global health with justice: controlling the floodgates of
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Georgetown University Law Center Georgetown University Law Center
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2020
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, [email protected]
Lawrence O. Gostin Georgetown University - Law Center - O'Neill Institute for National and Global Health Law,
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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: [email protected].
Lawrence O. Gostin, O’Neill Institute for National and Global Health Law, Georgetown Law, McDonough Hall, Washington, DC 20001, USA. Email:
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
Advance Access publication on 8 May 2020VC The Author(s) 2020. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org
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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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