This post is part of a symposium on Amy Kapczynski’s essay “The Right to Medicines in an Age of Neoliberalism.” All contributions to the symposium can be found here.
The most elemental claim I make in “The Right to Medicines in an Age of Neoliberalism” is that questions of political economy should be central to the analysis and practice of contemporary human rights. I read this superb set of responses as essentially in agreement, and I will focus here on how they speak to a series of critical questions that follow—questions, most centrally, about how we might “find” political economy and to what end we deploy political economy analysis.
How might we unravel the political economy of human rights? João Biehl and Joseph Amon approach this question in sidelong fashion: they ask “where is the question of political economy?” and suggest that it should be local, at least substantially so.[1] They read me as adopting instead a “global scale of analysis,” and argue that my way of proceeding risks missing “localized, heterogenous counterforces that create their own conditions of political futurity.”[2]
Our disagreement, I think, is less about place and space than it is about the prominence that I give to legal ordering. That is in part because they misconstrue the “where” of my own intervention. I couldn’t agree more that it is important to attend to “the ways people are mobilizing in the present, making demands in the courts and on the streets or online for equality, protection, and workable infrastructures, while forging tenuous and often subversive links between themselves, the state, and the therapeutic marketplace.”[3] The strategies that I argue can help point the way toward anti-neoliberal human rights claims in fact come from activist groups in places like Brazil, South Africa, and Colombia. These groups are mobilizing and making demands just as individual litigants are, but because they aim at collective and structural change, they make different claims. They are of interest to me precisely because they are working to contest in innovative ways what these see as the structural problems of today’s right to medicines. To contest these problems, they insist, requires a different imaginary of human rights—one that brings claims in local courts about the right to medicines into conversation with claims about patent law and international trade law—domains that are in legal terms typically walled off from one another.
These advocates are precisely a kind of “counter-force,” in Biehl and Amon’s terms. They work locally and creatively, though they are also networked into a globalized activist scene. One way to read their work, in fact, is as a demand for a new conjuncture between the local and the global. This makes sense, because local and global political economy are inextricably intertwined, making any sharp distinction between the two hard to sustain. Is it prioritizing a “global scale of analysis” to argue against the authority of an international trade agreement (in this case, TRIPS), if that the agreement is a key component that structures the local formulary and pharmacy? Are activists oriented toward the global or the local when they argue in national courts or before local agencies that the right to health in their constitution requires confrontation with the monopoly power that is granted to companies in local and international law? Both, I would say, highlighting the problem with the notion that the two are readily separated.
I expect, in fact, that Biehl and Amon would agree with this, which is why in the end I read their objection about the “global” scale of my analysis to reflect more of a discomfort with the role that legal order is given in my account. Can one really understand something useful about political economy and about human rights by tracing the structural relation that legal systems inscribe between different claims? Drawing on, and contributing to, a new literature on law and political economy, as well as a rich literature on the history and politics of neoliberalism, I would argue not only that we can, but that we must, if we are to take seriously questions about the conjuncture between human rights and political economy in our neoliberal age.
The most insightful accounts of neoliberalism do not characterize it primarily as a policy program of deregulation and free markets. That frame concedes too much to the imaginary of markets as spaces beyond coercion and the state, and misses a critical aspect of the neoliberal project. The most convincing accounts—like those of Quinn Slobodian, and of Jed Purdy and David Grewal—describe it differently:
Neoliberal claims advance the market side of [the] contest in capitalist democracies between capitalist imperatives and democratic demands. The contest is persistent because of pressures that capitalist markets make on the legal and political order—pressures not just for familiar protections of property and contract, but also for a favorable return on investment and managerial authority (“freedom to manage”).… Democracy, however, makes its own demands, which can prove incompatible with capitalist imperatives and hostile to the conceptions of personhood and politics that the latter imperatives entail. Democratic citizens tend to hold a set of expectations about economic and political life that may go beyond or even contradict market logic: for instance, a reasonable level of economic opportunity, distributive fairness, workplace security, community and solidarity, and civic equality. When pressed in politics, these popular expectations become candidates for criteria of democratic legitimacy. Neoliberalism, then, takes its meaning from this contest between market imperatives and democratic demands; it names a suite of arguments, dispositions, presuppositions, ways of framing questions, and even visions of social order that get called on to press against democratic claims in the service of market imperatives.[4]
In calling for political economy analysis, Grewal, Purdy, I (and others) seek to challenge the construction of market supremacy, or the “encasement” of the market—Slobodian’s term—from the reach of democratic will-formation.[5] To call for political economy analysis in its classic sense, as we do, is to insist that the economy and politics cannot be separated. There is, in a deep sense, no such thing as the economy, or capital, in the modern era, that is not mediated through—or as Katharina Pistor recently put it, “coded” by—law.[6] Law underpins the market-making systems of property and contract, and determines the contours and limits of immaterial property such as patents. The right to health is critically informed by demands of activist and ordinary litigants—it is a circuit between such claims and legal institutions that reshape them even as they accept or deny them. Which is to say, human rights is not only a set of insurgent demands, but also a domesticating set of legal doctrines. This is not, I think, only the case in countries celebrated for their strong “rule of law” cultures. The judicialization of health in Brazil, for example, evidences a real failure of the “rule of law” in one register: as Biehl and Amon write, people litigate because they are not receiving medicines to which they are entitled. But it also shows law to have an important structuring force. People seek court judgments because they are consequential (not always, but often). Advocates seek to change the legal infrastructure of the market order because this legal infrastructure does fundamentally shape the price of medicines, the expenditures of the health system, and who can access the medicines they need to live.
My argument about the soft neoliberal tendencies of the right to health in countries like Brazil and Columbia is an argument, fundamentally, about law, and not—as Biehl and Amon suspect—about individual litigants.[7] Biehl and Amon read me as dismissive of the subversive power, and as importantly, the simple human imperative, of the hundreds of thousands of individual people bringing cases that make up the phenomenon of judicialization. I am not. Litigants in these cases speak powerfully of the need for deeper accountabilities and decommodification of the essentials of life, and they may even ultimately bring us closer to these things. I do believe that the evidence so far, as I said, “plausibly” (Biehl and Amon omit this word) suggests that the direct impact of these cases are regressive. But as I also stressed, the dynamic implications of these cases are unknown. Indeed, they are yet to be determined.
I’m arguing not that we should go back to a time when public health officials were allowed to govern without the disruptive force of judicialization, but that we should acknowledge that such a right would have to go further to have the impact supporters want. My critique is of a right to medicines that both mandates medicines without regard to their price, and refuses an encounter with the conditions that establish the price and therefore the sustainability of the enterprise. The right to medicines in local jurisdictions takes this form not because litigants wish it, but because law is more than the sum of a litigant’s wishes, and because even creative, lively eruptions often meet their end when they reach the law.[8] If I’m criticizing anyone directly, it is not Biehl and Amon, but those like Moyn who argue that human rights is a “bystander” to neoliberalism, and those judges (and also officials, for example, in ministries of health that refuse calls for compulsory licensing) who mostly have refused to consider the claims that these advocates are making.
The point is not to argue against judicialization but rather to develop an analytic that can help to explain and address its current failures. As Lisa Forman says, little has changed in the underlying political economy driving the system of medicines production and provision, either transnationally or locally.[9] People—or peoples, as Biehl and Amon would have it—need more than the right to health that they have today. They need a system, a political economy organized in their favor. And scholars and advocates need an analytic that can recognize the problem that corporate power and legal monopolies pose for a right to health. As Daniel Wei L. Wang describes, companies are inside of the process of judicialization today, exploiting it to their own ends. This is possible in part because litigants are allowed to ask for medicines, but not more fundamental systemic change—and because judges and officials have for the most part resisted claims that speak to the broader political economy of medicines that condition the implications of the right to medicines. This is especially problematic in a world where the meta-framework of international law imposes an implicit hierarchy that privileges the rights of companies. The international legal regime protects patents in a much more robust way than entitlements to care, and the local is marked by the global. Activists sometimes speak to courts not only because they find little audience among legislators or agencies, but because the prioritization of property over health suffuses legal systems in our neoliberal era, and because courts can become interesting places to challenge it—both because their orders might disrupt the international hierarchy in especially powerful ways (as I describe in the essay), and because courts are often privileged places for the articulation of legitimate claims of right.
Quinn Slobodian puts it beautifully—the underlying point here is about imperium and dominium, with imperium standing for “the world of states and sovereignty” and dominium “the world of property and ownership.”[10] What advocates are urging—and what I urge we learn from them—is that human rights can be used to challenge this order, as part of a complex set of political practices that may sometimes involve, but always exceed, courts.
How do we do political economy analysis? Here I am with Slobodian: If human rights advocacy is to take political economy seriously in this age of neoliberalism, it should indeed seek “cracks in the armor” between imperium and dominium.[11] This implies not taking a global over local perspective, but taking law and legal structures seriously, and working against the neoliberal order that has—in local and global ways—elevated the “free market” over more political and democratic means to serve human needs.
As Slobodian rightly notes, resources for this work exist in the prevailing legal order. Neoliberals did not wholly achieve what they sought. At times, the efforts of the proponents of dominium have been “shambolic,” as Slobodian puts it, worthy of the image of the poorly equipped desert Humvee he calls to mind. But there are other reasons too. The TRIPS agreement, for example, technically permits governments to override patents, even if it makes it quite difficult, not only because countries like India insisted on this flexibility, but because U.S. law itself provides for such rights, and U.S. trade objectives are meant to be established by U.S. law. And that law in turn is not only neoliberally influenced—for example, it carries with it residue of the past, such as an extraordinarily broad compulsory licensing provision that was codified during two World Wars where price gouging was a major national concern.[12] Neoliberalism never had the complete success it sought, and all across the legal landscape one can find cracks, or open new ones. The court cases being brought by advocates show precisely this. As Brinks says, activists “are capable of more structural thinking than they are often given credit for.”[13] (In my own experience, when academics describe advocates as myopic—a common claim—they are usually saying more about their own limited field of vision than about advocates.)
Forman points out how important it would be to bring these claims beyond medicines to healthcare access more generally, and this is absolutely right. She, along with Wang and Brinks, is broadly engaging a second question: to what end do we deploy political economy analysis? There are many possible ways to challenge the contemporary political economy of human rights. As Brinks says, there are many right-wing claims on human rights, and there are also right-wing attempts to gain sovereignty over markets. My interest, along with others writing here, is instead toward more egalitarian and democratic authority over markets. With many others in law and political economy circles today, I am revisiting theorists like Karl Polanyi, Ellen Wood, and Cedric Robinson to construct such an account.[14] Though I cannot say much more about it here, I will say that this approach seems broadly consonant with these comments, which in various ways ask how we might begin to decommodify essential goods, and build systems of production that are oriented to human needs and not market imperatives.
How much work can the human rights movement do to bring about an alternative political economy? Foreman, Brinks, and Wang have their doubts, and rightly so. The human rights movement (and more likely, its periphery) might point toward such an alternative, but can hardly be expected to bring it about, or probably even to be a major force in its favor unless it undergoes a radical change in shape. As Wang suggests, the human rights movement, while diverse, has not been constituted as a vehicle to demand an accountable developmental state. To reestablish the means to govern markets democratically would require, as Wang says, “macro level politics” that includes “a comprehensive long-term development agenda; winning national elections to implement it; and building broad coalitions in government and between government, capital, and civil society to resist the organized interests that are likely to oppose change.”[15] It also requires (as I have written elsewhere) a human rights that
commit[s] itself first and foremost to the building of political power. The mainstream human rights movement relied heavily on shaming and elite elaboration of norms and has rarely treated organizing among those it claimed to serve as a primary goal. But rights presuppose a claim of political wrong, and a structure of accountability to which one can make demands and that might deliver a response. The same might be said of material equality: it cannot be realized outside a structure that ‘We the People’ can govern and hold accountable.[16]
We should not expect a human rights movement that does all of the work that would be needed to build such political power. But we still might seek one that turns toward this vision of change.
And we should, I think, because it may be “difficult to move away from market fundamentalism without recourse to rights, if only because rights are the best legal handhold we have in many places to demand a different relation between politics and the market.”[17] Perhaps this is why even groups not constituted as mainstream human rights organizations—like those in Brazil and Colombia bringing the cases I write about—make claims in the idiom of rights.
Should we nonetheless turn away from courts, because they lack the expertise to adjudicate the kinds of questions at the center of political economy? Wang suggests so, but I am not convinced. Courts do take on matters of political economy, every day—they must either interpret a patent law to allow an injunction that will exclude generics from the market, or not. They cannot be neutral, even if we were to agree that courts should not exercise what lawyers call “judicial review.” (Under judicial review, courts have the power to strike laws down as unconstitutional, rather than merely to reinterpret laws in a manner that can be overridden by a legislature.) Can judicial review be part of bringing a more democratic political economy about? I doubt that the answer can be determined outside of historical and political context. In Brazil and Colombia, for example, judicial review of the right to medicines could be part of a longer arc toward a more democratic political economy. But whether it will be so, I think, depends upon a much larger effort to revise our political economy, in courts and beyond.
NOTES
[1] João Biehl and Joseph J. Amon, “The Right to Remedies: On Human Rights Critiques and Peoples’ Recourses,” Humanity blog, October 4, 2019, https://humanityjournal.org/blog/the-right-to-remedies-on-human-rights-critiques-and-peoples-recourses/ (accessed October 4, 2019).
[2] Ibid.
[3] Ibid.
[4] David Singh Grewal and Jedediah Purdy, “Law and Neoliberalism,” Law and Contemporary Problems 77, no. 1, (2015): 3-4.
[5] See David Singh Grewal, Amy Kapczynski, and Jedediah Purdy, “Law and Political Economy: Toward a Manifesto,” LPEBlog.org, November 6, 2017, https://lpeblog.org/2017/11/06/law-and-political-economy-toward-a-manifesto/ (accessed September 25, 2019).
[6] Katharina Pistor, The Code of Capital (2019).
[7] Ibid.
[8] For example, see Robert M. Cover, “Forward: Nomos and Narrative,” Harvard Law Review 97, no. 4 (1983): 1–68.
[9] Lisa Forman, “Is the Right to Medicines a Canary in the Human Rights Coalmine?” Humanity blog, October 4, 2019, https://humanityjournal.org/blog/is-the-right-to-medicines-a-canary-in-the-human-rights-coalmine/ (accessed October 4, 2019).
[10] Quinn Slobodian, “Human Rights against Dominium,” Humanity blog, October 4, 2019, https://humanityjournal.org/blog/human-rights-against-dominium/ (accessed October 4, 2019).
[11] Ibid.
[12] See Hannah Brennan, Amy Kapczynski, Christine Monahan, and Zain Rizvi, A Prescription for Excessive Drug Pricing: Leveraging Government Patent Use for Health, Yale Journal of Law and Technology 18 (2017): 275–354 .
[13] Daniel M. Brinks, “Human Rights and the Political Economy,” Humanity blog, October 4, 2019, https://humanityjournal.org/blog/human-rights-and-the-political-economy/ (accessed October 4, 2019).
[14] For a sense of those writing in this vein, see the “law and political economy” blog at LPEblog.org.
[15] Daniel Wei L. Wang, “Rights, Politics and the Political Economy of Medicines,” Humanity blog, October 4, 2019, https://humanityjournal.org/blog/rights-politics-and-the-political-economy-of-medicines/ (accessed October 4, 2019).
[16] Amy Kapczynski, “What Comes After Not Enough?” LPEBlog.org, June 11, 2018, https://lpeblog.org/2018/06/11/what-comes-after-not-enough/ (accessed September 25, 2019).
[17] Ibid.
