13 August 2003

Adjudicating rights claims

Following the likes of Mary Ann Glendon, Paul Marshall and others, I have in recent years become wary of turning every claim made upon the public realm into a "right." The following is from Philip K. Howard's The Death of Common Sense: How Law Is Suffocating America:

Rights have taken on a new role in America. Whenever there is a perceived injustice, new rights are created to help the victims. These rights are different: While the rights-bearers may see them as "protection," they don't protect so much as provide. These rights are intended as a new, and often invisible, form of subsidy. They are provided at everyone else's expense, but the amount of the check is left blank. . . (p. 117).

Defined this way, rights claims become increasingly difficult for public authorities to adjudicate, primarily because we have come to think of rights as absolute. And if they are absolute, then there is little room for moderating their claims, both on the public space and on each other.

Rights for the disabled are particularly paradoxical, because what benefits a person with one disability may harm someone with another disability. Low drinking fountains and telephones are harder to use for the elderly or those with bad backs. High toilets make transfer easier from a wheelchair, but make bowel movements harder for everyone else, especially the elderly. Curb cuts are more dangerous for the blind, who have more difficulty knowing when they have reached the end of the block. Ramps are essential for wheelchairs but are sometimes slippery and dangerous for the frail. Warning bumps at the edge of a train platform are good for the blind but bad for those in wheelchairs (pp. 151-2).

Does this mean we should throw up our hands and leave the frail and infirm to their own devices? Not at all. It does mean that addressing such claims in terms of rights may not be all that helpful. Treating them precisely as mere claims means that room is left for compromise in the interest of peaceful co-existence among individuals and groups within the body politic.

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