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Legal, Moral and Political Determinants within the Social Determinants of Health: Approaching Transdisciplinary Challenges through Intradisciplinary Reflection

Legal, Moral and Political Determinants within the Social Determinants of Health: Approaching... Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 PUBLIC HEALTH ETHICS VOLUME 13 ISSUE 1 2020 41–47 41 • • • Legal, Moral and Political Determinants within the Social Determinants of Health: Approaching Transdisciplinary Challenges through Intradisciplinary Reflection John Coggon, Centre for Health, Law, and Society and Bristol Population Health Science Institute, University of Bristol Corresponding author: John Coggon, University of Bristol Law School, 8-10 Berkeley Square, Bristol BS8 1HH, UK. Tel.: þ44 117 428 2001; Email: john.coggon@bristol.ac.uk This article provides a critical analysis of ‘the legal’ in the legal determinants of health, with reference to the Lancet–O’Neill report on that topic. The analysis shows how law is framed as a fluid and porous concept, with legal measures and instruments being conceived as sociopolitical phenomena. I argue that the way that laws are grounded practically as part of a broader concept of politics and evaluated normatively for their instrumental value has important implications for the study of law itself. This, in turn, has implications for how we approach the transdisciplinary ambitions that form a key part of the report’s recommendations to enhance law’s capacity to promote better, more equitable population health at local, national, international and global levels. This Lancet Commission articulates the crucial The Legal Determinants of Health role of law in achieving global health with justice, through legal instruments, legal capacities, and and the Lancet–O’Neill Report: institutional reforms, as well as a firm commit- Background and Framing ment to the rule of law. The Commission’s aim is to enhance the global health community’s under- This article critically explores ‘the legal’ in the legal standing of law, regulation, and the rule of law as determinants of health, as represented in the Lancet– effective tools to advance population health and O’Neill Institute of Georgetown University equity. (Gostin et al., 2019: 1857) Commission report (the Lancet–O’Neill report) entitled The Legal Determinants of Health: Harnessing the Power The Lancet–O’Neill report advances recommenda- of Law for Global Health and Sustainable Development tions that together aim to extend and refine law’s cap- (Gostin et al., 2019). The report, whose lead author is acity to protect health, promote well-being and reduce the pioneering public and global health lawyer health inequalities within and across nations. The Lawrence Gostin, is a commendable contribution to Commission argues that this capacity may be realized efforts better to shape structural factors that impact through three functions that law might lend to the meth- the public’s health at local, national, international and ods of social coordination and collective activity that are global levels. It is a critical work that looks to the power central to assuring the conditions for good and equitable of law: law’s strong determinative effects, for better and health in ways that cannot be realized through individ- for worse, on our social, governmental, commercial and ual, or individual-focused, efforts (cf Verweij and physical environments; and their consequent impacts Dawson, 2009). These arise from: first, law’s prospective on health and health inequalities. And the report is an function in establishing standards and norms to guide aspirational and directive work: it looks to law’s place different actors and agencies; second, its methods of dis- and potential in public and global health agendas to pute resolution that clarify and enforce obligations, as achieve fairer and healthier societies. In the authors’ words: well as serving policy agendas through strategic litigation doi:10.1093/phe/phaa009 Advance Access publication on 3 May 2020 V C The Author(s) 2020. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 42 COGGON efforts; and third, its functions in strengthening the gov- To examine the points of synergy and disconnect be- ernance of public and private institutions (Gostin et al., tween law(s), justice and healthy outcomes, it is useful to 2019: 1863–1868). explore and explain how law itself is conceptualized by One component of the capacity building that the re- the Lancet–O’Neill Commission. In the remainder of port recommends concerns the links between the study this article, I will argue that as the characterization of of law and its consequent incorporation in public and law moves from a ‘purer’ concept to something more global health agendas, research and practice. In particu- porous and varied, so its disciplinary boundaries weaken lar, the report emphasizes the problems caused by dis- and its internal coherence, or disciplinary purity, dimin- ciplinary silos and by the relative rarity of expertise that ishes. I accordingly refer to the idea of law: following spans law and public/global health: (after a fashion) Amartya Sen’s approach to understand- ing justice through plural grounding and non-ideal the- Researchers and practitioners in law and in health ory (cf Sen, 2009), I consider it both normatively and have traditionally worked in quite distinct ways. practically preferable not to work with a singular, pure In the medical profession, as in the wider public, understanding or recognition of the power of law account of law, but rather to allow for legal determinants to drive behavioural and social change is lacking. to cover a range of radically distinct ideas and forms. I [.. .] For their part, lawyers can be protective of will show that whilst laws are explained in the Lancet– their turf and unwilling to acknowledge the limits O’Neill report as having distinguishing features both of their subject-matter expertise. This silo men- formally and institutionally, they are ultimately con- tality leads to missed opportunities for teaching, ceived as sociopolitical phenomena: they are part of a research, practice, and problem-solving. (Gostin et al., 2019: 1898) broader array of mechanisms that represent sociopolit- ical power and its exercise. Given such concerns about monodisciplinary isola- tionism, my aim here is to contribute reflections from The Idea of Law in the Lancet–O’Neill the perspective of a legal scholar with interests in the Report philosophy, practice and politics of public and global health. I do so with reference to the different character- On its face, the Lancet–O’Neill report works with a con- izations of law (and thus legal determinants) within the tained concept of law that, whilst socially contingent, Lancet–O’Neill report and with reference to the ration- may be represented as appealing to features of a pure alizations of its recommendations concerning practical or prototypical understanding of what law and legal sys- and academic engagement with law. The repeated char- tems are, and how they impact society. The Commission acterization of law as a tool—as per the opening quota- writes: tion in this article—presents law as something to be The term law throughout is used to mean legal understood within an agenda that spans sectors and sys- instruments such as statutes, treaties, and regula- tems, rather than as a concept or practice that may use- tions that express public policy, as well as the fully—meaningfully, even—be isolated or understood public institutions (eg, courts, legislatures, and in purely abstract terms. This leads to the view that agencies) responsible for creating, implementing, ‘the legal’ in the legal determinants of health is best con- and interpreting the law. By establishing the rules and frameworks that shape social and economic ceived as a fluid and porous idea. It requires to be under- interactions, laws exert a powerful force on all the stood in context and over time. Insofar as this permits an social determinants of health. (Gostin et al., 2019: intradisciplinary legal perspective, it is one that would 1857) shape the study of law as something that itself embraces varied and contingent methods and points of reference. In this initial framing, law is presented as a distinct Such an understanding of law suggests that lawyers’ ‘subject-matter expertise’ must extend, on its own terms, and particularly potent source of power, control and beyond technical and procedural questions concerning coordination. And the distinguishing features of laws, laws themselves. Whilst it would be complacent to allow and of legal actors and agencies, are ones that we might this to nullify concerns about ‘protecting turf’ or associate with concepts found in socially grounded the- obstacles to working across professions and disciplines, ories of legal positivism; notably, those focused on the a broader and less cohesive appreciation of law as a single domestic legal systems of sovereign states (cf Hart, 1994). discipline lends itself well to the transdisciplinary ambi- Domestic legal systems are commonly perceived as tions of the Lancet–O’Neill report. exhibiting stronger practical and normative coherence Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 LEGAL, MORAL AND POLITICAL DETERMINANTS OF HEALTH 43 than is found in international law and legal systems. This reside) with governmental actors and agencies (legal is so in particular given national systems’ (generally) and otherwise) (see also Coggon, 2012: chapter 11). The placing of legal determinants within political clearer constitutional bases, the more practically and conceptually coherent nature of their institutional determinants is most starkly represented through the arrangements and the consequently greater rigour of Lancet–O’Neill Commission’s self-linking to the report of the earlier Lancet–University of Oslo Commission’s their claims to authority and effectiveness. report on Global Governance for Health (the Lancet– International legal measures and instruments might be Oslo report) (Ottersen et al., 2014). The Lancet– said to be ‘less like law’ than domestic ones: they exhibit, O’Neill report says that it ‘builds on’ (Gostin et al., so this position holds, fewer of the features and institu- 2019: 1859) the work of that earlier Commission. In so tional arrangements with reference to which we identify doing, it explains the overlaps between law and govern- something as law. ance, whilst emphasizing that governance has a wider Despite, therefore, its opening representation of law, embrace: ‘Law is central to governance, but governance and thus what would constitute legal determinants, as goes beyond law’ (Gostin et al., 2019: 1877). We may the report progresses, we come to find the embrace of accept this categorization, whilst also accepting that broader, less pure ideas of law. This is both reasonable the plural understandings of law within the Lancet– and unsurprising given the Lancet–O’Neill O’Neill report mean that law itself is a diffuse and rang- Commission’s focus on global health. As noted, accom- ing idea rather than in an entirely separable analytical modation of measures and instruments within inter- (and practical) class with its own firm borders. national law that do not enjoy all of the defining Governance is a broad and multifarious categorization; trappings of domestic laws accords with many jurispru- law is a graded and pluralistic one that sits within it. dential traditions and assumptions (Fidler, 2008; The overall reach of the ‘more diffuse concept’ Coggon, 2014). It conforms too with the distinct (Gostin et al., 2019: 1877) of governance is explained emphases and framing in Gostin’s definition of global by the Lancet–O’Neill Commission’s quoting Thomas health law in his independent work, which is more firmly Weiss and Ramesh Thakur’s definition, which was rooted in concepts of governance (Gostin, 2014), as con- adopted by the Lancet–Oslo Commission. They charac- trasted with Gostin and Lindsay Wiley’s definition of terize global governance as: (national) public health law, which more rigidly focuses on prototypical concepts of law and legal form (Gostin The complex of formal and informal institutions, and Wiley, 2016). It bears stressing, having made these mechanisms, relationships, and processes be- tween and among states, markets, citizens, and points, that the Lancet–O’Neill report’s overall emphasis organisations, both intergovernmental and non- on the functions of law (outlined in the opening section governmental, through which collective interests of this paper) and its instrumentalist approach to under- on the global plane are articulated, rights and standing and evaluating law mean that there is an em- obligations are established, and differences are brace of governance within the legal determinants of mediated. (Thakur and Weiss, 2006) health, both at domestic and international/transnation- al/global levels (see also Coggon et al., 2017: chapter 4). The Lancet–Oslo report directly addresses the political determinants of health. It ‘examines power disparities ‘The Legal’ within the Political and dynamics across a range of policy areas that affect health and that require improved global governance’ Determinants of Health (Ottersen et al., 2014: 630). The Lancet–O’Neill The approach taken in the Lancet–O’Neill report, which Commission emphasizes how law may provide greater does not limit its concerns to structural and regulatory rigour to efforts in governance for health (note especially features that are born of strict legal form, means that the the third function of law listed in the opening section of conceptual reach of legal determinants both pervades this article). However, the legal in the legal determinants and is pervaded by matters that are not strictly law, but of health cannot be approached only with understanding which by analysis require to be understood if law itself is of ‘pure’ instances of law. This is because, first, legal to be understood. I will argue that this means that legal governance is part of governance writ large. Second, determinants are integrated within the political determi- the idea of legal itself enjoys an expansive and pluralistic nants of health: that is the overall aspects of power, con- understanding. And third, law (writ narrow)’s strengths, trol and coordination that reside (or arguably should weaknesses and ultimate capacity cannot be understood Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 44 COGGON without an understanding of the wider social and gov- report promotes the idea of law as an area of expertise ernance contexts. Legal determinants may be less diffuse that contains distinct approaches and methods. These than all of the political determinants, but they are still naturally fall within the traditions of critical, socio- diffuse and of the same kind. Such framing of legal deter- legal studies (for discussion of socio-legal approaches in the context of health and law, see Farrell et al., minants is reinforced if we consider both how the 2017). Reflecting on law in this way supports the Lancet–O’Neill Commission invites law to be under- stood as a grounded, sociopolitical phenomenon, and Lancet–O’Neill Commission’s transdisciplinary ambi- tions within public and global health law: how its normative evaluations of and prescriptions for law are determined by extra-legal, moral considerations. Building the empirical evidence base for effective Regarding the first point, the Lancet–O’Neill report health laws first requires building disciplinary urges that laws be conceived as lived, evolving, empirical bridges: mutual understanding, collaboration, common terminologies, and an appreciation of phenomena: they cannot be understood in the abstract how different skill sets can be applied to public or in isolation, and their meaning is found and changes health problems. It also requires genuine interdis- in context and over time. The Commission writes: ciplinary (or even transdisciplinary) research, drawing on the expertise of legal scholars, epi- Enacting a good health law is only the first step towards building an effective legal environment. demiologists, clinical scientists, policy analysts, Laws that are defined as on the books must be behaviour change experts, and anthropologists, supported by effective processes for their drafting amongst others, working together. (Gostin et al., 2019: 1901) (including public participation), implementa- tion, enforcement, monitoring, evaluation, and ultimately their revision or repeal where neces- However, wider philosophical as well as empirical sary[.] (Gostin et al., 2019: 1894) understanding is needed. Moving to law’s normative foundations and our critical evaluations of it, I would If a scholar’s or practitioner’s understanding of law urge that the above ideas be taken further, both as were limited to contained (siloed) expertise, she could regards intradisciplinary reflection on law, and in terms not on this count understand law. Expertise in law of the disciplinary reach that public and global health requires capacities that extend beyond technical legal agendas aim to achieve. Burris et al. (2016: 139) give knowledge; a point that supports calls for transdiscipli- some attention to ‘normative framing and analysis’, nary approaches to public and global health law. In a and the Lancet–O’Neill report has justice and commit- study cited in the Lancet–O’Neill report, Burris et al. ments to democratic ideals of human rights and the rule (2016: 138) demonstrate how public health law does of law written through to its core. However, a much not exist exclusively ‘within the professional jurisdiction more prominent role for (political) philosophy and eth- of lawyers’. In explaining their ideas, they focus in par- ics requires to be built into agendas at all levels for the ticular on legal epidemiology, which examines the popu- public’s health. This becomes clear when we see how the lation health effects of law, legal practice and policy (so foundational and directive idea of ‘good laws’ within the again not limited to a pure account of law) by combining Lancet–O’Neill report is not to be understood by narrow the practical and epistemological resources and tradi- reference to legal form or procedure, or the technical tions of law with those of epidemiological research. soundness of legal argument. Nor is it to be understood Such transdisciplinarity is crucial, but in developing by reference (say) to natural law positions that rest on the capacity for this, there are important lessons too for necessary conceptual links between ‘central cases of law’ legal scholarship and studies in an intradisciplinary and theories of morality (cf e.g. Finnis, 1980). sense. The indications in the report of what law is, and In contradistinction with jurisprudential studies that what is required to study and practise law, undermine focus on bare, formalist concerns of what law is and how any meaningful case that might be made for narrow or it works, or a core concept of law defined by its necessary siloed approaches to legal studies. Insofar as this is not relationship with morality, the Lancet–O’Neill already recognized and reflected in practice (and there Commission drives its conceptual understandings of will be variation within and across different academic law in the ways explained above, whilst evaluating and traditions; cf Bartie, 2010; Siems and Mac Sı ´thigh, establishing the proper use of law by reference to moral 2012), law as a discipline itself requires to be (re)config- ideas found in health and justice. The report operates on ured in a way that is not (in principle) consistent with its the basis that law may be variously understood, but it is being a silo. At the levels of analysis and practice, the consistently approached with regard to its utility; its Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 LEGAL, MORAL AND POLITICAL DETERMINANTS OF HEALTH 45 strengths as a tool. The moral evaluations themselves scientific evidence base may be crucial to the rigour of might be seen as built on, and indeed constrained by, public health law, but the work of legal determinants fundamental democratic ideals embodied by human must have broader foundations than (say) epidemiology rights and the rule of law; foundational concepts in legal (Horton, 2018; Venkatapuram and Bibby, 2018): it philosophy. But they draw from health-focused consid- extends as well to include bases in approaches to identi- erations in justice too. These might be characterised as fying and responding to concerns through the methods deriving, for example, from claims that health is a fun- of political philosophy; in debates on justice. And— damental moral value (see e.g. Gostin, 2008; Gostin and again in keeping with the Lancet–O’Neill report’s rec- Wiley, 2016: chapter 1). And they might—additionally ommendations—such forms of analysis will need to or alternatively—be seen as being informed by accounts continue over time and be subject to revision in their of the moral foundations of public health practice, which detail as circumstances and understandings change. tend to be rooted in combined concerns for protecting and improving health and reducing unfair health Conclusions: Laws as Means; Better, inequalities (see Coggon and Viens, 2017). In relation to each of these, the moral determinants in health lead to Fairer Global Health as an End claims about governments’ responsibilities for the pub- Seeing the legal determinants of health as part of the lic’s health; i.e. they represent (possible) moral founda- political determinants, seeing the drivers for change as tions to the political (including legal) determinants of coming from separable moral concerns and working health and require to be analyzed and evaluated within with a fluid and porous concept of ‘the legal’ mean such a framing (see Coggon, 2012: 277–283). Crucially, that pure instances of law arise to be measured alongside both in terms of legal studies and public and global other methods and systems of governance. Nothing in health agendas, the normative foundations are not these observations serves to deny that law may bring understood by exclusive reference to the internal work- moral as well as practical authority and underpinnings ings or epistemologies of a ‘pure’ understanding of law. to questions of social ethics, including those concerning In keeping with the Lancet–O’Neill Commission’s the public’s health: that is why the Lancet–O’Neill report rationales and recommendations, my push for the sig- (rightly) identifies the vital importance of promoting nificance of philosophical contributions is one that fundamental ideals such as the rule of law, equality be- invites their inclusion in concert with approaches and fore the law, human rights and the empowering effect of insights from other disciplines (see further Coggon, the right to health. Nevertheless, the framing in the re- 2012: chapter 7). This includes disciplines within the port provides that the sovereignty of nation states is the health sciences, but also other sources of critical theory, source of their authority, including their law-making and areas such as anthropology, political sciences and authority. It is from that authority, the Commission sociology. Moral and broader philosophical argumenta- argues, that states’ duty to protect and promote the pub- tion alone will not be sufficient to motivate sociopolitical lic’s health arises; a duty that is underscored by the in- (including legal) changes to the determinants of (ill) ability of individuals acting alone to do so (Gostin et al., health (Gostin, 2008; Coggon, 2014), but it is necessary 2019: 1862–1863). Accordingly, the report can be seen as to the rigour of the claims that would underpin imper- separating normative ideas such as health as a moral atives to improve health (howsoever understood) and value, social justice and the rule of law on the one advance particular concepts of equity. And this necessity hand, from more practically grounded points where does not end with abstract claims about justice: as indi- laws and their effects are seen as empirical aspects of cated in other papers in this journal issue, critical atten- sociopolitical realities on the other hand. In these latter tion is required in identifying the lens through which we regards, empirical observations and analysis of power scrutinize questions of equity in relation to public and dynamics and influence provide real-world context global health, and in looking at the implications and and themselves shape laws; and our understandings of consequences (intended and unintended) of different law. social situations, policies and proposals for intervention The broad range of approaches to comprehending and reform (Gangoli, 2020; Hawkes and Buse, 2020; and analysing ‘the legal’ in the legal determinants of McGuinness and Montgomery, 2020). The aspirations health is well captured in the following summary: towards global health with justice require ethical justifi- cation that can both challenge harmful aspects of the The most just and effective public health laws status quo and support arguments for what should re- share the following four core characteristics: place it, and within what normative constraints. A they are evidence based, equity promoting, Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 46 COGGON multisectoral, and supported by good govern- Conflict of Interest ance[.] (Gostin et al., 2019: 1882) None declared. Seeing laws in broad terms, and evaluating them by reference to their effects rather than (say) their form or References institutional (or even constitutional) foundations, lends Bartie, S. (2010). The Lingering Core of Legal itself naturally to the inter- and transdisciplinary points Scholarship. 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Legal, Moral and Political Determinants within the Social Determinants of Health: Approaching Transdisciplinary Challenges through Intradisciplinary Reflection

Coggon, John
Public Health Ethics , Volume 13 (1) – Apr 1, 2020
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Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 PUBLIC HEALTH ETHICS VOLUME 13 ISSUE 1 2020 41–47 41 • • • Legal, Moral and Political Determinants within the Social Determinants of Health: Approaching Transdisciplinary Challenges through Intradisciplinary Reflection John Coggon, Centre for Health, Law, and Society and Bristol Population Health Science Institute, University of Bristol Corresponding author: John Coggon, University of Bristol Law School, 8-10 Berkeley Square, Bristol BS8 1HH, UK. Tel.: þ44 117 428 2001; Email: john.coggon@bristol.ac.uk This article provides a critical analysis of ‘the legal’ in the legal determinants of health, with reference to the Lancet–O’Neill report on that topic. The analysis shows how law is framed as a fluid and porous concept, with legal measures and instruments being conceived as sociopolitical phenomena. I argue that the way that laws are grounded practically as part of a broader concept of politics and evaluated normatively for their instrumental value has important implications for the study of law itself. This, in turn, has implications for how we approach the transdisciplinary ambitions that form a key part of the report’s recommendations to enhance law’s capacity to promote better, more equitable population health at local, national, international and global levels. This Lancet Commission articulates the crucial The Legal Determinants of Health role of law in achieving global health with justice, through legal instruments, legal capacities, and and the Lancet–O’Neill Report: institutional reforms, as well as a firm commit- Background and Framing ment to the rule of law. The Commission’s aim is to enhance the global health community’s under- This article critically explores ‘the legal’ in the legal standing of law, regulation, and the rule of law as determinants of health, as represented in the Lancet– effective tools to advance population health and O’Neill Institute of Georgetown University equity. (Gostin et al., 2019: 1857) Commission report (the Lancet–O’Neill report) entitled The Legal Determinants of Health: Harnessing the Power The Lancet–O’Neill report advances recommenda- of Law for Global Health and Sustainable Development tions that together aim to extend and refine law’s cap- (Gostin et al., 2019). The report, whose lead author is acity to protect health, promote well-being and reduce the pioneering public and global health lawyer health inequalities within and across nations. The Lawrence Gostin, is a commendable contribution to Commission argues that this capacity may be realized efforts better to shape structural factors that impact through three functions that law might lend to the meth- the public’s health at local, national, international and ods of social coordination and collective activity that are global levels. It is a critical work that looks to the power central to assuring the conditions for good and equitable of law: law’s strong determinative effects, for better and health in ways that cannot be realized through individ- for worse, on our social, governmental, commercial and ual, or individual-focused, efforts (cf Verweij and physical environments; and their consequent impacts Dawson, 2009). These arise from: first, law’s prospective on health and health inequalities. And the report is an function in establishing standards and norms to guide aspirational and directive work: it looks to law’s place different actors and agencies; second, its methods of dis- and potential in public and global health agendas to pute resolution that clarify and enforce obligations, as achieve fairer and healthier societies. In the authors’ words: well as serving policy agendas through strategic litigation doi:10.1093/phe/phaa009 Advance Access publication on 3 May 2020 V C The Author(s) 2020. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 42 COGGON efforts; and third, its functions in strengthening the gov- To examine the points of synergy and disconnect be- ernance of public and private institutions (Gostin et al., tween law(s), justice and healthy outcomes, it is useful to 2019: 1863–1868). explore and explain how law itself is conceptualized by One component of the capacity building that the re- the Lancet–O’Neill Commission. In the remainder of port recommends concerns the links between the study this article, I will argue that as the characterization of of law and its consequent incorporation in public and law moves from a ‘purer’ concept to something more global health agendas, research and practice. In particu- porous and varied, so its disciplinary boundaries weaken lar, the report emphasizes the problems caused by dis- and its internal coherence, or disciplinary purity, dimin- ciplinary silos and by the relative rarity of expertise that ishes. I accordingly refer to the idea of law: following spans law and public/global health: (after a fashion) Amartya Sen’s approach to understand- ing justice through plural grounding and non-ideal the- Researchers and practitioners in law and in health ory (cf Sen, 2009), I consider it both normatively and have traditionally worked in quite distinct ways. practically preferable not to work with a singular, pure In the medical profession, as in the wider public, understanding or recognition of the power of law account of law, but rather to allow for legal determinants to drive behavioural and social change is lacking. to cover a range of radically distinct ideas and forms. I [.. .] For their part, lawyers can be protective of will show that whilst laws are explained in the Lancet– their turf and unwilling to acknowledge the limits O’Neill report as having distinguishing features both of their subject-matter expertise. This silo men- formally and institutionally, they are ultimately con- tality leads to missed opportunities for teaching, ceived as sociopolitical phenomena: they are part of a research, practice, and problem-solving. (Gostin et al., 2019: 1898) broader array of mechanisms that represent sociopolit- ical power and its exercise. Given such concerns about monodisciplinary isola- tionism, my aim here is to contribute reflections from The Idea of Law in the Lancet–O’Neill the perspective of a legal scholar with interests in the Report philosophy, practice and politics of public and global health. I do so with reference to the different character- On its face, the Lancet–O’Neill report works with a con- izations of law (and thus legal determinants) within the tained concept of law that, whilst socially contingent, Lancet–O’Neill report and with reference to the ration- may be represented as appealing to features of a pure alizations of its recommendations concerning practical or prototypical understanding of what law and legal sys- and academic engagement with law. The repeated char- tems are, and how they impact society. The Commission acterization of law as a tool—as per the opening quota- writes: tion in this article—presents law as something to be The term law throughout is used to mean legal understood within an agenda that spans sectors and sys- instruments such as statutes, treaties, and regula- tems, rather than as a concept or practice that may use- tions that express public policy, as well as the fully—meaningfully, even—be isolated or understood public institutions (eg, courts, legislatures, and in purely abstract terms. This leads to the view that agencies) responsible for creating, implementing, ‘the legal’ in the legal determinants of health is best con- and interpreting the law. By establishing the rules and frameworks that shape social and economic ceived as a fluid and porous idea. It requires to be under- interactions, laws exert a powerful force on all the stood in context and over time. Insofar as this permits an social determinants of health. (Gostin et al., 2019: intradisciplinary legal perspective, it is one that would 1857) shape the study of law as something that itself embraces varied and contingent methods and points of reference. In this initial framing, law is presented as a distinct Such an understanding of law suggests that lawyers’ ‘subject-matter expertise’ must extend, on its own terms, and particularly potent source of power, control and beyond technical and procedural questions concerning coordination. And the distinguishing features of laws, laws themselves. Whilst it would be complacent to allow and of legal actors and agencies, are ones that we might this to nullify concerns about ‘protecting turf’ or associate with concepts found in socially grounded the- obstacles to working across professions and disciplines, ories of legal positivism; notably, those focused on the a broader and less cohesive appreciation of law as a single domestic legal systems of sovereign states (cf Hart, 1994). discipline lends itself well to the transdisciplinary ambi- Domestic legal systems are commonly perceived as tions of the Lancet–O’Neill report. exhibiting stronger practical and normative coherence Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 LEGAL, MORAL AND POLITICAL DETERMINANTS OF HEALTH 43 than is found in international law and legal systems. This reside) with governmental actors and agencies (legal is so in particular given national systems’ (generally) and otherwise) (see also Coggon, 2012: chapter 11). The placing of legal determinants within political clearer constitutional bases, the more practically and conceptually coherent nature of their institutional determinants is most starkly represented through the arrangements and the consequently greater rigour of Lancet–O’Neill Commission’s self-linking to the report of the earlier Lancet–University of Oslo Commission’s their claims to authority and effectiveness. report on Global Governance for Health (the Lancet– International legal measures and instruments might be Oslo report) (Ottersen et al., 2014). The Lancet– said to be ‘less like law’ than domestic ones: they exhibit, O’Neill report says that it ‘builds on’ (Gostin et al., so this position holds, fewer of the features and institu- 2019: 1859) the work of that earlier Commission. In so tional arrangements with reference to which we identify doing, it explains the overlaps between law and govern- something as law. ance, whilst emphasizing that governance has a wider Despite, therefore, its opening representation of law, embrace: ‘Law is central to governance, but governance and thus what would constitute legal determinants, as goes beyond law’ (Gostin et al., 2019: 1877). We may the report progresses, we come to find the embrace of accept this categorization, whilst also accepting that broader, less pure ideas of law. This is both reasonable the plural understandings of law within the Lancet– and unsurprising given the Lancet–O’Neill O’Neill report mean that law itself is a diffuse and rang- Commission’s focus on global health. As noted, accom- ing idea rather than in an entirely separable analytical modation of measures and instruments within inter- (and practical) class with its own firm borders. national law that do not enjoy all of the defining Governance is a broad and multifarious categorization; trappings of domestic laws accords with many jurispru- law is a graded and pluralistic one that sits within it. dential traditions and assumptions (Fidler, 2008; The overall reach of the ‘more diffuse concept’ Coggon, 2014). It conforms too with the distinct (Gostin et al., 2019: 1877) of governance is explained emphases and framing in Gostin’s definition of global by the Lancet–O’Neill Commission’s quoting Thomas health law in his independent work, which is more firmly Weiss and Ramesh Thakur’s definition, which was rooted in concepts of governance (Gostin, 2014), as con- adopted by the Lancet–Oslo Commission. They charac- trasted with Gostin and Lindsay Wiley’s definition of terize global governance as: (national) public health law, which more rigidly focuses on prototypical concepts of law and legal form (Gostin The complex of formal and informal institutions, and Wiley, 2016). It bears stressing, having made these mechanisms, relationships, and processes be- tween and among states, markets, citizens, and points, that the Lancet–O’Neill report’s overall emphasis organisations, both intergovernmental and non- on the functions of law (outlined in the opening section governmental, through which collective interests of this paper) and its instrumentalist approach to under- on the global plane are articulated, rights and standing and evaluating law mean that there is an em- obligations are established, and differences are brace of governance within the legal determinants of mediated. (Thakur and Weiss, 2006) health, both at domestic and international/transnation- al/global levels (see also Coggon et al., 2017: chapter 4). The Lancet–Oslo report directly addresses the political determinants of health. It ‘examines power disparities ‘The Legal’ within the Political and dynamics across a range of policy areas that affect health and that require improved global governance’ Determinants of Health (Ottersen et al., 2014: 630). The Lancet–O’Neill The approach taken in the Lancet–O’Neill report, which Commission emphasizes how law may provide greater does not limit its concerns to structural and regulatory rigour to efforts in governance for health (note especially features that are born of strict legal form, means that the the third function of law listed in the opening section of conceptual reach of legal determinants both pervades this article). However, the legal in the legal determinants and is pervaded by matters that are not strictly law, but of health cannot be approached only with understanding which by analysis require to be understood if law itself is of ‘pure’ instances of law. This is because, first, legal to be understood. I will argue that this means that legal governance is part of governance writ large. Second, determinants are integrated within the political determi- the idea of legal itself enjoys an expansive and pluralistic nants of health: that is the overall aspects of power, con- understanding. And third, law (writ narrow)’s strengths, trol and coordination that reside (or arguably should weaknesses and ultimate capacity cannot be understood Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 44 COGGON without an understanding of the wider social and gov- report promotes the idea of law as an area of expertise ernance contexts. Legal determinants may be less diffuse that contains distinct approaches and methods. These than all of the political determinants, but they are still naturally fall within the traditions of critical, socio- diffuse and of the same kind. Such framing of legal deter- legal studies (for discussion of socio-legal approaches in the context of health and law, see Farrell et al., minants is reinforced if we consider both how the 2017). Reflecting on law in this way supports the Lancet–O’Neill Commission invites law to be under- stood as a grounded, sociopolitical phenomenon, and Lancet–O’Neill Commission’s transdisciplinary ambi- tions within public and global health law: how its normative evaluations of and prescriptions for law are determined by extra-legal, moral considerations. Building the empirical evidence base for effective Regarding the first point, the Lancet–O’Neill report health laws first requires building disciplinary urges that laws be conceived as lived, evolving, empirical bridges: mutual understanding, collaboration, common terminologies, and an appreciation of phenomena: they cannot be understood in the abstract how different skill sets can be applied to public or in isolation, and their meaning is found and changes health problems. It also requires genuine interdis- in context and over time. The Commission writes: ciplinary (or even transdisciplinary) research, drawing on the expertise of legal scholars, epi- Enacting a good health law is only the first step towards building an effective legal environment. demiologists, clinical scientists, policy analysts, Laws that are defined as on the books must be behaviour change experts, and anthropologists, supported by effective processes for their drafting amongst others, working together. (Gostin et al., 2019: 1901) (including public participation), implementa- tion, enforcement, monitoring, evaluation, and ultimately their revision or repeal where neces- However, wider philosophical as well as empirical sary[.] (Gostin et al., 2019: 1894) understanding is needed. Moving to law’s normative foundations and our critical evaluations of it, I would If a scholar’s or practitioner’s understanding of law urge that the above ideas be taken further, both as were limited to contained (siloed) expertise, she could regards intradisciplinary reflection on law, and in terms not on this count understand law. Expertise in law of the disciplinary reach that public and global health requires capacities that extend beyond technical legal agendas aim to achieve. Burris et al. (2016: 139) give knowledge; a point that supports calls for transdiscipli- some attention to ‘normative framing and analysis’, nary approaches to public and global health law. In a and the Lancet–O’Neill report has justice and commit- study cited in the Lancet–O’Neill report, Burris et al. ments to democratic ideals of human rights and the rule (2016: 138) demonstrate how public health law does of law written through to its core. However, a much not exist exclusively ‘within the professional jurisdiction more prominent role for (political) philosophy and eth- of lawyers’. In explaining their ideas, they focus in par- ics requires to be built into agendas at all levels for the ticular on legal epidemiology, which examines the popu- public’s health. This becomes clear when we see how the lation health effects of law, legal practice and policy (so foundational and directive idea of ‘good laws’ within the again not limited to a pure account of law) by combining Lancet–O’Neill report is not to be understood by narrow the practical and epistemological resources and tradi- reference to legal form or procedure, or the technical tions of law with those of epidemiological research. soundness of legal argument. Nor is it to be understood Such transdisciplinarity is crucial, but in developing by reference (say) to natural law positions that rest on the capacity for this, there are important lessons too for necessary conceptual links between ‘central cases of law’ legal scholarship and studies in an intradisciplinary and theories of morality (cf e.g. Finnis, 1980). sense. The indications in the report of what law is, and In contradistinction with jurisprudential studies that what is required to study and practise law, undermine focus on bare, formalist concerns of what law is and how any meaningful case that might be made for narrow or it works, or a core concept of law defined by its necessary siloed approaches to legal studies. Insofar as this is not relationship with morality, the Lancet–O’Neill already recognized and reflected in practice (and there Commission drives its conceptual understandings of will be variation within and across different academic law in the ways explained above, whilst evaluating and traditions; cf Bartie, 2010; Siems and Mac Sı ´thigh, establishing the proper use of law by reference to moral 2012), law as a discipline itself requires to be (re)config- ideas found in health and justice. The report operates on ured in a way that is not (in principle) consistent with its the basis that law may be variously understood, but it is being a silo. At the levels of analysis and practice, the consistently approached with regard to its utility; its Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 LEGAL, MORAL AND POLITICAL DETERMINANTS OF HEALTH 45 strengths as a tool. The moral evaluations themselves scientific evidence base may be crucial to the rigour of might be seen as built on, and indeed constrained by, public health law, but the work of legal determinants fundamental democratic ideals embodied by human must have broader foundations than (say) epidemiology rights and the rule of law; foundational concepts in legal (Horton, 2018; Venkatapuram and Bibby, 2018): it philosophy. But they draw from health-focused consid- extends as well to include bases in approaches to identi- erations in justice too. These might be characterised as fying and responding to concerns through the methods deriving, for example, from claims that health is a fun- of political philosophy; in debates on justice. And— damental moral value (see e.g. Gostin, 2008; Gostin and again in keeping with the Lancet–O’Neill report’s rec- Wiley, 2016: chapter 1). And they might—additionally ommendations—such forms of analysis will need to or alternatively—be seen as being informed by accounts continue over time and be subject to revision in their of the moral foundations of public health practice, which detail as circumstances and understandings change. tend to be rooted in combined concerns for protecting and improving health and reducing unfair health Conclusions: Laws as Means; Better, inequalities (see Coggon and Viens, 2017). In relation to each of these, the moral determinants in health lead to Fairer Global Health as an End claims about governments’ responsibilities for the pub- Seeing the legal determinants of health as part of the lic’s health; i.e. they represent (possible) moral founda- political determinants, seeing the drivers for change as tions to the political (including legal) determinants of coming from separable moral concerns and working health and require to be analyzed and evaluated within with a fluid and porous concept of ‘the legal’ mean such a framing (see Coggon, 2012: 277–283). Crucially, that pure instances of law arise to be measured alongside both in terms of legal studies and public and global other methods and systems of governance. Nothing in health agendas, the normative foundations are not these observations serves to deny that law may bring understood by exclusive reference to the internal work- moral as well as practical authority and underpinnings ings or epistemologies of a ‘pure’ understanding of law. to questions of social ethics, including those concerning In keeping with the Lancet–O’Neill Commission’s the public’s health: that is why the Lancet–O’Neill report rationales and recommendations, my push for the sig- (rightly) identifies the vital importance of promoting nificance of philosophical contributions is one that fundamental ideals such as the rule of law, equality be- invites their inclusion in concert with approaches and fore the law, human rights and the empowering effect of insights from other disciplines (see further Coggon, the right to health. Nevertheless, the framing in the re- 2012: chapter 7). This includes disciplines within the port provides that the sovereignty of nation states is the health sciences, but also other sources of critical theory, source of their authority, including their law-making and areas such as anthropology, political sciences and authority. It is from that authority, the Commission sociology. Moral and broader philosophical argumenta- argues, that states’ duty to protect and promote the pub- tion alone will not be sufficient to motivate sociopolitical lic’s health arises; a duty that is underscored by the in- (including legal) changes to the determinants of (ill) ability of individuals acting alone to do so (Gostin et al., health (Gostin, 2008; Coggon, 2014), but it is necessary 2019: 1862–1863). Accordingly, the report can be seen as to the rigour of the claims that would underpin imper- separating normative ideas such as health as a moral atives to improve health (howsoever understood) and value, social justice and the rule of law on the one advance particular concepts of equity. And this necessity hand, from more practically grounded points where does not end with abstract claims about justice: as indi- laws and their effects are seen as empirical aspects of cated in other papers in this journal issue, critical atten- sociopolitical realities on the other hand. In these latter tion is required in identifying the lens through which we regards, empirical observations and analysis of power scrutinize questions of equity in relation to public and dynamics and influence provide real-world context global health, and in looking at the implications and and themselves shape laws; and our understandings of consequences (intended and unintended) of different law. social situations, policies and proposals for intervention The broad range of approaches to comprehending and reform (Gangoli, 2020; Hawkes and Buse, 2020; and analysing ‘the legal’ in the legal determinants of McGuinness and Montgomery, 2020). The aspirations health is well captured in the following summary: towards global health with justice require ethical justifi- cation that can both challenge harmful aspects of the The most just and effective public health laws status quo and support arguments for what should re- share the following four core characteristics: place it, and within what normative constraints. A they are evidence based, equity promoting, Downloaded from https://academic.oup.com/phe/article/13/1/41/5828364 by DeepDyve user on 14 July 2022 46 COGGON multisectoral, and supported by good govern- Conflict of Interest ance[.] (Gostin et al., 2019: 1882) None declared. Seeing laws in broad terms, and evaluating them by reference to their effects rather than (say) their form or References institutional (or even constitutional) foundations, lends Bartie, S. (2010). The Lingering Core of Legal itself naturally to the inter- and transdisciplinary points Scholarship. 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