A critique of the concept of 'occupational rights' on Constitution Day 2020

Today is Constitution Day - a good time to reflect on the nature of rights, particularly as this is an apparent topic of interest among some occupational scientists.

Many people improperly believe that in an American context rights spring out of the Constitution.  Actually, the so-called Bill of Rights is a list of governmental limitations - or actions that the government can not take against individuals related to their rights.  One of my favorites is the ninth amendment - so limiting in its scope - it states that enumerating any rights in the Constitution shall not be construed to deny or disparage other rights retained by the people.

So what is the actual source of these rights?  The American Declaration of Independence states that they are endowed by a Creator - often interpreted as natural rights that are inalienable.  

Natural rights were previously identified by John Locke in context of England's Glorious Revolution - identified at the time as the rights to "life, liberty, and property."  The purpose of government, then, is to establish the political authority to socially and morally create the context where people can live with those freedoms.  As such, justice systems are created as an enforcement mechanism for those rights.

The rights do not spring out of the government; rather, the government structure respects and preserves the natural order.

Occupational scientists have been discussing new types of rights - sometimes referring to them as "occupational rights" (Townsend and Wilcock, 2004).  Four types of "occupational rights were originally identified:

1. to experience meaning and enrichment in one's occupations

2. to participate in a range of occupations for health and social inclusion

3. to make choices and share decision making power in daily life

4. to receive equal privileges for diverse participation in occupations

It is interesting that there has not been much conversation about these rights, that the authors seem to spring in reverse fashion out of an identification of injustices.  Townsend and Wilcock state that these ideas were developed out of literature review and free-form conversations in workshops about a nebulously defined concept of "occupational justice."

This fountainhead of rights-creation, reverse-engineered out of a created justice model, is an atypical methodology for understanding the complex issue of rights, at least in the well-established philosophy of notables like John Locke.

Nevertheless, occupational scientists have since been advancing the notion that occupational rights exist.  More recently, these 'occupational rights' have been elevated as a form of 'human rights' (Hammell, 2017, 2020).  The intent of such a presentation was admittedly framed so that the future of the occupational therapy profession could be shaped to be more important than it currently is.  That in itself is also a rather atypical methodology for discussing something as important as rights.

The question that we might ask is, "Should occupational scientists or occupational therapists be proposing a new rights framework simply to help aggrandize the discipline and profession?"  I think this is an important issue, since it seems that when rights are attempted to be comprehended it has historically been a part of rather important cultural and social revolution.  I am uncertain if an allied health field that has historically associated itself with otherwise noble goals of rehabilitation and helping people is an expected springboard for a human rights framework.   

Crawford (2017) wondered if a rights-approach was beyond the scope of occupational therapy - and determined that it would be only if we held true to our philosophical grounding - which she identified as being represented in PEO models.  Only by expanding the notion of 'environment' to include political and social structures of government could occupational therapists begin conversations about human rights being synonymous with occupational rights.  She advances the argument that rights identified by the United Nations via the International Covenant on Economic, Social, and Cultural Rights are relevant to occupational engagement rights.  Still, this does nothing to address the fact that these enumerated 'rights' came from the UN, a body that is routinely criticized for barely holding to its own standards on such matters.

Still, Crawford's method requires occupational therapy to abandon its core philosophy to even enter the arena.  That is a concerning requirement to advance a new direction for a profession.

These types of fundamental concerns don't seem to be addressed by those who are interested in this new concept of occupational rights.  There is no philosophical justification to support occupational therapy's foray into this space.  Also, the rights discussed seem to be advanced from an assumption that governments and political bodies are the locations from which rights can spring.  It does not seem to matter that this idea contravenes the notion of natural rights.

It seems that the justification for occupational science and occupational therapy is that if you abandon your core philosophy and ignore the intellectual tradition of John Locke and ignore the fundamental underpinnings of Western philosophy then you can just create your own 'rights' system.

This all takes the profession of occupational therapy into a strange place - for example by having the occupational therapist advocate for a toy lending library based on some perceived rights infringement as opposed to helping them in a way that most people still consider occupational therapy - by helping them improve their skills and abilities (Wolf, et.al., 2010).

I understand that I may be considered regressive, but I would argue that the correct label would instead be conservative - at least as it pertains to the notion that an obscure health profession should be the germination point for a new rights framework.

Fundamentally, this exploration of 'occupational rights' primarily remains the intellectual pursuit of those who are not affiliated with any kind of mainstream practice in the United States context.  There is nothing inherently incorrect with these intellectual pursuits or for people to pursue philosophical constructs that make local sense.  However, as I have argued in the past, this should be incredibly important for the American Occupational Therapy Association when it considers what kinds of concepts are allowed to infiltrate American practice documents like the new Practice Framework.

For all the concerns about colonization that are expressed by non-Western intellectuals, there seems to be a gigantic blind spot among some American occupational scientists about whether or not ideas generated in other societies and cultures properly fit within the American context.

Today is Constitution Day - an important day for Americans to reflect on the ideas of rights.  It is also a correct time for American occupational therapists in particular to question ideas about 'occupational rights' that would have us abandon our core philosophy, contravene our understanding of where rights emanate, and that subvert our fundamental social compact to an international body that is arguably less consistent in respecting human rights than American society itself is able to imperfectly express.


References:

Crawford, E. (2017). Continuing the dialogue: A rights-approach in occupational therapy. Australian Occupational Therapy Journal, 64(6), 505–509. https://doi.org/10.1111/1440-1630.12416

Hammell, K. W. (2017). Opportunities for well-being: The right to occupational engagement. Canadian Journal of Occupational Therapy. Revue Canadienne d’ergotherapie, 84(4–5), 209–222. https://doi.org/10.1177/0008417417734831

Hammell, K.W. (2020). Action on the social determinants of health: Advancing occupational equity and occupational rights. Cadernos Brasileiros de Terapia Ocupacional, 28(1), 378-400. Epub March 27, 2020.https://doi.org/10.4322/2526-8910.ctoarf2052

Townsend E, & Wilcock AA. (2004). Occupational justice and client-centered practice: a dialogue in progress. Canadian Journal of Occupational Therapy, 71(2), 75–87.

Wolf, L., Ripat, J., Davis, E., Becker, P., MacSwiggan, J. (2010). Applying an occupational justice framework. Occupational Therapy Now, 12(1), 15–18.