

conduct. The natural duty of justice sits alongside other natural or basic duties

we owe to others. This is an inter-personal duty and when properly

discharged it gives t rise to a new domain of social action, the political

domain. The natural duty of justice requires that the structures of law and

government have a public component and a system of jurisdiction. So the

52 Kant, Metaphysics of Morals, 6:306, in Immanuel Kant, Practical Philosophy, trans. and edited by

Mary J. Gregor (Cambridge: Cambridge University Press, 1996) p. 450, John Rawls, A Theory

of Justice, revised edition (Oxford: Oxford University Press, 1999) 99 (the text is identical to

the 1971 edition at p. 115), Jeremy Waldron, ‘Special Ties and Natural Duties’ 22 Philosophy

and Public Affairs (1993) 3.

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duties of benevolence that Singer speaks of are part of the same argument

that leads to the legitimacy of a public system of institutions.

What is the content of the duty to set up and support just institutions?

Public institutions cannot rely on personal standards. They need to rely on

general and abstract principles that are suitable for elaboration by adjudicating

institutions. When we design institutions we cannot ask each individual what

they consider it to be the right action or the right way to live. Our judges and

officials are not to rely on their own applied ethics. Political and legal

institutions need to find adequate formulations that we can all debate, agree

on or disagree with, and ultimately apply. So in designing public institutions

and outlining public standards of conduct we give them a new formality.

Institutions need to work with general rules and principles, because only

general rules and principles can be suitably public. So in the end we must

evaluate institutions as generalisations, in abstraction from the particular

persons that happen to occupy them or the record of their decisions.

We have thus arrived at some important distinctions between

personal duties of conduct and public duties enforceable through civil and

criminal justice. The distinction is key in understanding the idea of a basic

right to health. We are clearly drawn to the idea that helping others is a

relevant consideration in personal relations. We cannot live a moral life while

ignoring the vulnerability of other human beings, simply because we happen

to be luckier than they. So we have both moral duties not to injury or exploit

them and moral duties to come to their aid, when we can do so without risk

47

to ourselves. There are all sorts of things we should not do to others and

there are all sorts of vulnerabilities, physical, emotional or economic that we

are tempted but morally required not to exploit. These forms of imposition

and oppression are all wrong, according to simple principles of conduct. They

are wrong because they are humiliating.53 But it does not follow that exactly

the same moral duties can be translated to legal duties, properly enforced by a

system of jurisdiction. Some judgments that we are expected to make as

moral agents, for example about value or culture, may not be possible to

share with others. They cannot have the required formality. The tests of

acceptability are different. This explains why Singer’s principle of benevolence

cannot fit any institutional structure. Benevolence cannot become a publically

acceptable or enforceable criterion. Singer’s account cannot explain why

officials are expected to leave their benevolence behind when they act in the

name of the whole political community.

Benevolence, however, is not therefore excluded from the law. But it

now works in different ways. It finds expression in ways that can be public

and intelligible by all. In practice this means that benevolence works through

public, not private law. The setting up of a civil condition changes the mutual

relations between those who are its members. Without the civil condition

their relations are informal. But from now we are all co-creators of political

53 For some illuminating reflections on humiliation and poverty see Avishai Margalit, The

Decent Society, trans. by Naomi Goldblum (Cambridge, Mass.: Harvard University Press, 1996)

225-231. Onora O’Neill puts the point as a principle rejecting ‘injury’. See O’Neill, Between

Justice and Virtue, pp. 164-183.

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institutions and of a system of jurisdiction. This makes us jointly responsible

or what happens to all of us. If we are fellow citizens, then we are responsible

for the benefits and burdens that result from our mutual co-operation. This is

a special political responsibility. To put it another way, the creation of public

institutions makes it possible for us to influence – and perhaps radically so-

the lives of our fellow human beings. This creates a new moral responsibility

for the results of our association. Rawls has called this the problem of social

justice and argued that it is here that distributive justice become important. A

just civil condition must consider itself responsible for the distribution of

benefits and burdens among its members. And this must include health and

health care.

Pogge’s argument about the moral responsibility of anyone

supporting – directly or indirectly – domestic or international political

institutions is here at its most effective. He observes that institutions of public

and international law are a proximate cause of global inequalities in wealth

and health care. The causal link with our actions exists both in the domestic

case (obviously so) but also when the potential victims of these oppressive

inequalities happen to live very far away from us. If our collective institutions

are certain to bring about some partern of distribution that entrenches

structues of humiliation and oppression, then we are implicated in the

injustices it creates.54. There is a duty, therefore, literally to stop doing it, to

54 For some similar arguments see Elizabeth S. Anderson, ‘What Is the Point of Equality?’

109 Ethics (1999) 287-337.

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stop acting in the way that we have. If we are joint creators of an institutional

scheme, we are responsible for its expected effects. It follows that we have

duty to direct its effects appropriately.

How can we do that? We cannot determine who will or will not be ill.

But we can determine the pattern of distribution of health care. We must do

so by means of a public system of distribution of health care in the domestic

case. In a society of autonomous but vulnerable human beings this must be

one of the natural duties of justice, since without it we are all exposed to

intolerable inequalities between the lucky and the unlucky. Systems of health

care ensure not simply that we look after the needy but also that all members

of our political society can take our place in a society of equals. The key is not

suffering as such, but the risk of humiliation and exploitation, which would

destroy the ideal of equal citizenship. Conceived in this way, the basic rights

to health care are not private law rights to aid or assistance against other

persons, but public rights to have a system of health care that is available to

all, instituted by our collective decision-making.

What could the content of a public right to a health care system be?

Any institutional protection of equal liberty and equal citizenship has to take

into account the fact of continuous human vulnerability. It can do so without

fixing in any stable way the permanent elements of ‘basic need’. Instead, the

key idea is the equal liberty of persons conceived as citizens. If we are to live

as equal members in a political community then our institutions need to

institute processes by which we are protected from the risk of suffering and

50

vulnerability that would make it impossible for us to live as equal members.

Given that we know that some of us will be unlucky and needy because of ill

health at some point in their lives, we must make sure that we institute some

common system of protection.

Health is an area that presents a dangerous asymmetry. Some of us

will be extremely vulnerable because of ill health. Others will be able to

routinely rescue us from this helplessness. Their power derives from the skills

they possess or the drugs they can provide or the equipment they control.

This asymmetry can lead to awful exploitation and oppression. Here lies, I

believe, the special moral importance of health and health care. We do not

need to define standards for the decent provision of medical care very

accurately in the context of constitutional law or general moral thinking. They

will depend on each society’s particular economic outlook, its patterns of

inequality and its practices of care. But the content of the principles is defined

by a concern to protect everyone from domination and humiliation due to

our common vulnerability. Health duties are therefore relational and not

absolute. Their guiding idea is equal citizenship not equal distribution of

goods and burdens.

If we define the right to health careas a public political right in this

way, we have vindicated our first intuition, that health care must be the

subject of a basic or natural duty of justice. We can thus confirm the moral

content of some of the existing documents of the international human rights

canon. We can distinguish between the most essential obligations of health

51

care of the kind outlined by General Comment 14, which distinguishes

explicitly between ‘core’ and other obligations.55 Core obligations include

access to essential drugs, water and sanitation and the setting up of a national

public health strategy, which must exhibit care for all. These are the things

whose lack causes not only suffering and pain but also humiliation and

exploitation. This is why such matters are moral fundamentals. Other matters

could perhaps be left to ‘progressive realisation’ according to available

resources.

The content of the right to health is thus mostly one of public law. It

is a right against our political society to respect our equal citizenship given our

vulnerabilities. The duty is to set up some system that protects us. Some such

view is very carefully articulated and defended by Paul Hunt and Gunilla

Backmann, who argue for an effective health system as a ‘core institution’ on

a par with a ‘fair justice system and or democratic political system’.56 The

55 General comment 14 includes a provision for ‘core obligations’ which State parties must

satisfy, including ‘the right of access to health facilities, goods and services on a non-

discriminatory basis, especially for vulnerable or marginalized groups, access to basic shelter,

housing and sanitation, an adequate supply of safe and potable water, essential drugs, as from

time to time defined under the WHO Action Programme on Essential Drugs, the equitable

distribution of all health facilities, goods and services and implementing a national public

health strategy and plan of action, on the basis of epidemiological evidence, addressing the

health concerns of the whole population. This list leaves out important components of

modern health care, such as all chronic care, rehabilitative care, reconstructive care (including

transplants), cosmetic surgery and psychological services.

56 Paul Hunt and Gunilla Backman, ‘Health Systems and the Right to the Highest Attainable

Standard of Health’ in Andrew Clapham and Mary Robinson, Realising the Human Right to

Health (Zurich: Rüffer and Rub, 2009) 40-59, at 41. See also Gunilla Backman, Paul Hunt,

http://www.ruefferundrub.ch/

52

details need to be filled in, of course, but the general direction of the

argument is clear. The distinction we draw between two levels of health care,

between a ‘core’ and a ‘progressively realised set of goals’ must ultimately be

based between claimable duties and duties arising out of government policy.

It follows also that what goes beyond these core obligations of public

law must be open to the distributive choices that are, in principle, open to the

political process. Such issues are not constitutional essentials and need not

figure in a list of basic or human rights. Their failure does not indicate

manifest wrongness. We may thus take most of the standards and principles

outlined by the international documents on the right to health as not strictly

speaking manifestations of a basic right to health, but of the general political

imperative to pursue just and fair public policy. We accept, thus, that health

care is a service that is open to distributive choices and contingent events just

like any other service. It is open to the legislature to choose ways of regulating

this distribution. It can choose to do that by means of legally claimable duties

that are instituted through legislation and enjoy their legitimacy because of the

democratic process, not because of their content.

These may well be called ‘institutional’ rights to health care, for

example any rights arising in the United Kingdom, most recently, out of the

National Health Service Act 2006. But any resulting inequality in these

services – as a result, for example, of private insurance availability - will not

Rajat Khosla et al. ‘Health Systems and the Right to Health: an Assessment of 194 Countries’

The Lancet: 2008; 372: 2047-85.

53

be a violation of a right to health. Health care is important, but it is also

another economic activity. So our second intuition is also to be vindicated.

Not everything about health is reducible to a right to health. The puzzle is

resolved once we distinguish between basic moral and constitutional rights

with relational content (on the basis of equal liberty and citizenship) and

ordinary institutional or legislative rights with distributive content (on the

basis of democratic decision-making).

VIII.

I believe that these distinctions have resolved the puzzle of the right to

health. There are three different domains where the assertion of a right to

health takes three different meanings. There is a basic moral right to health

care. This right corresponds, first, to a moral and indeterminate and

subjective personal duty of benevolence that ought to guide our personal

relations and choices. These are strictly personal rights and duties in a purely

moral domain.

The second domain corresponds to legally enforceable and morally

claimable institutional right in law. This duty requires the setting up and

supporting a system of health care so as to protect everyone from becoming a

second class citizen through poor luck. The duty requires some public system

of care or insurance. We may call this the political domain, because the duty is

a manifestation of the special responsibility of political authority towards all

54

persons under its jurisdiction. This duty may also be seen as a ‘constitutional

fundamental’, a principle on which the legitimacy of all political power ought

to depend on. The political duty to provide a system of health care is an

expression of the political duty to protect the equal liberty and equal

citizenship of autonomous but vulnerable persons. The difference between

the moral and the political domain is that political duties bind persons only in

their capacity as political officials, e.g. as civil servants, legislators or judges.

They derive from morality, but they apply selectively in political contexts.

Finally, there is a third domain, which we may call international,

which is political in a different sense. Duties here concern the relations

between different political societies. International duties bind persons as

political officials whenever they engage with foreign states, international

organisations or foreign nationals. The international moral human right to

health binds us whenever we act in this official, i.e. political, capacity. It is

obvious that officials cannot have an obligation to compassion in exactly the

same way as persons who are brought into contact with suffering and that

officials do not have the same obligation to construct a health care system in

every part of the world. They owe such a duty only to citizens and therefore

have the obligation only within their own jurisdiction.

But then what international duties do they have? Here we face the

biggest challenges. Thomas Pogge has argued that international institutions

have the same responsibility as domestic political institutions in preventing the

failure to satisfy basic needs. Our official action is complicit in the

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construction of international institutions that entail suffering and inequality.

Pogge’s argument is thus based on a private law construction: if you cause

harm, you must redress it. So it does not actually rely on a direct analogy

between the international right to health and the domestic political right to

enjoy a health care system. Pogge’s argument assumes some kind of

international law of tortuous action, the wrongfulness of which is manifest. It

consists in the active undermining of the institutions and the well-being of

developing nations for personal profit.

In my view Pogge’s argument is strengthened by the distinctions I

draw here. Nevertheless, these issue raise new and difficult questions about

global justice. I will not be able to say anything about this problem here. I

have argued that it is a distinct problem from the general account of a right to

health care. The questions posed by the international domain are well known

and persistent. All that my argument seeks to show is that once we distinguish

between the moral, the political and the international domains, we dissolve

the puzzles of the right to health. We can see, for example, that the duty

operates in different way on persons when they deliberate as individual agents

and when they deliberate as political officials or actors. This common sense

distinction would be impossible to sustain under a single idea of health duty

that would bind all persons unconditionally (which is proposed by Singer and

others). The argument from universal benevolence cannot explain the distinct

role of institutions and the need for publically ascertainable standards in the

domestic and the international contexts.

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My task here was to address the puzzle of the right to health care. I

have argued that the puzzle is resolved once we abandon distributive or

instrumental ways of fixing the content of the right to health and concentrate

on a different moral content that derives from common understanding of

coercion, injury and humiliation. If we abandon the instrumental theories and

endorse what I called a justice-based view concentrating on public dimensions

of coercion, deception and inequality of status, we can see that there are basic

rights that concern health and health care. Fixing their precise content

requires, of course, judgment and sensitivity to the social and cultural context

of each particular place but it does not require balancing. To avoid being

puzzled by the right to health we must keep basic rights and distributive

justice clearly distinct.

A Right to Health Care

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Transcript of A Right to Health Care