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An opinion piece in the Los Angeles Times makes the argument that public restrooms are a “human right”: “However, like food, water and shelter, access to safe sanitation is a fundamental human right.” 

That is interesting language. I agree that access to restrooms is extraordinarily useful in a society that requires a great deal of constant movement, often far from one’s home or place of work. I agree that developing and maintaining such facilities makes good policy sense at the level of government, in that it creates a broadly useful public good, like roads and fire departments. The economic interest in merely maintaining bathrooms at private expense seems limited.

(There is of course the fact that the government seems incapable of even maintaining the sidewalks in a safe manner. And the public transportation system has become a mobile hotel for those otherwise “unhoused.” Creating small, enclosed structures would likely merely create a new avenue for danger.)

My question concerns not the strength of the policy argument, but the phrasing of such a policy as a right? To prove the point, the writer cites to a UN document which calls sanitation a “right”. It is a public good. It is good for human beings. It makes life safer and more pleasant. But how is it a “right?”

The word “right” seems to mean a policy position which we will assert on the basis of our rationality which we think only the ignorant, bigoted, or otherwise vile would contest. While it uses the language of “rights” such as a “life, liberty, and the pursuit of happiness”, it refers to something far different than that asserted the signers of the declaration of independence. A review of the thought of the founders, particularly as it relates to English law and political theory can be found here.

A further consider behind the limitations on government can be found in Lutheran political and legal theory which imposed limits on the authority of the state over the person:

“Finally, the Lutheran jurists found both in Scripture and in conscience a general right of resistance to tyrannical rule. Conscience was the seat of both civil obedience and civil disobedience. When positive law contradicts natural law, the conscientious Lutheran Christian is torn between his duty to obey the divinely ordained “powers that be” and his duty to obey his own divinely ordained sense of justice. A contemporary.” Harold J. Berman. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Kindle Locations 1595-1597). Kindle Edition.

This understanding of right is a limitation of the government over the individual. It also derives from understanding of God imposing a pre-political order.

The use of the word “right” in the UN Declaration on “rights” and the “right” to a public restroom is a complete inversion of the concept of “right.” First, rather than a freedom from government control, it is a power to make a demand upon the public to receive something with direct cost to me. I have a “right” to health care; which means I have a power force someone else to pay my medical bills. The “right” to a restroom is the power to compel others to pay for the construction and maintenance of a facility.

Second, the power does not derive from a pre-political source. Rather it is a matter of positive law: it is a demand made by a constituency which is then enacted as law by a government.

Third, at the stage of this opinion piece, the word “right” actually means a demand which I am making upon you: It is rhetorically structured using the older and quite foreign language of “right” as a means to make disagreement impossible. The older use of “right” by definition is something which cannot be contradicted (it being rooted in nature or nature’s God, at the very least).

In short, this contemporary use of the word “right” is a strategy to make use of the evocation of the older version of “right” while making a demand upon another to provide some good or service.

Note, this does not mean a particular good or service may be appropriately provided at public expense, such traffic signals. But it is far more honest to argue for the public benefit by means of a cost benefit (or other appropriate argument), than to say I have. “right to traffic signals”, or a “right to storm drains,” or any other public good.

(There are other uses of the word “right”. This is not meant to be an exhaustive discussion of the ways in which the word “right” is used in contemporary discourse.)