Towards a Post-Social Right to Life, Liberty and Security of the Person Through Markets? Conceptions of Citizenship and the Implications for Health Law as Governance

DOI10.1177/0964663919894734
Publication Date01 October 2020
AuthorKarl Guebert
SubjectArticles
Article
Towards a Post-Social
Right to Life, Liberty
and Security of the
Person Through Markets?
Conceptions of Citizenship
and the Implications for
Health Law as Governance
Karl Guebert
University of Ottawa, Canada
Abstract
In the context of increased expectations of healthcare services and fiscal pressures,
rights claims constitute a force pushing for privatization and thus threaten Canada’s
single-tier public system. This article introduces the concept of a ‘post-social right’ to
understand the current legal effort to enforce a right to healthcare derivative of section 7
of the Canadian Charter of Rights and Freedoms. Commonly considered as a ‘negative’
right, I suggest that the right also has positive capacity. Rather than simply protecting
against unjust state intervention, section 7 claims valorize a particular mode of sustaining
life, liberty and security of the person according to neo-liberal principles. A right to
markets in healthcare aligns health law with the logic of prudentialism as a technology of
governance. As the enforceability of the right expands and strengthens, health law as
governance operates to normalize market solutions to health matters. It follows that a
form of two-tier citizenship arises, dividing ‘activated’ citizens from the ‘inactive’.
Keywords
Citizenship, health law, law as governance, post-social right, rights litigation
Corresponding author:
Karl Guebert, Faculty of Law, University of Ottawa, Fauteux Hall, 57 Louis Pasteur St, Ottawa, ON K1N 6N5,
Canada.
Email: karl.guebert@uottawa.ca
Social & Legal Studies
2020, Vol. 29(5) 609–628
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/0964663919894734
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Introduction
Perhaps the most significant threat to Canada’s single-tier public healthcare system as it
currentlyexists does not comefrom conservativeor libertarian politiciansor governments;it
comes from Canadians themselves. More specifically, the threat derives from Canadians
seeking a right to healthcare. This is not to suggest that democratic and administrative
processes of reform are no longer important. No doubt governments and organizations
continueto pass regulations and policies,and in so doing employdiscourses, that contribute
to the ‘passive privatization’ of the system (Bhatia, 2010; Sonnen and McCracken, 1999;
Whiteside, 2009). Healthcare has been a central regulatory concernfor governments since
the 1990s due to itsmajor financial expenditureof public budgets and a wavering commit-
ment to welfarism (Graefe, 2018; Marmor, 1999; Whiteside, 2009, 2015). But more
recently, the claim to a right to healthcare constitutes a new force that threatens the core
underlying principles of public healthcare. As this article discusses below, the right has
alreadysuccessfully struckdown one piece of the complexlegislative frameworkprotecting
publichealthcare. Shouldits success continueby way of furtherrights litigation,the right has
the potentialto redefine theparameters of democraticand administrativereform. Indeed, the
right could mandate the demise of the single-payer system that we know.
This article situates the rise of health rights claims in Canada’s broader political–
economic context as a contemporary market capitalist society. I provide a sketch of the
problematization of public healthcare from which health rights litigation has arisen. My
claim is that the right which is emerging is one that I will term a ‘post-social right’ to
markets in healthcare. By this I mean that the political trend towards an individualized
model of governance has implications for conceptions of rights and citizenship (see
O’Malley, 1996a). The post-social right is a distinctly neo-liberal technology of govern-
ment that corresponds with other technologies, such as the logic of prudentialism. Bhatia
(2010) has identified the rise of a discourse that frames healthcare as a civil right rather
than social right, which further normalizes privatization as an alternative in the public
debate. This suggests that an important shift in public perception of healthcare is occur-
ring, not simply a resurfacing of doctors’ active resistance to public healthcare (on this,
see Marchildon and Schrijvers, 2011). From the analysis that follows, I suggest that the
form of right which is emerging is distinct from a civil right, and thereby positively
affects citizenship and ‘law as governance’ (Hunt and Wickham, 1994).
My argument is in keeping with the understanding of freedom as ‘a politics of life’, a
relation of power through which subjects are endowed with a capacity to act, taking a
particular form that is practical and technical to contemporary government (Rose, 1999:
94). Rights and liberties are not merely wielded by individuals against ‘the State’; rather,
they are governmental in that they are constitutive of free subjects capable of governing
themselves in accordance with certain norms (e.g. Kotkas, 2010). The form of right that I
am concerned with here is, I suggest, a corollary of a broader shift in conceptions of
citizenship. In authorizing privatization, the right configures the legal terrain in a way
that orients health law and policy to normalize market solutions to health matters and the
inequalities this is likely to produce.
The purpose of the article is to understand the impact of health rights litigation on
health law as governance. That is, to explore the implications of health rights on the
610 Social & Legal Studies 29(5)

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