Society and Rights (Part II): Public Good

In my last post, I tried to argue that thinking about individual rights as if they existed in isolating was actually threatening to those very rights. This is one reason, I am suggesting, for taking "society" seriously. You don't have to like my wording. You can argue for state or civil society or some other wording. What it means is the same: there is some kind of collective social organization the operation of which is important. The issue, it seems to me, is not so much "does society have rights?" -- my original discourse -- but the degree to which we take this collectiveness seriously as part of the way in which we think about our society. Asserting individual rights in the absence of their context, I argued, was not a rejection of rights. To the contrary: it was a recognition of the necessarily social (political, legal, economic, cultural, etc.) institutions that were needed to maintain those rights. A failure to access these institutional dynamics, their autonomy, our our need to maintain them (say, an independent judiciary, a legal code, a free press) would end up subverting the very rights we seek to defend. 

I also argued that we needed to be careful with conceptions of the public good. Historically, the term has often been mobilized to maintain the marginalization of already marginalized groups. A key example is efforts to limit the equality of gay and lesbian Canadians (say, with regard to marriage, adoption, spousal benefits, etc.). Using all kinds of different language, we were told that it was not in the public good (it was non-traditional, it would cost too much, it threatened the family -- none of which turned out to be true).  Said differently, discussions of the "public good" should be entered into carefully. 

But, it is still a discussion that we need to have. Why? We need to have this discussion because we need to determine if there is some sort of collective enterprise that is socially or nationally valuable outside of individual rights. I'd suggest that there is. This can include public infrastructure projects (like roads and bridges), matters of national defence and protection (the military, coast guard, search and rescue), health (standards for meat processing, e.g.), emergency situations (floods, power outages, etc.), and a range of others. I suspect my list will not surprise anyone. It is not exhaustive, but the fact that it seems so ordinary is important because it shows us the degree to which we have simply come to accept some conception of the public good as valuable in our lives and good for our society. 

We understand public good policies and activities for a range of reasons. These can be captured under the discourse of social good or fairness or something else but there are a range of rationales for undertaking a public good action. These include: economies of scale (that it is less expensive than having the same actions undertaken by the private sector), emergency preparedness (the subject of a previous post), and natural monopolies. They can be undertaken because there is a general benefit and spin off effects that go beyond the original beneficiaries. I'll give an example to illustrate my point: imagine someone builds a road. Who benefits from that road? Well, the people who drive on it, to be sure, but also the people who now have access to police and emergency services, people for whom fire protection is now possible, people whose relatives can visit, people whose clients can make it to their place of business, people who shop at stores supplied by delivery trucks riding on roads. I'm not done but I'll stop because you can see the point. It is relatively easy to specify the original beneficiary. If I drive on a road, I benefit from that road. But, in most -- I'd argue the vast majority -- of cases, I benefit whether I actually drive on it or not. 

We can make very similar points for things like water purification (if you don't think that is important, think for a minute about those communities that don't have it), snow removal, electricity, communications networks. Said differently, for a range of matters we can identify goods or services that involve much more than the key or first or original beneficiaries. Indeed, in some cases, it might be difficult to disentangle who was the key beneficiary from who is a subsidiary beneficiary. 

This opens up questions that I've addressed in the past about who should pay for these kinds of services. I won't return to that, but you can see that the easy "user pay" argument does not really hold up well here since we cannot really figure out who the users are and who they are not. I've noticed, for example, that many key proponents of individual rights (people who claim to reject the authority of the state and say that taxation is illegitimate and who argue that one should pay only for those things they use, drive on roads). In all of these instances, what we are talking about is a public good. 

We can actually specify the benefits these goods bring. Remember, this is social science so it is not like gravity. I'll likely post on "can you guarantee?"-like questions in the future some time after I've had a chance to put my thoughts in order. The key point I want to make is that benefits accrue broadly. For instance, my property value is enhanced by good roads, schools (about which I have not spoken), water purification, power generation, parks, clear lakes in which to swim, lower crime rates, and a host of other things. My quality of life improves (I am less subject to crime, more likely to enjoy concerts in the park, I can be safer swimming, etc.). I am more likely to have community volunteers. I am more likely to be safe in my home and be protected during a natural disaster or power outage. 

Let's spin this out for a just a minute more: roads let me vacation in different parts of the province, minor sports (for which there is often a fee but who built those facilities?) provided fun and exercise for my children, search and rescue keeps me safe while I am kayaking, public health measures and regulations help prevent me from getting food poisoning, and on down the line. 

I won't go on any more, because you can, I am sure, see this point too: public goods bring all sorts of public benefits. We lose track of these benefits when we too quickly assert "individual rights." Please note this: it is not that individual rights are not important. It is not that they should be relegated to some kind of collectivist gulag. It is that the discourse that pits individual rights against collective actions is misplaced. It prevents us from seeing the interaction between the two and the general benefits that we all enjoy from public good measures. It is good and wise to periodically have discussions about these issues. It would, however, be wrong to begin from a false distinction that pits the one against the other. 

Does Society Have "Rights"?

This is an odd question and one that would have been answered differently in the past. If we were to go back into the not-too-distant past, we would find that important conservative thinkers -- such as George Grant -- argued that it did. They would not have used a different language but they would have used words like "public good" and "nation" in place of rights and society but we would be in the same ballpark. It was precisely for this reason that Canadian governments undertook economic development projects or promoted electrification or better roads. The basic idea was this: society (the nation, the province, the people) had interests that transcended those of individuals. It was these bigger issues (national defence, for instance) that we could think of as a proper -- but not the only -- sphere for government acting for society, or the common good. 

Today, we have run into serious problems with this line of reasoning. Part of it is what Michael Ignatieff called "rights talk" that is: a form of discourse suggesting that if rights can simply be respected and enhanced, all of our political or economic or social problems will be solved. I'll address this contention in a more sustained way in a future post because it has taken on odd forms and so reviewing what we can see as some of the limits of right is worth doing. For now, however, let's content ourselves with a different kind of question: does society have rights? 

At its worst, discussions of "society," what it does, its effects, etc., have become a bit of a caricature. The idea that "society" is responsible for crime or other social problems has been pilloried by neo-liberals and right wing populists to the point that it is difficult to have a conversation about the subject. References to something being "society's fault" are often dripped in sarcasm.  It is a short step from a rejection that there could be social determinants of, say, behaviour, to rejecting the idea that society has interests that should be respected. Under Covid, we have seen some extreme forms of this (a subject I've been trying to address in other posts). Here, the opponents of public health measures have tried to argue that they should have no force and effect because they infringe on individual rights. This argument is constitutionally shaky. It is not a good argument and has very little to recommend it in terms of constitutional law. The key point, however, is something different: we have seen that there is a very small but significant body of people who believe that their rights as individuals must necessarily stand above and nullify collective rights, including provisions for public safety. 

We don't have time to over everything that could be wrong with this subject and I want to approach it from a different direction, anyway. Instead of asking if this is true, what I want to ask is this: do you believe that there is no such thing as the public good? I can almost hear someone say "sure, but public good is best realized through individual rights. Circumventing or limiting individual rights harms the public good." Let's not dismiss that argument because there are merits to it. Due process of law, for instance, is vital to the public good and it is an individual right. Free speech is vital to the public good and it is an individual right. Equality is an individual right and vital to the public good.

I want to make these arguments because I have often worried about the reverse argument: that we need to discriminate against specific people in the public good. Those who are old enough will remember that this was an argument often used to justify discrimination against gays and lesbians. We can't have equality in marriage because it is not in the public good. I've heard people argue against settlements for the victims of residential schools, and humane policies for refugees on very similar grounds. I recall in college a particularly horrible moment where a friend argued that a group of refugees should be deported (regardless of their future life prospects) on a similar ground (it was not in the public good to accept refugees). In each of these instances, breaches of equality, or rights, or simple humane behaviour are justified in the name of the public good. And, have you noticed that in each of these instances, and many others I can think of, the public good is defined in a way that reinforces the inequality of already marginalized groups: Indigenous Peoples, refugees, members of the LGBTQi community. 

It seems to me very important to bear this in mind before we too quickly reject arguments about individual rights. I don't. In previous posts, I've tried to argue for individual rights but also for what I would contend is a correct understanding of individual rights. Individual rights, I have argued, are not licence to do whatever you want. There are limits to them and those limits are reasonable and widely accepted. The key example that is always used is "yelling fire in a crowded building" when there is no fire. In this instance, needlessly endangering the lives of others for one's own amusement is not a right, but (a) a threat to others rights (their life, safety) and (b) a crime (making a false statement that recklessly endangers others' lives). Likewise, an example I've used before is that I cannot use my free speech to spread lies about my neighbour because, say, I don't like her business and want to drive her into bankruptcy. Here again I am treading on her rights and breaking the law. 

Rights are then (a) vital to the health of society (and often a needed protection for marginalized social groups), but (b) not a licence to engage in any behaviour one happens to want.

Where does this leave a discussion of society's rights? In several places. First, I suspect that my discourse is weak and inhibiting my ability to make the points I want to make. If you have suggestions to improve it, I will take them. Second, it leaves us thinking about boundaries and limits. Does a social perspective necessarily harm the rights of others. It clearly can. Those people who tried to turn back gay marriage because they believed it harmed society were clearly saying that we should not respect the equality of certain people. These people will be lesser citizens that do not enjoy the same rights as straight people. But do all limits have that effect? Could some be reasonable and could some even help advance individual rights? 

In a previous post, I tried to make precisely this point. Collective actions -- taken by society through the state -- can become a mechanism to enhance individual rights. In other words, counterposing individual rights against collective action mystifies an important link between the two. Let's take due process of law as an example. It is a good example because due process of law (the right to trial, to know charges against you, to defence, against arbitrary imprisonment, etc.) is rightly widely viewed as fundamental a democratic order based on the rule of law. 

Yet, in this example, you can see that the individual proclaiming their right by themselves won't get very far. In point of fact, we have an entire apparatus of state that is set up to ensure the smooth functioning of due process. We have lawyers and crown attorneys, legal aid, written judgement, independent police forces that are not run by crown attorneys, autonomous judges, the news media, etc. It is all of these social actors -- of this collective action -- that makes due process of law (and likely much more that I have not thought about) a reality. Without it, it could quickly descend into wishful thinking. Don't believe me? It has happened elsewhere. 

I'll leave off on this point and address other issues in subsequent posts. What it means, however, is that we need to protect society's rights (only some of which I have listed above) in order to ensure that individual rights are protected. We need to ensure vibrant social institutions and legal institutions. Individual rights don't ipso facto make for a good society. But, without protecting these elements of our social order, individual rights would remain at best fragile.