A Vindication of the Rights of Psychiatric Patients
| DOI | http://doi.org/10.1111/1467-6478.00044 |
| Date | 01 June 1997 |
| Published date | 01 June 1997 |
| Author | Michael Cavadino |
New British legislation1allows for extra restrictions to be placed on the
liberty of certain psychiatric patients discharged into the community. At the
same time there continue to be repeated calls for more radical curbs on the
liberties of psychiatric patients and ex-patients.2It may, then, be timely to
consider what rights should generally be attributed to people who suffer
from mental disorders. This paper contends that human rights exist, that
the paramount human right is the right of each individual to the maximum
‘positive freedom’, and that as a logical corollary mental health law should
be of a liberal cast, requiring strong grounds and evidence before the liberty
of a patient is removed or restricted.
DO HUMAN RIGHTS EXIST?
It is possible to doubt the existence of individual human rights from a variety
of positions ranging from Benthamite utilitarianism through marxism, post-
modernism, and communitarianism to fully-fledged moral scepticism.
Although a full demolition of all of these positions is beyond this paper’s
scope, I will be putting forward a positive case for the existence of human
rights and suggesting answers to the most common objections to rights theory.
Given the plethora of diverse claims and theories about the nature of
rights and the discourse of rights, it is first necessary to define what is meant
by the claim that rights exist. A right is a
rationally determinable relationship
between people, such that one person ought to act towards another in such
a way as to respect the other’s right. Legal rights are one kind of right: given
the existence of a legal system of rules it can be rationally determined that
people have certain legal rights. Moral rights are not necessarily embodied
in the law. I have a moral right if it can be rationally determined that others
should (morally) act towards me in a certain manner which benefits me,
whether or not the prevailing ‘positive law’ says they should.
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Centre for Criminological and Legal Research, University of Sheffield,
Crookesmoor Building, Conduit Road, Sheffield S10 1FL, England
235
JOURNAL OF LAW AND SOCIETY
VOLUME 24, NUMBER 2, JUNE 1997
ISSN: 0263–323X, pp. 235–51
A Vindication of the Rights of Psychiatric Patients
MICHAEL CAVADINO*
Can it be established that moral rights so defined exist objectively, or is
the recognition of rights merely – as some would say – a subjective choice
or a relativistic cultural phenomenon? A particularly interesting and formidable
attempt to provide an objective foundation for rights has been made by
Alan Gewirth. Gewirth argues that any ‘prospective purposive agent’ (anyone
who ever does or wants to do anything for any reason)3must necessarily
value his or her freedom and well-being, since these are the generically
necessary conditions of his or her agency. Therefore an agent must rationally
claim a right to freedom and well-being, and must also recognize that others
have an equal right to the exact same.
Of the many criticisms that have been levelled at this argument, the
majority can be demonstrated to be fallacious.4Perhaps the weightiest
objections concern the stages in the argument where the rational agent is
logically compelled to move from amorally valuing his or her own freedom
and well-being to the moral position of placing an equal value on other
people’s rights. However, even if such objections are sound, Gewirth’s
argument suggests that the only moral position with any rational coherence
is one of equal individual rights; by comparison, any other proposed moral
position would have the status of a mere arbitrary assertion.5
It is always possible to resist such conclusions – or, indeed to resist any
argument – by simply denying the force of rationality. Some postmodernists
seem at times to have done just this by rejecting the claims of a ‘universal’
or ‘totalizing’ reason.6Here we need to distinguish between different possible
meanings of ‘totalization’. It is one thing to deny that reason can supply us
with relatively simple ‘totalizing’ theories which adequately describe or
explain the whole social world. But it is quite another, more radically
dangerous step to deny that there can be any universally valid principles of
reason, however basic. On the one hand, there can, of course, be no rational
argument with those who reject the fundamental rules of rational argument,
any more than you can have sensible games of chess with opponents who
think they are engaging in all-in wrestling. On the other hand, it behoves
rational postmodernists, if they deny the force of an argument such as
Gewirth’s, to specify which if any of the principles of reason it employs they
accept and which they reject.
A second type of objection to rights theory alleges that ‘rights discourse’
is defective on political grounds. This is a position which has been taken by
marxists,7postmodernists,8and some feminists,9and could be said to be a
standard doctrine of the critical legal studies movement.10 Typically, these
critics observe that rights discourse is individualistic: rights inhere in the
human individual rather than in any human collectivity such as a class or
community. Because of this, it is claimed, rights theories play into the hands
of the political Right by reinforcing a general ideology of individualism at
the expense of more collectivistic or communitarian ideologies.
This argument fails to take account of the different conceptions of rights
held by the political Right and by rights theorists on the Left, and the
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© Blackwell Publishers Ltd 1997
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