At the end of last week, I attended the conference on “Equality and the New Global Order” at the Kennedy School of Government that I had mentioned here. The extremely impressive list of speakers lived up to the high expectations. I have written up some fairly extensive notes below. However, they are based on my recollections and notes, not any recordings or transcripts, so please don’t quote from these or rely on their accuracy – if you’re interested in pursuing these issues, many of the papers are available here.
Mathias Risse – the organizer – started the program by reading (something like) the following:
All old-established national industries have been destroyed or are daily being destroyed. They are dislodged by new industries, whose introduction becomes a life and death question for all civilized nations, by industries that no longer work up indigenous raw material, but raw material drawn from the remotest zones; industries whose products are consumed, not only at home, but in every quarter of the globe. In place of the old wants, satisfied by the productions of the country, we find new wants, requiring for their satisfaction the products of distant lands and climes. In place of the old local and national seclusion and self-sufficiency, we have intercourse in every direction, universal interdependence of nations. And as in material, so also in intellectual production.
Then he observed that this quote from Marx, while in some ways remarkably prescient, did not anticipate an important element of our current world – the existence of global political and economic institutions. It is with this awareness that the conference aims to consider the implications of these institutions from the points of view of philosophy and the social sciences.
There were also a few welcoming remarks by Amartya Sen – who promptly left to catch a flight to a conference in Paris (if I remember correctly).
I. “Linguistic Justice and Global Justice” by Philippe Van Parijs.
Let me say right off that I don’t know much of the literature on this topic, but it seemed that Parijs was taking a rather unorthodox position. He began with a fundamental premise some kind of equal opportunity for welfare holds at a global level. A shared language is a kind of public good, so it raises the issue of distributive justice because of the possibility of free-riders – in this case, those who benefit from the existence of a shared language without paying any of the cost of creating such a lingua franca – namely, the native speakers of that language. Sometimes the benefits of being able to be understood are very large – when you are traveling in a foreign country and say, “I believe I swallowed my spoon,” you very much want to be understood. So, he gave a specific account of how to calculate the amount that the native speakers of the lingua franca must be taxed to subsidize the learning of that language by non-native speakers – there should be an equal cost/benefit ratio, taking into account the number of speakers involved on each side. An actual global tax regime is not likely to be on the table any time soon, so he advocated “reciprocal free riding” – for example, “plundering the intellectual property on the web” (much of which is in English).
He then responded to a number of criticisms, many of which were directed against those who would say that acceptance of English as the lingua franca was itself an insult to the dignity of native non-English speakers, and to subsidize their becoming bilingual would be no consolation. One version of this criticism says that languages are associated with certain perspectives or ideologies. His reply was that English has the word “not” available…. A more serious version of this criticism says that this contributes not only to the arrogance of the native speakers of the lingua franca but to its completely taking over. The only real reply, he suggested, was to have territorially based languages that involve coercive rules that impose education and the public use of the native language in that territory (in addition to learning the lingua franca). This is to extend the Quebec solution worldwide. Finally, he emphasized that the existence of a lingua franca is necessary as a mechanism for collective reasoning and justification – for a global civil society – which is itself necessary to underwrite – both motivationally and normatively – global justice.
Michael Blake, not surprisingly, disagreed with the underlying account of the requirements of global justice. (He only received the paper just before it was presented, but I wouldn’t have noticed that if he hadn’t told me.) Liberal principles of justice are fundamentally about equal political standing, and distributive justice requires some kind of equalization only when there are shared political institutions of a certain kind. For Rawls, the two principles of justice work together and he does not think that the difference principle, for example, can be detached from a political structure in which the basic liberties are guaranteed. Unlike Nagel’s recent work, Blake is willing to consider the possibility that the EU is (or is close to) such a political structure. But the WTO and the UN pretty clearly do not rise to that level.
When it comes to language rights – and cultural rights more generally – not all changes and developments raise concerns of justice – even if there are unequal costs and benefits. Although he didn’t say much about this, the idea seems to be that the intentional destruction or suppression of a culture of language properly generates resentment and triggers concerns of justice, but other developments that are in some sense more “natural” do not. On this view, the dominance of English raises concerns of justice only to the extent that it has been enforced and achieved on illegitimate grounds – through practices of colonialism, for example. The unequal benefits to native speakers of a lingua franca do not by themselves raise issues of distributive justice.
During discussion, Parijs noted that his concern really was generated by reflection on the EU. He believes that in order to work, a civil society is needed, so communication is necessary among ordinary people – that is, a lingua franca is necessary – and so he wanted to think about what would be needed in order to be able to do this fairly.
II. “Inequality, Justice, and Multilateral Institutions” by Allen Buchanan and Robert Keohane.
They started with a puzzle: there is widespread agreement that the better-off should do more to help the worse-off – why don’t they? Many different theories of justice overlap on this point, even if they disagree about what would ultimately satisfy the goal of global justice. The Standard View is that altruism (which they understand in the widest sense – deliberate action to benefit the interests of another at some cost to agent) is limited by self-interest and attachments to particular others. Buchanan didn’t deny this Standard View, but some authors like Goldsmith and Posner (in The Limits of International Law) seem to relish these limitations and conclude that encouraging greater altruism is hopeless and against human nature. That’s to be resisted and we should look to institutional design to help overcome failures of rational altruism – cases where there is a motivation to altruistic behavior, but a failure nonetheless. For example, there may be a lack of reliable information about private charitable organizations that pushes individuals toward local organizations where there is more reliable information. Or, there may be a risk-sharing problem – wealthy people might be reluctant to make donations in order to protect against down-side risks, e.g., very costly medical bills. So, we could allow (wealthy) people to buy insurance against very expensive medical conditions – this would carry a very high premium but guarantee very high care – the surplus could be used for people in need. Another kind of failure relates to weakness of will, and this could be partially addressed through institutional changes that generate or diminish esteem. Here the model is university fundraising, which has been extremely successful by generating a community devoted to a particular cause and attendant relations of esteem among constituents. They advocated attempting to build an analogous cohort of constituents for private charitable organizations, for example through the creation of intern programs.
Tim Scanlon presented some comments, mostly related to the Humean basis for the Standard View. He also followed up on Buchanan and Keohane’s example of charitable giving following the Asian tsunami and Katrina by arguing that these were episodic events, unlike relentless, grinding poverty. This gives rise to an additional form of motivational irrationality – that giving is admitting to an obligation that seems unlimited, so is never enough – as a psychological mechanism, maybe it is better not to give at all and avoid this unpleasant result. This also suggests a focus on particular beneficiaries, and the college fund-raising model might help here, too.
It is easy to nit-pick the details of these proposals – and many of the questions did just that. But I don’t think Buchanan and Keohane were necessarily presenting them as blueprints for immediate implementation. Rather, they were modeling how to think of institutional design in order to attempt to solve what most theories take to be a problem. And in this, I must say, they were very successful, whether or not the specific proposals were convincing. Keohane was relentlessly practical in the sense of considering institutional design that would facilitate motivation among those who were favorably disposed, but who were not following through. In particular, in answering the question why we should rely on private organizations at all rather than the government, he said, “No member of Congress was ever defeated for voting against foreign aid.” The ultimate idea, as Buchanan pointed out, wasn’t to deny that there may be natural limits to our altruism as the Standard View says, but to adjust our institutions to find those limits or extend them. Consider: there are natural limits to our cognitive abilities – we have limited memory and reasoning abilities, yet, we develop tools to extend these. Why not attempt to find analogous tools on the motivational side?
III. “The Future of Global Equality” by Leif Wenar.
Starting from an assumption of equal moral worth, it seems that this would generate an egalitarian distributive requirement. Some objections: 1. Nagel argues that this would be too demanding, requiring redistributive interference with domestic self-determination – but this is an old libertarian objection that is not convincing in the domestic case. 2. Rawls relies on national self-determination of political communities – but this means that the “sins of our forefathers” permanently condemn the prospects of the descendants. 3. Temkin argues that a commitment to equality involves “leveling down”, a lowering of the better off in the name of equality, even if it doesn’t make anyone else better off.
Rousseau considered the permissibility of inequalities with the introduction of the family, of property, and of the state. In each case, there are benefits from these institutions, but they also introduce inequalities. Think about the many goods associated with the family, for example, but also the inequalities that it generates. We can devise institutions and laws that at least aim to mitigate these inequalities while preserving the goods generated – we rule out nepotism, provide public schools, have inheritance taxes, etc. And this is the general strategy we should adopt with regard to states, as well: preserve the goods associated with multiple states, but mitigate the inequalities that get generated. In some cases, this will properly involve leveling down, but in other cases, only leveling up will be appropriate. Specifically, the process of decolonization can be understood as the leveling down of unequal political power. In the case of unequal life prospects among states, on the other hand, only leveling up seems appropriate – that is, we should aim at raising the prospects of the global least advantaged without lowering the prospects of the more advantaged. In the end, the picture is supposed to be this: although we start with an egalitarian basis, when we recognizing the goods associated with distinct political states, we must temper the underlying egalitarianism, although it still exerts a pressure.
In reply, Mattias Kumm asked whether global redistribution really would undermine the goods associated with distinct states. He also suggested that were we to discover aliens we considered to be moral agents who were worse-off than we are, we would have less of a duty toward them than toward the least advantaged humans. This shows that shared institutions are relevant to our duties.
In discussion, Wenar allowed that leveling down might be appropriate as a form of reparations, but not as an instrument toward the goal of equality. Risse pointed out that in order to assess the goods and bads of “the state system” we need a counterfactual alternative, and it is very hard to imagine what it would be. Blake pointed out that if the global order were just, and we discovered aliens were much better off than we were, it would not be obvious that they would owe us anything at all. Finally, in reply to a question of how we identify the sufficiency level, Wener pointed out that our difficulty finding a natural cut-off point might suggest that there is a latent egalitarianism doing the work.
IV. “What Kind of Global Institutions Will Accelerate Global Economic Catch-up?” by Dani Rodrik.
Rodrik started out by asking whether (simply in self-interested terms) you would rather be poor in a rich country or rich in a poor country. Define “poor” as bottom 10% and “rich” as top 10%. So, would you rather be in the bottom 10% of the top 10% of countries, or the top 10% of the bottom 10% of countries? It turns out the former is 3-4x wealthier than the latter, which shows most inequality is among countries not within them. (It matters that we’re talking about 10%, because that gets well beyond the very rich people in poor countries.) There is widespread agreement (on many different theories of justice) that it is imperative to raise the level of the global poor. But the conventional debate about how to do this is largely beside the point. Increased market access (e.g., for agricultural exports from poor countries) and increased foreign aid debt relief really won’t do that much. It’s not that he’s opposed to these things, but they are “small potatoes” compared to what really matters: increasing the productivity of poor countries. This comes about through a proper mix of market discipline and incentives – both sticks and carrots – and it not easy to strike this balance. When there is excessive market discipline, there are not enough incentives to invest in technologies that are uncertain and will result in shared benefits. But too much protection leads to monopolies and little incentive to increase productivity. During the 1970s, for example, when Latin America relies on import substitution, there was not enough market discipline. Some firms were protected when they were not productive and there was no way to shut them down. On the other hand, during the 1990s, Latin America was guided by the Washington Consensus, and productivity growth was even lower because there were not enough carrots for new investment. Productivity growth in East Asia was considerably higher during this period, where many countries resisted the Washington Consensus.
What is important is that countries have the flexibility to generate their own policies, attempting to identify the correct local balance of carrots and sticks. Unfortunately, the rules of the global economic order don’t allow this flexibility. Trade regimes of the WTO limit flexibility of industrial policies – the very policies that allowed East Asia, China, and India to increase productivity; international financial markets restrict financial codes and credit regimes; monetary rules insist on the free floating of currencies, where an undervalued currency seems to help (although certainly not guarantee) development. He concluded with a series of concrete policy initiatives that would help increase productivity and reduce global poverty, including a guest worker program that would facilitate labor mobility.
Josh Cohen, in reply, largely agreed with the theoretical framework, but focused especially on the guest worker programs. It would be extremely difficult to get a multilateral agreement on guest workers – it would require standardized labor standards and visa requirements, for example. More generally, he suggested, there would still be a role for global institutions not as super-legislators, but as coordinators of the various diverse policies that Rodrik calls for.
Most of the discussion focused on why Rodrik thought that most economists got it wrong by focusing on the gains to poor countries from increased access to the markets of wealthy countries. It’s not that trade hasn’t helped, Rodrik emphasized. It has. But at most, ending the agricultural subsidies of wealthy countries would increase aggregate prices by around 10% – and the standard deviation in such calculations is typically 6%. The World Bank and others greatly overstate the gains from increased trade. This would be swamped by the potential gains in loosening the restrictions on countries making their own economic policies.
V. [Second day] “Labor Regulation in a Globalizing World” by Kaushik Basu.
Basu began by pointing out that different labor and environmental standards, in the context of integrated markets, means that there are pressures to lower or eliminate standards. He told the story of calling an exterminator for a termite problem he was having in Dehli. When the exterminator arrived and began spraying chemicals all over, he asked whether they were effective. “Oh, yes,” was the reply. “These are completely banned in the US.” In response to these pressures, many countries have granted exemptions to labor regulations for export companies. Such exemptions appear to be Pareto improvements since individuals are free to opt out of the regulations if they believe doing so to be in their own interest. It is important to remember that while child labor may be bad, the alternatives – say, starvation or prostitution – may be even worse. For very poor countries, simply banning child labor in the absence of supporting policies, may actually be harmful. On the other hand, as he later pointed out, there may be multiple equilibria. So, if you ban child labor, this may bid up wages (because labor becomes scarce) to the point where adults make enough that they don’t have to send their children to work.
Economists typically think of rights as being waivable (for a fee, obviously). So why shouldn’t we allow individuals to waive their labor rules for higher wages? Why not allow them to work in hazardous environments or waive sexual harassment laws if the wages are high enough? The answer, Basu suggested, is that if we move from a system in which there are regulations to a system where individuals can waive their protections, the people who keep their protections may wind up being paid at a lower rate. While individual transactions may be Pareto improvements, the result of changing the system may be that some are worse-off than they would have been if the protections remained in place. And when there are situations that are Pareto-incomparable, we need to make a judgment about which values to go with.
Sabina Alkire replied that focusing on contracts that are locally Pareto improvements neglects that background range of choices available to people.
In discussion, Keohane pointed out that when economists rely on narrow assumptions they conclude that some kind of laissez-fair policy is justified, but the strength of Basu’s presentation was that from these minimal assumptions, he was able to justify certain kinds of regulation. But many people asked whether, in fact, he was able to justify inalienable rights, as he claimed. I asked why, in a situation in which allowing people to waive their rights lowered the wages of those who kept their rights, the solution isn’t to tax those who waive them and subsidize those who keep them. He agreed that when that was possible, it made sense. Charles Beitz then drew the obvious conclusion: that these rights aren’t actually inalienable and we are still working in a welfare-maximizing framework.
VI. “Does concern with global inequality require a different approach to international aid?” by Branco Milanovic
This presentation was very heavily empirical and gave an interesting insight into the theoretical difficulties of measuring inequality. He began by talking about the significance of the Gini coefficient and the extent of global inequality in income. But, he observed, any such measurement involves aggregation. So, if members of a wealthy country contribute to a poor country, it might turn out that some poor members of the wealthy country are subsidizing wealthy members of the poor country who are better off than they are. (See Rodrik’s example, above.) For many pairs of countries, this would be very unlikely to happen – there are few people in the poor country that have higher incomes than anyone in the rich country. But sometimes it might. For example, the wealthiest 15% of Chinese have a higher income than the poorest 5% of Germans. If we want truly progressive redistribution, we should have a way of measuring this likelihood. So, we need to take the internal distribution of a country into account. A progressive redistribution between countries should minimize the likelihood of regressive transfers. Furthermore, such redistributions should not make the national distribution more unequal. For example, even if the poor in a rich society are better off than the rich in a poor society, transferring from the former to the latter, although progressive, would increase the inequality within each country. The bottom line is that not only the richer, but also the more unequal a country is, the more it should contribute to the relief of global poverty.
Sanjay Reddy, in reply, pointed out that current aid patterns are not very progressive and not generally directed to basic social services. Furthermore, a focus on income inequality is misleading, because even the poor in rich countries have additional advantages over anyone in poor countries. And finally, some apparently regressive transfers may be justified if they bring about institutional changes that benefit the poor (beyond the direct transfers). An example might be paying for higher education in poor countries, which would directly benefit the relatively advantaged in the poor countries.
VII. “Fairness in Trade” by Mathias Risse.
Risse was interested in the following questions: When country A trades with country B, and B is an oppressive society, do the members of B have grounds for complaint against A? And, do the citizens of A have a complaint against their own government? If both A and B are legitimate, but have unequal wealth, are there still any concerns of justice? The answer – in one way or another – to all of these questions is: yes. The exposition moved from what he called a Strong Westphalian model to a Moderate Westphalian model to a Weak Westphalian model that he ultimately supported. Under certain conditions, trading with an abusive country is like trading in stolen goods and is objectionable on analogous grounds. In general, compensation is not sufficient to make up for such abuses. It may not be so clear what the practical implications are in all cases, but this is sufficient to move us away from the Strong Westphalian model – we cannot be simply indifferent to domestic arrangements in our trading partners.
Next, comes the Pauper Labor Argument – suppose country A has labor standards that are justified on moral grounds – citizens believe that these are moral requirements for just productive activities. But suppose county B does not have these minimal standards and is able to produce at a lower cost. Citizens of A have a complaint when they are undercut by trade with B – a country should not gain from the violations of moral standards in other countries. One implication is that Swedish workers (where there are very high labor standards) have a complaint when they trade with the US (where there are lower standards). But this complaint should have a relatively low priority. Finally, just as some citizens have a claim to subsidies or support based on how their economy is structured, similarly some subsidies may be justified based on how trade relations are structured.
Judith Goldstein pointed to several practical difficulties. It is unclear how to determine the baseline wage from which injustice is assessed. Trade always involves “lumpy gains”, so it always comes at some costs – does this mean it is always unjust and oppressive? Is it really objectionable for a country to help its own citizens if that puts foreigners at a competitive disadvantage? She also had doubts about whether the WTO could be part of the solution to these injustices, as Risse suggests in the written version of his paper. The WTO was designed to coordinate trade agreements and isn’t set up to redistribute wealth. Furthermore, although poor countries have been at a disadvantage during WTO negotiations and the rules currently favor the rich, to a large extent poor countries have been “free-riding” – they have typically been in violation of agreements and not pressed into compliance by the wealthy. As Rodrik pointed out, access to wealthy markets, although valuable, is relatively small compared to the gains available from increased labor mobility. It would also make a big difference if poor countries had more voice in trade dispute settlements. The WTO shows that we already have something like a weak Westphalian world – some duties are dependent on domestic policies, but it’s not so clear which are objectionable and which are acceptable – which are “trade distorting measures”.
In discussion, Wenar asked what to do if cutting off trade would make the poor worse off? Risse replied that he agreed with the implication – the point is that we need to take these effects into account. Allen Buchanan drew the conclusion that we simply aren’t yet clear about the legitimacy conditions of organizations like the WTO – at least, we need to be clear about its goals.
VIII. “Conceptions of Global Fairness” by Larry Summers.
Let me just say he is obviously a very smart man. He is equally obviously a very arrogant man. Speaking without any notes, he was basically interested in how a policy maker should value the effects of policies on different individuals. Assuming that we’re clear about the consequences of a policy, how should we weigh the effects on foreigners and fellow citizens? On the one hand, a pure utilitarianism would count the effects on all lives impartially – but “no policy maker in any democratic country would follow this.” On the other hand, he found it unacceptable to discount foreign lives altogether, or value them on instrumental grounds alone. So, there must be some principle that identifies the proper balancing, but he doesn’t know what it is. And while some policy-makers simply rely on their intuitions, it bothered him that there wasn’t some more solid foundation for these judgments. A similar problem concerns how to weigh effects on know versus unknown individuals. For example, how to choose between spending money on condoms to prevent the spread of HIV or spending that money on anti-retroviral drugs to treat many fewer people who are already infected? Policy tends toward helping identifiable beneficiaries, even when they are without a direct voice in deliberations.
Then Summers gave another example. Just before he became president of Harvard, he received a passionate letter signed by 150 faculty members calling for more money to be spent on expanded anti-retroviral treatments. There was no call for more money for condom distribution and prevention. The implication, he suggested, was that these faculty members were simply failing to confront the fact of limited resources and the necessity of making choices.
Jonathan Wolff cut short his comments to allow for more discussion. But he made a telling point. In her work, In a Different Voice, Carol Gilligan reports how two children respond when asked to consider a moral dilemma that concerns balancing your interests and that of others. Amy agonizes about what to do, constantly attempting to break out of the narrow confines that define the dilemma, questioning the assumptions and how the puzzle is presented. Jake, on the other hand, flatly states that you should give about 3/4 to yourself, 1/4 for others. Perhaps Amy is right – there is no formula that Summers is asking for. And perhaps the signatories weren’t as naïve as he suggested. Maybe they knew that choices had to be made, but they were pushing to change the terms in which the question was framed – for example, not simply taking the total budget size for granted.
Summers responded: “The one thing that will keep a first year law student from becoming a second year law student is failing to embrace the hypothetical.” Eventually, he said, you must confront the fact that choices must be made, and it is important to reflect on how those choices should be made – neither pure impartiality nor pure self-interest seems appropriate – so what is?
Scanlon remarked that although there are no easy formulas, rather than thinking in terms of how we value different people and their lives, we should start by thinking in terms of obligations. He didn’t state this clearly, but the idea (I think) was that we can say that all people are of equal worth, but that we have specific obligations to particular others. Pogge pointed out that there are widely recognized exceptions to the permission to show partiality toward one’s family and relations – for example, anti-nepotism laws and the requirements on judges. Summers agreed and said that as Treasury Secretary, he believed his obligations were to represent US interests, but he viewed things differently when he was chief economist of the World Bank. (I understood him to mean that he really did believe impartiality was required. Pogge pointed out to me that he didn’t exactly say that. I also mentioned to Pogge that I would have loved to hear his follow up: that shouldn’t impartiality also be required when setting up the institutions themselves? Pogge replied that his question had given Summers the opportunity to make that point himself, and he didn’t – but I’m not sure that this implication would have been so obvious.)
As I said, Summers came across as very smart but very arrogant. On the one hand, it actually was heartening that a person who has exercised so much power worries about these kinds of issues. These were good questions and just the kinds of things that should trouble him. They are not easy to answer and it was good that he was encouraging others to reflect on them. On the other hand, many of the people in that room have thought long and hard about exactly these issues and some even have generated powerful insights into them. He obviously had no idea what any of them have said, and he came off as lecturing us that we should start thinking about these problems that he thought of.
IX. [Third day] “Incentives for Pharmaceutical Research — Must they exclude the global poor from advanced medicines?” by Thomas Pogge.
Pogge described a proposal to get necessary drugs to poor people and to encourage the development of drugs to treat their illnesses rather than the more profitable – but less deadly – problems of wealthy individuals. “It has come to my attention,” he observed, “that in the past when I have had some good ideas, they have not immediately been implemented.” Therefore, it makes sense to look for ways to line up private interests so that they lead to achieving important social goals.
So, think about intellectual property rights – patents – specifically in drugs. Such patents prevent the manufacturing of relatively inexpensive generic drugs that could do a lot of good. Some might say that there is a natural right to intellectual property. But: 1. why should drug companies get it if part of the basic research was publicly financed? 2. how are the details of this natural right to be specified and why should we think they line up with the current institutional implementation? 3. why should we think that these rights are so powerful to outweigh the life-saving results of violating them? In fact, most people try to defend intellectual property rights on grounds of social-utility rather than on natural right. This is a serious argument that must be addressed. But why is it assumed that the only choices are complete uniformity of intellectual property rights globally or no rights at all? Why not a mixed regime in different countries? The current regime – moving toward a single global regime – is unjust and is not made just simply because it was agreed to in the WTO.
Here is an attractive alternative. Allow pharmaceutical companies to waive their traditional patent and allow generics to be made and they will receive income from a fund based on the number of lives saved by the drug, no matter who has manufactured it. This will incentivize research where it can do the most good, and get the drugs produced and sold at the lowest price. Of course, it will take a global fund to pay for this, but he estimates that this would cost only about $50 per taxpayer (per year, I think) in the wealthy countries. On the other hand, they would know that it would only be spent when actual results can be measured.
Ani Satz commented that the general problem is that the current scheme doesn’t separate compensation from incentives in developing new drugs. The incentive for developing new drugs comes exclusively from the first users. But who these first users are really is a morally arbitrary matter. Instead, we should have a scheme in which taxpayers who may eventually have a use for the drugs pay for their development. (This is analogous to Jules Coleman’s point that in tort law we use damages to serve both goals of deterrence and compensation.) The specifics of Pogge’s proposal don’t fit well with US constitutional law. Currently, drug companies apply for patents far before they know the use or effectiveness of their drugs. Basically, Pogge is proposing a patent with a compulsory license (and a source of compensation). But this goes against a long history of US constitutional law. There is also a very serious problem in assessing the impact of a drug for purposes of compensation under Pogge’s scheme.
Pogge replied that his scheme is not supposed to be compulsory. It wouldn’t involve blocking or overriding the current patent system, but simply giving companies an alternative that might be attractive to them – a new way of making money by doing good.
Wenar raised the interesting idea that perhaps some use could be made of the takings clause of the fifth amendment. (I later asked Satz about this. She said that it would probably only apply in the case of a declared health emergency, and it has never been used for a foreign purpose.)
Risse said that although the Lockean Proviso is implausible with land, it makes more sense with intellectual property. After all, when I invent something new and potentially beneficial, it makes sense to say that I really haven’t made anybody worse off. Pogge replied by pressing on the peculiarity of a natural right to intellectual property. “Suppose,” he said, “I invent a wild new dance. You see me doing it, and copy it. I say: ‘You can’t do that. It’s mine. I haven’t made anybody worse off by inventing it.’ You can reply to me: ‘I’m not making anybody worse off, either, when I copy you.’”
X. “Women’s Health: Are Global Inequalities Greater than those for Men?” Ruth Macklin
She focused on areas where there was necessarily a gap between female and male health – various aspects of reproductive health. This was a survey of a seemingly endless list of health care deficits faced by women in all different parts of the world with regard to unsafe abortions (68,000 women die each year), female genital mutilation, physical violence related to reproduction, rape, etc. These failures are due to many factors, including deeply rooted customs and norms, ideological barriers, poor financial and human infrastructure, discriminatory laws and unequal enforcement.
Rebecca Cook emphasized that the social determinants of women’s health need to be considered more directly. Specifically, it is important to consider how a “chastity code” is constructed and how women are understood culturally.
Several questions pressed Macklin on whether any of these horrors really established that women face an overall health deficit compared to men. After all, there are areas where men face higher burdens – gun-shot wounds and heart disease, for example. How to aggregate these different factors and if there are overall inequalities, determine whether they are unjust? Macklin wouldn’t take the bait, and insisted on the need to disaggregate factors without the need to determine overall inequalities.
XI. “Global Health Inequalities – a Matter of Justice?” Norman Daniels.
Daniels began by arguing that if we are interested in assessing the justice of global health inequalities, we can’t simply apply a framework designed for domestic health inequalities. Furthermore, it doesn’t help us to switch to a perspective of human rights – we still need to answer the same basic question. And most human rights perspectives refer to the “Highest Attainable Level” of physical and mental rights. This suggests a standard that is “progressively realizable” – it changes, in other words, with economic and technological development and other social changes. The very large gaps in health – say, life expectancy – between rich and poor countries really does seem to be unjust on most conceptions of global justice. The minimalist strategy (Pogge) says that we must avoid doing harm – but this requires identification of a baseline from which to assess harm. And it is hard to make the case that an intellectual property regime is harming poor countries. There certainly may be more attractive schemes (perhaps like the one Pogge outlined) but this seems to be a matter of positive duties, not the avoidance of harm. Nagel’s state-centered view can’t make sense of something like the WHO’s concern for health, impartially on a global scale. Cohen and Sabel’s recent proposal (P&PA 2006) might provide a more attractive framework for making these assessments.
Elisabeth Ashford replied by suggesting that between the extremes of statism and strong cosmopolitanism there is room for a moderate cosmopolitanism, where there are some duties of justice beyond shared political obligations and also beyond merely negative human rights, but without falling into an extreme cosmopolitanism. So, there may be a right to basic medical care and this generates a positive duty for everyone who is able to assist in satisfying and securing this basic right. But there may be additional duties beyond securing this basic right based on shared political affiliations. The strength of this positive duty will vary based on many factors, and there may be hard cases. But there will also be easy cases and even this would be real progress.