If we accept the maxim salus populi suprema lex esto - the health of the people is the supreme law - as a legitimate norm, then it must hold as well that the negation of the health of the people is a negation of the supreme law. As such, any trespass on the health of people is not only an illegitimate exercise of power and criminal, but it must also be corrected in order to comply with the maxim.
Among the many issues this formulation raises, is whether or not there is a right to housing. And if one accepts the authority of the maxim, then one would have to conclude that, yes, there is a right to housing. It is implicit in the maxim. For what does it mean that the negation of the health of the people is against the law? What is a negation of the health of the people?
Firstly, it must be recognized that for people to be healthy certain conditions must be present. On a very basic level, the air and water must be clean; nutritious and adequate amounts of food must be available; and people need to have housing that is supportive of health, i.e. the housing will have hot and cold water, electricity, will not contain lead paint, asbestos, or other toxins, etc.
Where such conditions do not prevail, the conditions of health will be absent. Because the absence of these conditions of health run counter to the maxim, they fall outside of the law and must be corrected. That is, in order to not lose its legitimacy, a society must provide these conditions. To be sure, these conditions are even more basic for security, safety, health, and the rest, than a military. So, if a society is going to collectively produce and maintain a military apparatus, a fortiori it ought to provide housing. Of course, there is a difference between saying that a society ought to provide housing and saying that people have a right to housing.
It makes no sense to talk about rights without discussing what rights imply - that is, all rights have correlating duties. If a society has some sort of duty - legal or otherwise - to provide some condition, then a right to that condition is created, and vice versa. If the health of the people is the supreme law, and the negation of the health of the people is a negation of the supreme law and, therefore, illegal, then the society that accepts that maxim as binding has a duty to negate those conditions which negate the health of the people. This creates a positive duty to provide conditions of health, one of which is the very basic condition of housing. A right to housing arises from this formulation.
Of course, at this point one might argue that the 'market' - the real estate market in this instance - provides these conditions, so a society may satisfy its duty by protecting peoples' access to the market. However, the market cannot supply much more than a semblance of these conditions of health. Among other things, the market is based on exchange. That is, one may only take possession of things in market relations after paying a price for it - possession is conditional. This conditionality is an obstacle to the achievement of the conditions of health. As such, the market cannot satisfy the duty the society owes to provide to each the conditions of health.
At this point I am again reminded of the young woman who was walking her dog past the cafe the other day. It was a very handsome dog, and many people remarked upon this. Among these was a man who, after petting and briefly inspecting the dog, offered the woman $5,000 in exchange for her dog. When the young woman refused the offer, he doubled it. Still, though, the offer was rejected. OK, he said, smiling, I'll give you $50,000. And when this offer was rejected as well, he doubled it again. The young woman, somewhat impatiently, replied that her dog is not for sale. But I'm offering you one hundred thousand dollars, the man complained. I don't want it, rejoined the young woman. But, stammered the man, you are interfering with free trade! I don't care, said the young woman. Some things are just not for sale!
Indeed, some things are not for sale. We all agree these days that human beings, for example, are not for sale - even though, in a market economy, everyone is to some degree for rent. To be sure, for the most part one is compelled to exchange one's labor and time in the market in order to secure for one's self some approximation of the conditions of health - it is merely an approximation of conditions of health, however, because being compelled to do such things itself produces, or reproduces, conditions of disease, which according to the maxim are criminal.
Contrary to the
ideology of its adherents, a very basic and profound conflict of interest exists between the
so-called common good and the so-called private sphere which institutionally precludes conditions of health. What is plainly understood and accepted in Labor Law, for example – that labor and capital
are fundamentally antagonistic, and that what is salutary to one is harmful to
the other – is for some reason not extended to the other spheres of economic
relations. The market for housing provides a very clear example of
As the relationship is based on making a profit, landlords
are typically faced with a conflict of interest concerning their duties to their tenants. In making money off of their
investment, the health and welfare of their tenants stands in direct opposition
to the amount of money that landlords can recover from their investment. The less they invest in making their properties healthful, the more they keep in their pockets. And
because the landlord enters the landlord-tenant relationship as an investor,
with the purpose of making money, it is not surprising that this conflict is
resolved in favor of the landlord’s profit, and against the conditions of health. The ideologue will counter that the
tenant, in such a case, is free to leave and find a beneficent landlord and
that the market, the private good, will ultimately lead to the common good. However, this entire argument is obviated by the recognition that these market relations - insofar as they are for profit, which is always a marker of some degree of exploitation and disease - are intrinsically hostile to the conditions of health.
If the health of the people is
the supreme law, this gives rise to a social duty-of-care to protect
health. That is, society must not only not commit active harms, it must
not commit passive harms as well - as such, it must intervene to
stop harms and correct conditions of disease by supplying the positive conditions of health where they are deficient. Because a market economy obstructs access to conditions of health, putting a price on necessities, among other things, all of those things necessary for
conditions of health must be de-commodified in order to satisfy the
maxim. That is, what is necessary for health - including healthy housing - must be available to everyone for free in order to comply with the maxim. At present, according to the maxim, even the collection of rents is a violation of the law.
Some might argue that depriving the rentier class of the income they collect from rents amounts to an illegal taking, and to the deprivation of their property. However, according to the maxim it was the privatization of the property that the rentier class now holds - appropriating by force what was originally held in common - that itself constitutes the initial illegal taking. As such, it is not so much a taking of property as it is a returning of what was never legitimately held in the first place.
That the word property derives from the Latin pro privo - for the individual - should be noted at this point. Yet when it comes to real property that is rented out, the question arises: who is the individual? Is it the landlord or the tenant? Perhaps we can answer the question by tentatively stating that, in order to comply with the maxim, the individual must be able to own healthy housing, for free. As such, the landlord need not worry that s/he will wind up without any property at all. S/he will be able to maintain ownership of that which s/he inhabits, as opposed to possesses. For the landlord's health also falls within the health of the people which must not be trespassed.