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Global Health with Justice: Controlling the Floodgates of the Global Health with Justice: Controlling the Floodgates of the

Upstream Determinants of Health through Evidence-Based Law Upstream Determinants of Health through Evidence-Based Law

John Coggon Centre for Health, Law, and Society; University of Bristol Law School, John.Coggon@bristol.ac.uk

Lawrence O. Gostin Georgetown University - Law Center - O'Neill Institute for National and Global Health Law,

gostin@law.georgetown.edu

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Public Health Ethics, 1-5. Vol. 13, Issue 1, Pp. 4–9.

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Global Health with Justice: Controlling theFloodgates of the Upstream Determinantsof Health through Evidence-Based Law

John Coggon , Centre for Health, Law, and Society and Bristol Population Health

Science Institute, University of Bristol

Lawrence O. Gostin, O’Neill Institute for National and Global Health Law,

Georgetown Law

John Coggon (to whom correspondence should be addressed), Centre for Health, Law, and Society, University of Bristol Law School, University of Bristol, 8-10

Berkeley Square, Bristol BS8 1HH, UK. Email: john.coggon@bristol.ac.uk.

Lawrence O. Gostin, O’Neill Institute for National and Global Health Law, Georgetown Law, McDonough Hall, Washington, DC 20001, USA. Email:

gostin@law.georgetown.edu.

This article introduces a special issue on the legal determinants of health, following the publication of the Lancet–

O’Neill Institute of Georgetown University Commission’s report on the subject. We contextualize legal

determinants as a significant and vital aspect of the social determinants of health, explain the work of the

Lancet–O’Neill Commission and outline where consequent research will usefully be directed. We also introduce

the papers that follow in the special issue, which together set out in greater detail the work of the Commission and

critically engage with different aspects of the report and the application of its findings and recommendations.

Going Upstream to See How the

Floodgates Work

The idea of upstream causes is a prevailing metaphor of

the public health community. Upstream interventions

include preventing injury and disease, assuring the con-

ditions in which people can be healthy and safe and

addressing the key structural factors that lead to avoid-

able and unfair health inequalities. It is when we look

‘upstream’ that we find the most effective, efficient and

equitable place for interventions for the public’s health.

In practice, however, there are significant challenges in

instituting population-level interventions rather than

reacting once injury and disease have occurred.

Geoffrey Rose explained the difficulty in gaining pub-

lic and political support for public health, in what he

powerfully articulated as the ‘population paradox’

(Rose, 1981, 1985). Rose posited that small changes in

risk behaviour may have a major impact on population

health but only have marginal impact for any given in-

dividual. For individuals, this relates in part to questions

of motivation and priority: why worry (say) about how

much fat, salt or sugar producers put into food, if the

harms that they will cause are probabilistic, silently ac-

cumulative, and will anyway not materialize until some

point in the future? As Rose and others have recognized,

our understanding in this area cannot be limited to con-

siderations of individual-level action. Research in social

epidemiology has shown why it is mistaken, practically

and philosophically, to treat responsibility for health as a

purely individual pursuit (Venkatapuram, 2010). And

this leads to further challenges that are well categorized

by reference to the social determinants of health

(Commission on the Social Determinants of Health,

2008). Overarching social determinants theses have

opened up a ranging subset of questions, focused on

different sorts of social determinants, including educa-

tion, housing, social safety nets and more.

Amongst these, commercial determinants of health

have become a vital lens through which to explore popu-

lation health and safety. Given the practices and power of

many commercial actors (e.g. tobacco, alcohol, food and

petrochemical), public health scholars have critically

examined the implications for the public’s health (see,

e.g. McKee and Stuckler, 2018). For societal organiza-

tions generally, scholars have asked how governance for

doi:10.1093/phe/phaa011

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health can become a shared value and agenda (see, e.g.

Davies et al., 2014; Ottersen et al., 2014). And for govern-

ments, analysts have challenged contexts wherein atten-

tion to the short-term preferences of voters, or being

beholden to influential actors—such as providers of eco-

nomic and other forms of support—trumps concerns

for benefits to the public’s health that will only materi-

alize sometime after terms in office will have expired

(see, e.g. Ottersen et al., 2014; Raphael, 2015; Greer

et al., 2017). Public health protection requires a long-

term horizon (cf Coggon, 2020a).

Given the profundity of these and related challenges,

which are made all the more complex in international

and global contexts, leadership and coordinated efforts

are required in the structures and conditions that can

create positive, equitable health outcomes and opportu-

nities (Gostin, 2014). Within the imagery of going up-

stream, it is important to identify the points at which the

flow may be controlled, stemmed and redirected: the

‘floodgates’ that the most powerful actors in society

may open or close. Thanks to epidemiological research,

we can imagine the flows of causal factors—positive and

negative—that influence the incidence of disease

amongst different populations within and across

nations. Crucially, many of these are shaped by political

and legal superstructures and frameworks. National and

international laws—and broader concepts of govern-

ance—have a unique and vital place in the machinery

that, for better or worse, controls the floodgates that

determine what happens to the people living ‘down the

river’. Law, both in its more refined senses and as it

stands alongside the related idea of governance, is an

enormous part of upstream social determinants. If it is

used effectively, with good evidence, and consistently

with fundamental human rights and the rule of law, it

has a central role in assuring public and global health

with justice. This is why scholars, activists, experts and

leaders are directing interest towards the legal determi-

nants of health, in the words of the Lancet–O’Neill

Institute of Georgetown University Commission on

Law and Global Health (Gostin et al., 2019).

The Lancet–O’Neill Report: Law’s

Power as a Determinant of Health

Outcomes and Equity

Legal scholars’ interest in public and global health law

has been growing considerably over the past 20 years,

tracking furrows alongside comparable developments in

public and global health ethics (cf Kass, 2004). As this has

happened, such scholars have become increasingly inter-

ested to promote transdisciplinary understandings, so

that experts can work across the boundary lines of dis-

ciplinary and professional customs and traditions: this is

about expanding the expertise, capacities and under-

standing of the legal profession and of other groups

(see e.g. Burris et al., 2016). A landmark development

within public and global health law agendas is the recent

Lancet–O’Neill Institute of Georgetown University

Commission report: The Legal Determinants of Health:

Harnessing the Power of Law for Global Health and

Sustainable Development (Gostin et al., 2019).

The Lancet–O’Neill report explains conceptually and

practically how law may be used as an upstream factor in

the social determinants of health; used to achieve better,

fairer conditions for the public’s health. The report sets

out how laws can empower individuals and commun-

ities and provide authority for governments, public

agencies and international organizations to act to serve

the common good. Laws found aims and goals and

structure governance and practice. Crucially, the report

explores how law’s power can be either to the benefit or

detriment of fair and healthy environments and govern-

ance. The Lancet–O’Neill Commission does not invite

uncritical reverence for law. Laws that are discriminatory

or violate human rights can harm individuals and under-

mine population-based health. Nor does the

Commission suppose that legal measures are always

the most efficient, or that legal ideals—such as the rule

of law or respect for human rights—are always realized.

Nevertheless, the report spells out and exemplifies the

key links between law and governance and law’s effect in

assuring authority to activities for global health with

justice. And the report stresses that good law and good

ethics require strong examination of the scientific evi-

dence and respect for human rights.

For the report to lead to the outcomes that it envi-

sages, necessarily much work remains to be done. It is for

this reason that the O’Neill Institute’s World Health

Organization (WHO) Collaboration on Global Health

Law hopes to sign a memorandum of understanding

with the WHO to establish a standing Commission on

Global Health Law. The standing Commission’s work

will involve different communities who are, or who

could be, involved in public and global health efforts.

The complexity of the challenges has already been noted.

Their diversity, breadth and detail add to this. If we are to

achieve fairer, healthier societies, multiple contingencies

need to be accounted for at local, regional, national,

international and global levels. The efforts cover

domains that intersect but also will diverge at times on

specificities. A core part of achieving global health with

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justice is in attending to the motivations that direct the

uses we choose to make of law and governance for health.

Consideration of such questions is at the core of the

papers in this special issue of Public Health Ethics, which

we hope will promote wider-reaching research on how

the challenges in achieving health with justice might be

realized.

Exploring Assuring Justice in Global

Health Research and Practice

Rather than relate its goals to narrow concepts of legality,

the Lancet–O’Neill report advances an agenda where law

in its different forms might serve health agendas. The

Commission advocates for law’s place in wider aims to

achieve global health with justice. These aims may be

related to two prevalent values within public health eth-

ics: better overall population health and diminished lev-

els of health inequities between different communities

and groups within societies. Health inequities are evi-

dent not simply amongst countries but within them. In

giving effect to these aims, we need to be attentive to

problems of inadvertently compounding, rather than

ameliorating, injustice and disadvantage, a significant

practical challenge in the context of complex public

health challenges. And we likewise need to recognize

that both in abstract and detailed senses, disagreements

will arise on what constitute justifiable methods and

aims of governance, whether for health or in relation

to other important social values (Coggon, 2012: Part II).

The following papers, which build on presentations

and discussions at a launch event for the report hosted at

the Centre for Health, Law, and Society, University of

Bristol, UK, contribute to explorations of these issues.

The issue opens with an overview of the Lancet-O’Neill

report by four of its authors: Jenny Kaldor, Lawrence

Gostin, John Monahan and Katie Gottschalk. Their

paper describes the composition of the Lancet–O’Neill

Commission and explains the background, rationale,

approach, findings and arguments in the report itself.

A clear vision emerges of the need for coherent and ac-

tionable understandings of law and what it may do; how

laws link to efforts that might promote greater equity;

and how realization of the report’s ambitions requires

constructive, collaborative efforts with colleagues and

partners from across communities and professional

and disciplinary backgrounds (Kaldor et al., 2020).

Within the spirit of constructive collaboration, the

overview is followed by a critical analysis by Sarah

Hawkes and Kent Buse that examines health inequities

by reference to gender. Hawkes and Buse look to

possibilities for achieving ‘synergistic benefits’ by

approaching public and global health (law) with atten-

tion to systemic and overlapping points of advantage

and disadvantage. Notably, health, gender and law share

the quality of being socially constructed. Hawkes and

Buse’s ideas are framed with reference to intersectional-

ity, the ways that gender itself determines behaviours

and norms (with direct, consequent implications for

health) and how gender is embedded within institutions.

They are critical of the comparable ways in which law,

like health research, may formally be blind to gender

whilst demonstrably compounding injustices. Insofar

as this manner of critique speaks to understandings of

global health with justice, they highlight the sophistica-

tion required in cross-disciplinary research efforts to

provide further depth and detail to the aims expressed

in the Lancet–O’Neill report (Hawkes and Buse, 2020).

Hawkes and Buse’s focus on gender continues in the

two subsequent papers, which further invite critical at-

tention and detail in debates on what it means, in prac-

tice, to strive towards global health with justice. First,

Geetanjali Gangoli’s contribution looks to systematized

injustices that are manifested in legal framings of, and

responses to, gender-based violence. Gangoli draws

from her research on these matters in India and the

UK. The gender-based critique exposes how problems

may emanate from the law and invites careful consider-

ation of how laws might effectively be reformed—and

implemented—to create greater equity and respect for

basic rights (Gangoli, 2020).

Sheelagh McGuinness and Jonathan Montgomery’s

paper also builds on the Lancet–O’Neill Commission’s

representation of law as a powerful force that can both

harm and serve public and global health efforts. In their

paper, the focus is on legal regulation and framings of

abortion, and the consequent impacts on girls’ and

women’s health and other rights, and the care that they

might receive. Their paper again serves to highlight the

intricacy required of analyses of law as a determinant of

(ill) health and injustice, and the complexity of equity in

public and global health. Their analysis also provides

practical explanations of how legal measures might be

developed in efforts to promote greater justice

(McGuinness and Montgomery, 2020).

In the final paper, John Coggon provides an analysis of

the idea of law and ‘the legal’ within the Lancet–O’Neill

report. This article aims to explore the concept of trans-

disciplinary legal research by engaging in intradiscipli-

nary reflection on the discipline of law itself. Coggon’s

arguments draw from the instrumental nature of law

within public and global health practice, and also to

the broad reach of what counts as law, whether in

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domestic or international legal systems. It is hoped

through this contribution that the Commission’s aims

to break through disciplinary silos might be realized, in

part, through approaches to legal studies that themselves

do not see law as a contained or singular idea. By seeing

law as a means, rather than an end in itself, the paper also

underscores the importance of the need to explore fur-

ther how justice can and should motivate (public and

global health) policy (Coggon, 2020b).

The Lancet–O’Neill report is an important agenda-

setting document. We hope that the following discus-

sions will advance its agenda further. It is vital that, as a

community, scholars with interests in public and global

health ethics and law help explain the complexities and

challenges that we face, and how these speak back to the

practical arguments that we would make in aiming to

address them. Efforts to improve and generate fairer

conditions for the public’s health, locally, nationally

and globally, require us to broaden and deepen our

understandings. It is for all of us to build on the current

momentum if we are to achieve the vision of better, more

equitable population health.

Acknowledgements

This special issue was produced following a launch event

for the Lancet–O’Neill Commission’s report on The

Legal Determinants of Health, hosted by the Centre for

Health, Law, and Society at the University of Bristol, UK,

on 29 October, 2019: ‘Mapping the Path to Global

Health with Justice: A Critical Discussion of Social

Structures, Health Inequities, and the Legal Determinants

of Health’. The event was supported by the University of

Bristol Law School’s Centre Fund.

Funding

JC is pleased gratefully to acknowledge that his contri-

butions to this work were made possible through the

Tackling Root Causes Upstream of Unhealthy Urban

Development consortium, award reference: MR/

S037586/1, supported by the UK Prevention Research

Partnership, which is funded by the British Heart

Foundation, Cancer Research UK, Chief Scientist

Office of the Scottish Government Health and Social

Care Directorates, Engineering and Physical Sciences

Research Council, Economic and Social Research

Council, Health and Social Care Research and

Development Division (Welsh Government), Medical

Research Council, National Institute for Health

Research, Natural Environment Research Council,

Public Health Agency (Northern Ireland), The Health

Foundation and the Wellcome Trust.

Conflict of Interest

None declared.

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