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Published online by Cambridge University Press: 08 January 2010
The concept of rights is now so dominant in the language of politics that it is becoming difficult to identify its use with any particular approach to the solution of social problems or to gain a clear picture of its significance, its advantages and its disadvantages as a way of conceptualizing and resolving contentious political issues. None the less there is a perceptible shift towards an emphasis on rights in contemporary politics which many welcome and encourage and others question and even reject, a shift which is matched in jurisprudence by the renewed stress which many theorists place on rights as a basic legal concept despite recurrent problems associated with the concept as a tool for legal analysis and moral justification. Conflicting theories of legal rights are canvassed and this in turn feeds into the debate concerning the reality or significance of non-legal rights, for the process of law reform is often presented as a matter of giving legal embodiment to the rights which various interested categories of people are asserted to possess already.
1 See Rawls, John, A Theory of Justice (Oxford: Oxford University Press, 1972)Google Scholar; Dworkin, R., Taking Rights Seriously (London: Duckworth 1978)Google Scholar; and Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).Google Scholar
2 For a vigorous recommendation of a theory of rights along these lines see Fried, Charles, ‘Right and Wrong’ (Cambridge, Mass.: Harvard University Press, 1978).CrossRefGoogle Scholar
3 This thesis is developed in Campbell, Tom, The Left and Rights (London: Routledge and Kegan Paul, 1982), Ch. 2 and 3.Google Scholar
4 For more extended treatments of the concept of ‘moral rights’ see Campbell, T. D., ‘Rights Without Justice’, Mind 83 (1974), 445–448CrossRefGoogle Scholar, and ‘Humanity Before Justice’, British Journal of Political Science 4 (1974), 1–16Google Scholar; also Young, Robert, ‘Dispensing with Moral Rights’, Political Theory 6 (1978), 63–74CrossRefGoogle Scholar, and Frey, R. G., Interests and Rights (Oxford: Clarendon Press, 1980), Ch. 1.Google Scholar
5 See Feinberg, Joel, ‘The Nature and Value of Rights’, Journal of Value Enquiry 4 (1979), 243–257.CrossRefGoogle Scholar
6 This scheme is based on Hohfeld, Wesley N., Fundamental Legal Conceptions (New Haven: Princeton University Press, 1919).Google Scholar
7 For a clear and straightforward discussion of fundamental law see Smith, J. C., Legal Obligation (Athlone Press, 1978), Ch. 12.Google ScholarPubMed
8 A version of the ‘interest’ theory is expounded in Campbell, Tom, op. cit.Google Scholar, Ch. 5; see also MacCormick, D. N., ‘Rights in Legislation’, in Hacker, P. M. S. and Raz, J. (eds), Law, Morality and Society (Oxford: Clarendon Press, 1977), 189–209.Google Scholar
9 See Hart, H. L. A., ‘Bentham on Legal Rights’, in Simpson, A. W. B. (ed.), Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973), 171–201Google Scholar, and Benn, Stanley I., ‘Human Rights—for Whom and for What?’, in Kamenka, E. and Tay, E. S. (eds), Human Rights (London: Edward Arnold, 1978), 64 ff.Google Scholar
10 See Gewirth, Alan, Reason and Morality (Chicago: University of Chicago Press, 1978)Google Scholar, Ch. 2; Benn, Stanley I., op. cit., 66–68Google Scholar; and Richards, David A. T., ‘Rights and Autonomy’, Ethics 92 (1981), 3–20.Google Scholar
11 Benn, Stanley I., ‘Freedom, Autonomy and the Concept of a Person’, Proceedings of the Aristotelian Society 66 (1976), 109–130, at p. 116.CrossRefGoogle Scholar
12 In Australia at any one time about 18,000 persons are detained in hospitals under the Mental Health Acts which make provision for some form of civil commitment. This represents a rather larger percentage of the population than is the case in the UK but less than the comparable percentage in the USA. In all these jurisdictions considerably more people are compulsorily detained in mental hospitals than are in prison.
13 For the purpose of this discussion I shall not enter directly into the controversy over whether there is such a thing as mental illness. The fact that such a concept is used in the classification of persons for the purpose of different treatment in relation to the deprivation of liberty is sufficient for my purpose. Of course if there is no such thing as mental illness then systems of civil commitment may not be defensible, but since no one doubts that the behaviour which gives rise to the diagnosis of mental illness is often a social problem and a cause of distress to the allegedly ill persons, the denial that such behaviours and distresses are symptoms of illness does not in itself remove the question of what is to be done with those who are at present labelled mentally ill. The answer to such a question may well depend in part on whether there is thought to be an ‘illness’ and hence the relevance of medical treatment to the problem, and the nature of the problem is crucially affected by the fact that it is the mental and emotional and volitional functioning of the individual that are problematic, but a philosophical critique of the idea of ‘mental illness’ cannot in itself remove ‘mental illness’ fom the agenda of social problems. Most of what I say in this paper relates more immediately to mental illness as distinct from mental retardation although many of the general principles involved apply equally to both groups. But see Susan C. Hayes and Robert Hayes, Mental Retardation (Sydney: The Law Book Company, 1982), 6; ‘Mental illness, wherein an individual exhibits pathologically different ways of behaving and coping, for example, withdrawal, depression, fantasy, paranoia (to name but a few widely known examples), is distinctly different from mental retardation’.
14 For a general comparative survey see Curran, W. J. and Harding, T.W., The Law and Mental Health: Harmonizing Objectives (Geneva: World Health Organization, 1978)Google Scholar. For Australian data see O'Sullivan, John, Mental Health and the Law (Sydney: The Law Book Company, 1981).Google Scholar
15 The literature on these topics is by now very extensive. Extended bibliographies are contained in Brooks, Alexander D., Law, Psychiatry and the Mental Health System (Boston: Little Brown, 1974)Google Scholar, but see also Wexler, David B., Mental Health and the Law: Major Issues (New York: Plenum Press, 1981).CrossRefGoogle Scholar
16 On the relation between rights and discretion see Campbell, T. D., ‘Discretionary “Rights”’, in Timms, Noel and Watson, David (eds), Philosophy and Social Work (London: Routledge and Kegan Paul, 1978), 50–77.Google Scholar
17 See Wexler, , op. cit. 157Google Scholar: ‘Whatever the good will unbridged discretion won't do’.
18 Section 26 of the same act permits a member of the police force ‘to remove from any place to a place of safety any person who appears to him to be mentally ill and in need of treatment or control if that member thinks it necessary to do so in the interests of that person or for the protection of other persons, for a period not exceeding three days.
19 The Victoria Mental Health Act 1959, section 42, permits detention for observation on the basis of the opinion of a medical practitioner ‘that a person appears to be mentally ill and that he should be admitted for observation into a psychiatric hospital’, and compulsory admission to a mental hospital for up to six months is permitted on the basis of medical opinion that ‘the patient is mentally ill and requires care or treatment’. Similar criteria are laid down in the New South Wales Mental Health Act, 1958. Only slightly more precision is to be found in the South Australian Mental Health Act 1976–77, section 14 of which requires that a legally qualified medical practitioner should be satisfied
(a) that the person is suffering from a mental illness that requires immediate treatment;
(b) that such treatment can be obtained by admission to and detention in an approved hospital; and
(c) that that person should be admitted as a patient in an approved hospital in the interests of his own health and safety or for the protection of other persons.
20 ‘Mental disorder’ was the term introduced by the Report of the Committee on Mentally Abnormal Offenders (the Butler Committee) (UK, 1975).Google Scholar
21 ‘Mental dysfunction’ is the term used in the Australian Capital Territory Draft Ordinance, section 27, where it is defined as ‘a disturbance or defect to a disabling degree, of perceptual interpretation, comprehension, motivation, emotion, or some other mental function’.
22 See Briscoe, O. V., ‘The Meaning of “Mentally Ill Persons” in the Mental Health Act 1958–65 of New South Wales’, Australian Law Journal 42 (1968), 207Google Scholar. Also, Hoggett, Brenda, Mental Health (London: Sweet & Maxwell, 1976), 43.Google ScholarPubMed
23 Indeed the ‘symptoms’ of such illnesses are as often to do with anti-social behaviour as with psychological malfunctioning; see Kittrie, N. N., The Right to be Different (Baltimore: Johns Hopkins Press), 51Google Scholar. ‘The very symptoms of what we commonly define as mental illness, being primarily behavioural rather than physiological, mark those afflicted by them as socially deviant.’
24 Mental Health Act 1959 (Victoria), section 3. The Mental Health Act 1958 (England and Wales) defines ‘mental disorder’ as ‘mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind’ (section 4). See also Freiberg, Arie ‘Out of Mind, Out of Sight: the Disposition of Mentally Disordered Persons Involved in the Criminal Process’, Monash University Law Review 3 (1976), 134–172, at pp. 135–139.Google Scholar
25 Mental Health Act 1976–77 (South Australia) section 14(1).
26 See Brody, B. A. and Engelhardt, H. Tristram, Mental Illness: Law and Public Policy (Dordrecht: Reidel Publishing Company, 1980), 84CrossRefGoogle Scholar: ‘If, in the criminal law, it is better that ten guilty men go free than that one innocent man suffer, how can we say in the civil commitment area that it is better than fifty-four harmless people be incarcerated than that one dangerous man go free?’
27 See Cocozza, and Steadman, , ‘The Failure of Psychic Predictions of Dangerousness: Clear and Convincing Evidence’, Rutgers Law Review 29 (1976), 1048Google Scholar, and Dershowits, Alan M. ‘Psychiatry in the Legal Process: “A Knife that Cuts Both Ways”’, Judicature 51 (1968), 370–377, at p. 376.Google Scholar
28 It is interesting to note that mental patients and ex-mental patients are less dangerous as a class than non-mental patients; see Ennis, B. J., Prisoners of Psychiatry (New York: Harcourt Brace, 1972), 225Google Scholar. If the dangerousness of mentally ill persons is predictable with a satisfactory degree of probability then committal rules involving the concept of dangerousness pass the test of having the form of an acceptable rule, just as the psychiatric profession's ability to reach a consensus of the specification of mental illness, or its types, according to criteria which could be tested in court in so far as their empirical application is concerned would make ‘mental illness’ a formally acceptable concept within a rights approach to civil commitment. However, this still leaves open the substantive issue of whether the rules employing these concepts are acceptable in terms of their content. In the case of the prediction of dangerousness those defending the rights of the mentally ill could require that where dangerousness can be predicted of members of other groups that these be subjected to the same constraints as the mentally ill dangerous person unless reason can be given for discriminating between mentally ill and mentally healthy dangerous persons. (One such reason might be that the former are treatable whereas the latter are not but if this is accepted then detention on the grounds of dangerousness would have to be confined to those mentally ill dangerous persons who are treatable.)
29 See Ennis, , op. cit. 232.Google Scholar
30 Potas, Ivan, Just Deserts for the Mad (Canberra: Australian Institute of Criminology, 1982), 74Google Scholar. The South Australian Mental Health Act requires intimation to patients and their friends of the rights of appeal (section 16) and requires that appellants before tribunals and Supreme Court be represented (section 39). Seven of the twenty-six recommendations of the Consultative Council of Review of Mental Health Legislation (Victoria) have to do with procedural rights. See also Kittrie, N. N., op. cit. 199–204.Google Scholar
31 See Hare, R. M., ‘Abortion and the Golden Rule’, Philosophy and Public Affairs 4 (1974), 20fGoogle Scholar, and Young, Robert, ‘Dispensing with Moral Rights’, Political Theory 6 (1978), 63–74.CrossRefGoogle Scholar
32 See Wexler, , op. cit.Google Scholar Ch. 2, and the Report of the Consultative Committee on the Review of Mental Health Legislation, para. 7.37: ‘A patient may selectively retain the capacity to exercise a number of his rights, even though his freedom to refuse admission and treatment for mental illness has been temporarily withdrawn’.
33 Quite stringent rules are now being suggested for irreversible and experimental forms of treatment and for electro-convulsive therapy. A common suggestion in relation to psycho-surgery, for instance, is that made by the Committee on Psycho-surgery in New South Wales which suggests a Psycho-surgery Review Board that would not necessarily approve applications even if they relate to illnesses of great severity if there is an absence of informed consent. This is now in part the case in the UK (see, for instance, Mental Health Act (Scotland 1984), Part x).
34 Thus N. N. Kittrie's first article of his ‘Therapeutic Bill of Rights' is that ‘No person shall be compelled to undergo treatment except for the defence of society’.
35 ‘Freedom, Autonomy and the Concept of a Person’, Proceedings of the Aristotelian Society 66 (1976), 109–130, at pp. 113–115.Google Scholar
36 See Rouse v Cameron 125 U.S. App. D.C.366, 373 F.2d, 451 (1966): ‘The court's duty is to test the commitment against the supposed legislative justification, the promise of treatment’; and Wyatt v Stickney 344 F. Supp. 373, 380 (M.D. Ala 1972): ‘To deprive any citizen of his or her liberty upon the altruistic theory that confinement is for human therapeutic reasons and then to fail to provide adequate treatment violates the very fundamentals of due process’. Judge Johnson declared that to be adequate, ‘treatment requires (i) a humane physical and psychological environment, (ii) qualified staff, in numbers sufficient to carry out the treatment plans, and (iii) individualized treatment plans’.
37 See the United Nations Declaration of the Rights of Mentally Retarded Persons, art. 2: ‘The mentally retarded person has a right to proper medical care and physical therapy and to such education, training and rehabilitation and guidance as will enable him to develop his ability and maximum potential’.
38 American Journal of Psychiatry 128 (1972), 1480.Google Scholar
39 Sydney Morning Herald 4 08 1980.Google Scholar
40 Some jurisdications make the inability to recognize the need for treatment a necessary criterion for civil commitment. Thus Alabama has the criterion of not having ‘sufficient insight or capacity to make responsible decisions concerning hospitalization’, and New York has ‘so impaired that he is unable to understand the need for such care and treatment’. See Brooks, A. D., Law, Psychiatry and Mental Health System (Boston, 1974), 676.Google Scholar
41 Szasz, T., in Humber, and Almeder, , Biomedical Ethics and the Law (New York: Plenum Press, 1976), 167.Google Scholar
42 Szasz, T., ‘The Right to Health’, in Burns, Donald S. (ed.), The Right to Treatment (New York: Springer Publishing Company, 1969), 59–76, at pp. 72 ff.Google Scholar
43 This doctrine of ‘substituted Judgement’ is discussed in Lowy, Cathy, ‘The Doctrine of Substituted Judgement: Deciding for the Incompetent’, Bulletin of the Australian Society of Legal Philosophy No. 21 (1981), 55–71Google Scholar. Ms Lowy quotes from the judgment concerning Earle Spring who contracted a disease of the kidneys and required regular dialysis to keep alive. He consented to treatment but became demented. His son was appointed guardian and applied to the courts to have the treatment discontinued:
… a competent person has a general right to refuse medical treatment in appropriate circumstances, … The same right is also exercised through a ‘substituted judgment’ on his behalf. The decision should be that which would be made by the incompetent persons, if he were competent, taking into account his actual interests and preferences and also his present and future incompetency’ (In the Matter of Earle Spring, 405 N.E. 2d. 115 Mass., 115 (1980)).Google Scholar
44 See Health Commission of Victoria, Report of the Consultative Committee on the Review of Mental Health Legislation (Melbourne, 1980)Google Scholar, para. 3.18:‘…the “sick” person might later be extremely critical, and justifiably so, of family, society and medical profession which failed to take appropriate remedial action’.
45 See Wexler, , op. cit. Ch. 2.Google Scholar
46 Katz, J., ‘The Right to Treatment: An Enchanting Legal Fiction’, University of Chicago Law Review 36 (1969), 770–772CrossRefGoogle Scholar: ‘Behind the conscious refusal of treatment, other unconscious wishes also operate—to be protected, to be cared for, to be sustained, to be helped’.
47 See Herr, S. S., ‘Protecting Human Rights of the Mentally Handicapped’, Catholic University Law Review 26 (1977).Google Scholar
48 See Eisenberg, Leon, ‘Psychiatric Intervention’Google Scholar, in Humber, and Almeder, (eds), op. cit., 101Google Scholar: ‘Recent discoveries hold great promise for new and better means of diminishing the misery associated with disorders of the mind’.
49 See Editorial, American Journal of Psychiatry 136 (1979), 327 f.Google Scholar
50 See Benn, Stanley I., ‘Human Rights—For Whom and For What?’Google Scholar, in Kamenka, E. and Tay, A. E. (eds), op. cit. 65.Google Scholar
51 This would seem to be the case with Stanley Benn's views against strong paternalism in other spheres; see ‘Benevolent Interference and Respect for Persons’, Bulletin of the Australian Society of Legal Philosophy No. 21 (1981), 99–112, at pp. 111 f.Google Scholar
52 See Benn, Stanley I., ‘Personal Freedom and Environmental Ethics: The Moral Inequality of Species’, in Dorsey, Gray (ed.), Equality and Freedom (New York: Oceana Publishing, 1977), 401–424, at pp. 405–411.Google Scholar
