The last episode of “Seinfeld” ends with the four self-absorbed protagonists imprisoned together indefinitely – l’enfer c’est les autres – for failing to rescue a woman in need. The “duty to rescue” is a controversial subject in worldwide jurisprudence. Generally, common law jurisdictions reject any such notions. Civil law jurisdictions, i.e., Europe and elsewhere, typically have such a duty, sometimes under the civil code, sometimes under the criminal law. Here is an article on the subject for the curious. (Click on the “Download” link at the top of the linked page to see the full text of the article.)
It’s interesting that the Seinfeld episode relies on a Massachusetts law, because it is Massachusetts’s senior senator, Ted Kennedy, who is pushing hardest the idea that healthcare is a “fundamental right.” The tie-in to the duty to rescue is close: not only is healthcare a form of rescue, but the provision of the Quebec Charter of Rights that imposes such a duty states that “Every human being whose life is in peril has a right to assistance….” (So says Wikipedia, anyway.) For, as all lawyers know, there is no such thing as a duty without a correlative right; where there is no right, there is nothing for the rest of us to have a duty not to infringe.
Now Senator Kennedy wants to make healthcare a fundamental right, whatever that is. And that’s my problem with the idea: it doesn’t actually mean anything. What Kennedy wants is for healthcare to be an entitlement, and lacking any real philosophical basis for such an entitlement, he has made one up by ipse dixit, adding healthcare to life, liberty and the pursuit of happiness as things with which all men are endowed by their creator. But Americans don’t pay for each other’s life, liberty and the pursuit of happiness. We merely don’t empower our government to interfere with them. We no not recognize a God-given right to be rescued.
What about healthcare makes it any more “fundamental” than a house, or food? These things are, as any good Marxist will tell you, precisely the “freedoms” that communist states offer: freedom from hunger, from homelessness, and from doctorlessness. Our “freedoms” of speech and political association are, by contrast, “bourgeois” freedoms, self-indulgent luxuries of the rich, taken at the expense of the poor.
So what about food and shelter? The problem with healthcare as a fundamental right is not that it puts us on a slippery slope, but that it necessarily implies that equally essential material goods – the aforementioned food and shelter – are, a fortiori fundamental rights, too. How could they not be? But how much food, and how much shelter, and how much medicine are we entitled to as a “fundamental right”?
The outer edges of life, liberty and the pursuit of happiness are not clearly defined either, but the issues are qualitative, not quantitative. I am not made to surrender the fruits of my labor in proportion to others’ entitlement to liberty. The duty to rescue, the duty of the haves to feed, house, and care for the less fortunate, is a moral obligation, a matter of personal freedom and judgment, a part of the liberty that actually is a fundamental right. It is largesse, and as such it is something the people vote themselves at the greatest peril to democracy itself.