I have wrestled with trying to understand what a legitimate right is. The 1776 Declaration of Independence famously cites Life, Liberty, and the pursuit of Happiness as among our Creator-given Rights. What others might we acknowledge? Discussion in recent years has focused on rights to health care, housing, food, and a well-paying job. Do such rights exist?
I have just come across a method of analyzing rights devised by a young jurist in the early 20th century named Wesley Hohfeld. He identified four elements that need to be considered.
1) Privilege. A privilege-right exists when you can do something for which you have no duty to do. Some are natural, like breathing or choosing the color to paint your bedroom. Some are conferred, as with the license to drive a car,
2) Claims. You have a claim-right, for instance, to be paid for doing your job.
3) Powers. A power-right is one where a person can alter the privilege or claim of himself or herself, or of another. Sam has no right to trespass on Sally’s property, but Sally has the power to grant Sam the privilege.
4) Immunity. An immunity-right exists for you when another person, or entity, has a power-right to compel you. Free speech is, then, an immunity to the government telling you what you may say.
These four elements are instructive and useful, but interact in a myriad of ways. Analysis of a given question can still be perplexing. Let’s take one that has been in the public dialog in recent years: Is health care a right?
Privilege. A person would seem to have the privilege of eating healthy food, or not; getting sufficient rest, or not; etc.
Claim. Here it gets harder. A person does not have a claim on requiring a doctor to treat him or her. However the Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals that accept Medicare to provide certain care to all.
Power. Apparently Congress had the power to enact EMTALA. Presumably it has the power to enact something like Medicare For All (MFA). It is a mistake, however, to argue for passage of MFA because it is a fundamental right.
Immunity. If MFA were enacted, what immunities could, or should be, granted. Should you be compelled to have an annual check up, take all drugs ordered by a doctor, have your DNA sequenced, pay extra if you fail to maintain a healthy weight?