Negative Duties and the Requirements of Justice
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- Fisher, A. Res Publica (2010) 16: 425. doi:10.1007/s11158-010-9124-0
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When this immensely influential book was first published in 2002 it prompted a great deal of debate in the fields of human rights and global justice. Some were troubled by the limits of Pogge’s institutional understanding of human rights, others concerned that his proposals inadequately target poverty. Criticism tends to be along these lines: that Pogge does not go far enough. This second edition is largely unchanged, with the exception of an additional chapter on pharmaceutical innovation and its effects on the global poor. But while his methods for tackling world poverty broaden, the objections from his critics remain unanswered.
In this book Pogge aims to respond to two common prejudices which may deter wealthy nations from working to alleviate global poverty: ‘(1) that the persistence of severe poverty abroad does not require our moral attention, and (2) that there is nothing seriously wrong with our conduct, our policies, and the global economic institutions we forge and uphold’ (6–7). Pogge rejects these views, drawing to some extent on empirical evidence, but his reasons why we ought to reject them are what make his argument so compelling. Poverty does not deserve our moral attention purely because it is bad in itself. Nor are our conduct, policies and global economic institutions wrong because they fail to help the needy. Rather, Pogge claims, poverty deserves our attention, as we are responsible for its creation, and our conduct, policies and institutions require reform because they actively harm the poor.
According to Pogge, by imposing on poorer countries a global economic order over which they have no influence, the more affluent nations are causing poverty. To eradicate poverty, therefore, we need only refrain from imposing such policies. Justice on Pogge’s view requires non-interference but not positive assistance. Herein lies the greatest merit, but also perhaps the greatest controversy, of Pogge’s argument: that he refrains from talking about positive rights and duties. Of course this is entirely deliberate, as he intends to keep the appeal of his theory as broad as possible. He shares the libertarian belief that there is a morally significant distinction between actively causing poverty and failing to prevent it, distancing himself from ‘maximalist interactional’ arguments like that of Singer. Nonetheless, he claims, the imposition of the existing global order is actively causing poverty; by cooperating with it we are actually harming the poor and not merely failing to help. We therefore have a negative duty to reform our global economic order even if we have no positive duty to assist. Significantly, one can accept this argument without denying the central libertarian tenet—‘that human rights entail only negative duties’ (72). Pogge is keen to emphasise, however, that he is not himself a libertarian (Pogge 2005), and his decision not to reject this libertarian tenet should not be taken as an endorsement of it. In establishing stringent negative duties, Pogge does not intend to suggest that there are no positive duties to aid and protect. Rather, he argues that defending positive duties is unnecessary, as it can be demonstrated that we are harming the poor and violating their rights by failing to fulfil even our negative duties. In this way, Pogge has constructed a groundbreaking argument which has wide-reaching implications for adherents of a variety of different political theories.
The primary reform that Pogge advocates to eradicate poverty is the renowned Global Resource Dividend. The fundamental principle is that ‘the global poor own an inalienable stake in all limited natural resources’ (202). Therefore, those who use a large portion of the world’s resources owe compensation to those who use very little. While maintaining that each government should still be able to control its territory, and when, if, or how a resource should be used, Pogge rejects the idea that governments have full libertarian property rights over the resources in their territory. He argues that a dividend should be paid to the poorest countries whenever a resource is extracted and put to use. Again he demonstrates that this approach ought to be acceptable to libertarians. It is implausible, he claims, to think that the current distribution of resources permitted by the global economic order does not make some worse off than others. Nozick stipulates that appropriation of worldly resources is only permitted if others are not made worse off, so even he must reject the current distribution and support the proposed compensation payments for over-use of resources (209). Implementation of the Global Resource Dividend is therefore permissible even if we have only negative duties.
These arguments will of course be familiar to anyone interested in global justice debates and the proposals for tackling world poverty, and as stated earlier they have prompted extensive discussion since the publication of the first edition. The impact this book has had cannot be overstated and any new contribution to the debate would be incomplete without reference to the arguments presented here. In recent years, the majority of writers in this field have felt obliged to address his arguments. Some have claimed that the institutional approach that Pogge favours inadequately captures what it means to violate human rights. The institutional understanding holds ‘that human-rights violations, to count as such, must be in some sense official, and that human rights thus protect persons only against violations from certain sources’ (63). One can enjoy x while being insecure in that enjoyment and one can be deprived of x in a society that is usually effective at securing such enjoyment. For Pogge, only the first of these instances is a human rights problem. This has invited criticism that the institutional account gives insufficient weight to the responsibility of individuals. It is implausible, such opponents claim, that a group of individuals engaged in slave-trading independently of any institution should not be thought of as violating human rights, and for this reason Pogge’s approach is deficient (Ashford 2007). Other critics have contested the claim that the global order is responsible for bringing about harm on such a grand scale and in the manner identified by Pogge (Risse 2005), and many more bemoan Pogge’s focus on only negative duties—concerned with identifying causal responsibility for the poverty, rather than simply the needs of the poor—as, among other things, this suggests that the affluent would have no duties to the poor provided that international trade rules were fair, and if any such duties do exist, then they are not very stringent (Cruft 2005; Patten 2005; Satz 2005; Huseby 2008).
While the institutional approach to human rights may cause some concern for libertarians, as it requires positive action to work towards institutional reform, it is Pogge’s attempt to construct an argument that appeals across the board, including to libertarians, that has most riled his critics. A theory that defends only negative duties arguably offers insufficient protection to the poor and inadequate provision for their needs when no causal link can be identified between the affluent and the world’s poorest people. As noted, Pogge has not ruled out the existence of positive duties, which would offer protection in these circumstances, but nor has he made any attempt to defend them. What his critics seem to be crying out for is an acknowledgement that positive duties cannot be so easily neglected, and that he must construct a full defence of positive duties to supplement the negative duties he has already argued for if he is to take the eradication of poverty seriously. Since Pogge indicates that he has a certain sympathy with positive duties, it may have been expected that he would turn his attentions next towards a defence of positive duties and the part they play in addressing poverty when negative duties prove inadequate. However, Pogge maintains his neutrality with regard to positive duties and fleshes out a new approach to tackling global poverty that he hopes will continue to have widespread appeal.
The new argument presented in this second edition is the basis of an additional chapter entitled ‘Pharmaceutical Innovation: Must We Exclude the Poor?’ The Global Resource Dividend advocated in the previous edition still stands as an important method by which to tackle systemic poverty and in doing so it will also contribute to reducing the incidence of mortality and morbidity. The Global Burden of Disease (GBD) is greater the worse the poverty, so any method which reduces poverty will also help to reduce the GBD. But, in addressing how poor people are excluded from pharmaceutical innovation, Pogge has offered a more direct method by which mortality and morbidity may be reduced, which will in turn help to reduce poverty. His plans for ‘improved access to medical interventions—vaccines, cures and treatments’ (223) work together with the economic reforms already argued for to improve the lives of the world’s poorest people.
Pogge identifies the conflict between the needs of poor patients, unable to pay high prices, and the needs of pharmaceutical companies to cover their research and development costs and he attempts to reconcile these conflicting needs through an ingenious reform which will help poor people while maintaining the incentives necessary for pharmaceutical innovation. This latter condition is crucial, he claims, as ‘we will reach our common and imperative goal of universal access to essential medicines either in collaboration with the pharmaceutical industry or not at all’ (224).
One of the main causes of the current exclusion of poor people from pharmaceutical innovation is the imposition of the TRIPS Agreement—Trade-Related Aspects of Intellectual Property Rights—which endorses patents to protect intellectual property rights. Furthermore, additional provisions (‘TRIPS-plus’) permit patent-holders to extend their patents beyond the original 20 years, and also act to ‘discourage, impede, and delay the manufacture of generic medicines in many other ways’ (225). Pogge objects not merely on moral grounds to the high charges that the owners of intellectual property demand, but also on the supposition that giving the poor access to pharmaceutical innovation could help to wipe out certain illnesses, which would be beneficial to all. Nonetheless, as it currently stands, affluent nations, sometimes in collusion with the governments of poorer nations, continue to act so as to deprive poor people of access to the vital medicines they need.
Pogge suggests that opponents could justify the exclusion of the poor by appealing to the natural right of an inventor to control his invention. However, he questions why this natural right should be understood on the terms of the TRIPS agreement, why it should trump the right to life of poor people, and why we should consider pharmaceutical companies to be the sole recipients of intellectual property rights when their products often develop from research conducted at universities and government-funded institutions, not to mention knowledge built up over centuries. But the most significant difficulty of defending the natural right of an inventor to his invention is the question of whether we should understand this as a right to the specific object produced (the object token), or as a right to all objects of that type. According to Pogge, even libertarians—the strongest proponents of property rights—cannot explain why the creation of a physical object would give the innovator property rights in all objects of its type. In illustration, he notes how absurd it would be to claim that if John were the first person to think of adding mushrooms to a dish in order to make it tastier he would then have a right not just to his own dish with mushrooms added, but to all such dishes. It would be just as absurd to claim that John has a right to prevent others from adding mushrooms to their own dishes without his permission, or requiring that they pay him a fee if they do so. To prevent others from doing this would be to prevent them from mixing their labour with their own resources, which libertarians cannot condone. There can be no justification for believing that the creator of a product can veto others from doing what they like with resources they justly own. If Nozick’s proviso that no one must be made worse off is to be upheld, Pogge argues, then a right to all objects of that type must be rejected. Someone who makes a claim to the type (all dishes with mushrooms added) rather than the token makes others worse off by depriving them of the opportunity to invent an object of that type without being obliged to prove that they did so independently. Even from a libertarian perspective, then, the most that pharmaceutical companies have a natural right to is the token product, and not the type. Companies in poorer countries must therefore be permitted to replicate medicines created by wealthier pharmaceutical companies, making them available at a greatly reduced price.
This is the first component of Pogge’s reform proposals: ‘that intellectual results of successful efforts to develop new essential medicines are to be provided as public goods that all pharmaceutical manufacturers anywhere may use without permission from or payment to the innovator’ (241). This would greatly improve the affordability and availability of such medicines. In addition to this, Pogge advocates a ‘full-pull plan’ for the provision of pharmaceuticals. This is a program open to all innovators whereby the first to achieve a valued innovation will be rewarded. Essentially his plan is to institute a pseudo-patent on essential medicines ‘that entitles the patent holder, during the life of the patent, to be rewarded out of public funds in proportion to the impact of the invention on the GBD’ (244). On this program, innovators would actively encourage the manufacture of their medicines by other companies, as the improved affordability and availability would mean a greater impact on the GBD, increasing the scale of their reward.
However, signing up to a ‘GBD-patent’ is entirely voluntary. While it is hoped that the incentives permitted by such a system will attract pharmaceutical companies, there are no negative ramifications for companies who decline involvement in such a scheme. Any prohibitions stem rather from the first reform proposal—that a pharmaceutical company cannot prevent other companies from recreating their invention. However, arguing that one is not entitled to prevent others from creating something that one has created oneself is not the same as arguing that one must share knowledge of that creation. Pogge is therefore unjustified in his move to the claim that intellectual results must be provided as public goods. The example of the mushroom dishes cannot explain why someone would be obliged to tell others how greatly improved dishes are when one adds mushrooms, or to point out to them which mushrooms are the best, which are poisonous and so on. A pharmaceutical company may therefore be unable to prevent others from replicating their innovation, but Pogge has offered no defence of the claim that they are obliged to share their discovery with others, and indeed such an obligation cannot be defended if Pogge is to retain his libertarian appeal. Arguably, medicines can be analysed and their chemical make-up identified, in which case pharmaceutical companies will be sharing their invention (and not just the product) with others as soon as they begin to market it. If the formula cannot be identified however, then, on Pogge’s account, there can be no obligation on the part of pharmaceutical companies to make their innovation available to poor people at affordable prices. Similarly, if an independent scientist discovers a cure for cancer but uses it to treat only his nearest and dearest rather than choosing to market it he is doing nothing wrong; he cannot be forced to share his innovation with others.
Perhaps, as Pogge is focusing on large pharmaceutical companies and medicines which are easily replicated, problems of undisclosed recipes and independent scientists pose no great threat to his argument. However, it will surely prompt criticism from his opponents. Pogge acknowledges the problem that there is no obligation for a researcher to share his invention with others even if millions die as a result, and he is committed to this position on account of his determination not to alienate libertarians. As noted earlier, much criticism has been levelled against Pogge that he does not go far enough in the duties he defends. With regard to the arguments given in the earlier part of the book: if all negative duties are fulfilled and poverty persists, do the affluent have additional duties? In the context of pharmaceuticals: if no onerous and unjustified restrictions are placed on the production of generics, and the GBD remains very high, do pharmaceutical companies have no further duties? These are questions to which Pogge has consistently refrained from answering in the negative, but his failure to respond definitively in the positive renders his theory incomplete to many of his opponents.
Nonetheless, Pogge’s achievement in presenting a case for global economic and health-system reforms that have widespread appeal and, if implemented, would dramatically reduce global poverty and the global burden of disease cannot be exaggerated, and any comprehensive defence of positive duties will tend to complement rather than compete.
My thanks to Tim Hayward for comments on an earlier draft of this review.