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Confining Pogge’s Analysis of Global Poverty to Genuinely Negative Duties

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Abstract

Thomas Pogge has argued that typical citizens of affluent nations participate in an unjust global order that harms the global poor. This supports his conclusion that there are widespread negative institutional duties to reform the global order. I defend Pogge’s negative duty approach, but argue that his formulation of these duties is ambiguous between two possible readings, only one of which is properly confined to genuinely negative duties. I argue that this ambiguity leads him to shift illicitly between negative and positive duties, and ultimately to overstate the extent of the negative ones. I also argue that recognition of this ambiguity makes it possible to draw a meaningful distinction between the relevant positive and negative duties, and that Pogge’s analysis can therefore be revised in a way that reveals substantial negative institutional duties to the global poor, albeit less extensive ones than Pogge asserts. In order to demonstrate this, I discuss two aspects of the global order that Pogge has criticized: the system of intellectual property rights in pharmaceuticals and the rights of de facto rulers to dispose of a nation’s natural resources. In each case, although I do not specify the relevant negative institutional duties precisely, I try to identify intelligible questions whose answers would reveal genuinely negative duties and show that their likely answers are distinct from the conclusions asserted by Pogge and suggested by his analysis.

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Notes

  1. This view is considered and rejected in Pogge (2007: 19–20). I will discuss the other possibilities mentioned in this paragraph in Section 2.

  2. Following Pogge, I will focus my discussion on reforms, but that is not meant to deny Pogge’s assertion that in some cases the negative duties in question can (and perhaps can only) be discharged through compensation instead.

  3. I am drawing primarily on Pogge (2004, 2007, 2010a, b). Pogge (2005a) expresses a slightly different formulation of Pogge’s view, in which he supposes that baselines of this sort may be legitimate but attempts to show that they lead to the same conclusion as the baseline he prefers in Pogge (2004, 2007, 2010a, b).

  4. It is important to recognize that Pogge does not deny that the demands of justice might go beyond this minimal conception. Rather, his claim is that any reasonable account of the demands of justice will include at least this much.

  5. I believe Patten (2005) was the first to raise an objection of this sort against Pogge’s analysis, and it has since been echoed by Gilabert (2004) (who acknowledges being influenced by Patten’s pre-publication presentation of his paper), Mieth (2008), Tan (2010), and Barry and Øverland (forthcoming). Barry and Øverland’s discussion of the issue has the most in common with mine, in which I will attempt to identify precisely where and how Pogge makes the shift from negative to positive duties, with the aim of showing how his analysis can be revised to avoid this shift and thereby yield substantial conclusions about genuinely negative duties to the poor.

  6. For extended arguments aimed at defending the stringency of extensive positive duties to the global poor, thereby providing potential support for Cohen and Satz, see Singer (1972), Shue (1980), and Unger (1999).

  7. For discussion of this phenomenon, see Scheffler (2001: 32–47). Scheffler raises some concerns about the appropriateness of this tendency, but also argues that it has such powerful phenomenological roots that we are unlikely to be able to overcome it. Later in this section I will consider concerns raised by Mieth (2008) and Lichtenberg (2010) about whether the negative institutional duties that are the focal point of Pogge’s analysis are as motivationally efficacious as traditional negative duties.

  8. Notice that even those who are committed to denying a fundamental distinction between acts and omissions typically either “argue back” to a derived distinction (as Schefller (2001: 35) puts it) or see themselves as owing an explanation for why so many find the distinction intuitively plausible. The former is sufficient to underwrite Pogge’s theoretical response, and the latter demonstrates the power of his practical response.

  9. This argument is meant to show that that once we draw a significant distinction in stringency between (1) and (2), we have good reasons to draw a similar distinction between the stringency of (3) and (4). Although this is meant to suggest that (1) and (3) are both more stringent than (2) and (4), that has not yet been established. It is possible that the shift from direct obligations to institutional obligations degrades stringency to such an extent that even if (1) is more stringent than (2), and (3) derives its stringency from (1), (3) may be no more stringent than (2). This possibility is related to objections against Pogge’s focus on negative institutional duties that are raised by Mieth (2008), Lichtenberg (2010), Schaber (2011) and Barry and Øverland (forthcoming). I will address their objections later in this section.

  10. The terminology I endorse in this paragraph is fairly standard. It coheres well, for instance, with that adopted by Gilabert (2006: 194) and Ashford (2007: 187).

  11. This occurs at Pogge (2008: 47–49). Thanks to Christian Barry for calling my attention to this passage.

  12. The phrases used to describe each of these six categories are Pogge’s.

  13. Mieth lists some additional features of traditional negative duties, but I take it that her analysis ultimately focuses on this question of demandingness. See Mieth (2008: 24–25). One issue that Mieth mentions, but does not seem to place much weight on, is the fact that traditional negative duties are perfect in the sense that they generate determinate demands, whereas Pogge’s negative institutional duties are imperfect. Ashford (2007) does an excellent job of explaining why the imperfect nature of Pogge’s negative institutional duties does not imply that they are less stringent (or less negative) than traditional negative duties.

  14. Here Lichtenberg is conceding the point encapsulated in Pogge’s example about the child in Mali.

  15. Lichtenberg (2010: 563–567) also argues that there is at least some reason to see positive duties of assistance as more significant than Pogge’s negative institutional duties because attempting to provide aid is more effective at combating the suffering associated with severe poverty than attempting to avoid harm. But she acknowledges that this is an empirical claim, and that her evidence for it is tentative at best. Moreover, I find it unclear that her tentative conclusion in favor of the efficacy of aiding over not harming follows from the considerations she discusses, and it is also not clear that she adequately considers the claims Pogge has defended about the importance of even relatively minor changes in the global structure. More importantly, I think the question of efficacy is less significant than Lichtenberg suggests. The negative duties Pogge defends involve obligations not to harm or to compensate those harmed. If it turns out that aiding is far more effective than avoiding harm, that suggests veering in the direction of compensation, not that the negative duty in question is less stringent than it would otherwise be.

  16. Lichtenberg (2010: 569–571) appears to resist this claim in the context of her discussion of Williams (1973). But I believe her analysis is fully compatible with what I am asserting here. She insists that it is a mistake to suppose one’s special responsibility for what one does entails a complete lack of responsibility for what one fails to prevent. She further suggests that we cache out these sets of responsibilities similarly, so that the responsibility not to inflict the new harms is understood as a responsibility to do one’s share to avoid harm, and the responsibility to provide assistance is similarly understood as a responsibility to do one’s share to assist. That all seems plausible (although, for an alternative view see Pogge (2005b: 80–83), but it is also consistent with the view that there is a more stringent obligation to do one’s share to avoid harm than to do one’s share to provide assistance. Lichtenberg seems to take her analysis to deny this latter claim, or at least count against it, but I reject that assessment.

  17. For discussion of the perception of this distinction, see again Scheffler (2001: 32–47).

  18. See Pogge (2008: 31–32). The point, as I see it, is that particular moral intuitions are generally granted greater epistemic authority than particular empirical ones, and perhaps rightly so.

  19. Pogge describes his idea of our core institutional duty as requiring that we “work for an institutional order and public culture that ensure that all members of society have secure access to the objects of their human rights” (Pogge 2008: 71). Moreover, in spite of Young’s suggestion to the contrary, he construes this idea of institutional order and public culture broadly (Young 2011: 141–142, Pogge 2008: 65–73).

  20. The next several sentences summarize Young (2011: 105–113).

  21. It is important to recognize that Young is not primarily discussing and objecting to Pogge’s view, but rather resisting a general approach to issues of justice and responsibility, which she takes to include his.

  22. For an example of this, see Pogge’s discussion of slavery and Jim Crow laws summarized in Section 1. Young’s concerns with respect to background conditions include both the idea that the liability model ignores important structural contributors to justice or injustice and the claim that it is committed to treating the status quo as morally neutral. Pogge’s discussion of Jim Crow laws shows that he avoids both of these pitfalls.

  23. Pogge writes, “we should think not only about such remedial measures, but also about how the injustice of the global order might be diminished through institutional reforms that would end the need for such remedial measures” (Pogge 2008: 30), and he expends far more energy and ink working out and promoting reforms than remediation. For an extended rebuttal of an earlier version of Young’s claim that Pogge is working under a liability model that commits him to a backward-looking emphasis, see Barry (2005: 112–117).

  24. This is most explicit at Young (2011: 124).

  25. See Young (2011: 142–147) for a discussion of these parameters. There she suggests that, among other things, the degree to which one has the power or ability to alleviate a particular injustice and the degree to which one has benefitted from that injustice both affect the level of responsibility one has. Interestingly, Pogge (2005b: 80) and Ashford (2007: 200) both briefly list similar considerations.

  26. Lichtenberg (2010: 577) also expresses some of these concerns.

  27. See Pogge (2008: n 82, n 102) for some suggestive remarks. This is also the position adopted explicitly by Ashford (2007: 192–193) and implied by Nussbaum (2011).

  28. For a helpful, although brief, discussion of the ways in which blame can be productive, see Nussbaum (2011: xxiv–xxv).

  29. For a more detailed presentation of the case, which perhaps makes the point more convincing, see Ashford (2007). Shei (2005) also briefly discusses a version of this sort of case, but implausibly suggests that the torturers are only violating negative duties not to harm if they have deliberately set up the “harmless torture” scheme. He does at one point mention that it might matter whether the torturers know that they are causing pain, which I take to be a more plausible consideration, but any emphasis on knowledge of the effects of one’s actions drops out of Shei’s ultimate analysis. I will discuss the significance of such knowledge shortly, in the context of a different line of objection that focuses on it directly.

  30. I do not mean to suggest that Schaber denies the importance of the knowledge condition, but he does not emphasize it in the way Barry and Øverland do.

  31. With respect to the issue of what is known, or should be known, I think it is important to recognize that a large part of Pogge’s overall project is to help people gain knowledge of the harms they are enabling, and the fact that there are relatively low-cost alternatives to enabling this harm. See, for instance, Pogge (2010a: 1–3, 2005b: 82–83).

  32. Let me emphasize that I am not endorsing objections against the legitimacy of positive duties of assistance, but instead identifying the difference between positive duty arguments and negative institutional duty arguments. The latter, I am claiming, have broader philosophical reach.

  33. She writes, “[A]nd this is my point against Pogge – positive duties are also absolutely necessary to guarantee the fulfillment of positive human rights” (Mieth 2008: 32 n26).

  34. Gilabert (2006) further defends the idea that certain positive duties are properly understood as enforceable demands of justice.

  35. As indicated earlier, Pogge’s approach trades the philosophical burden of defending the legitimacy of positive duties for the empirical burden of demonstrating harm, or at least that is the trade-off made if the approach actually is restricted to negative institutional duties.

  36. Gilabert explicitly recognizes this when, in the midst of his argument for enforceable positive duties, he acknowledges “negative duties regarding a certain object of human rights are normatively stronger than positive duties regarding the same object” (Gilabert 2004: 545). Later he reaffirms that his view “does not conflict with the thesis that negative duties are more stringent than positive ones” (Gilabert 2004: 547). Ashford (2007), as far as I can tell, is neutral on this point. She is careful to keep her endorsement of negative institutional duties separate from her argument for positive duties of assistance, which suggests that she acknowledges the greater stringency of the former, but she never commits herself explicitly.

  37. For a response to Pogge that accepts this standard but argues that Pogge greatly overstates the extent to which there are reasonable alternatives to the current global order that would significantly reduce global poverty, see Risse (2005a, b).

  38. I will use the phrases “generating poverty” and “contributing to poverty” as neutral between directly causing poverty and foreseeably enabling poverty.

  39. Barry and Øverland (forthcoming) use a similar sort of example to make a related point, although they are focused primarily on distinguishing cases in which the As directly harm the Bs from cases in which they enable harm, whereas I am emphasizing the distinction between cases in which the As either directly harm or enable harm on the one hand and cases in which they instead fail to prevent harm on the other.

  40. This claim is of course perfectly compatible with the view that the example provides enough information to judge the behavior of the As to be morally wrong or even appalling. But the point is that such a judgment, if made, must be based on the As violation of their positive duties towards the Bs.

  41. This line of analysis is inspired by Pogge (2007: 40).

  42. Here I am endorsing the response given in (Pogge 2010b: 201–205) to a concern raised by Chandhoke (2010). For a further discussion of evidentiary standards in this sort of context, see Barry (2005: 125–128).

  43. As discussed in Section 2, this is what Mieth (2008) and Lichtenberg (2010) suggest.

  44. As I hope is clear, the only part of this conclusion I am rejecting is the word “negative.” My argument is not meant to deny that whenever an institutional structure foreseeably results in a situation in which some are in severe poverty there is a duty, sometimes negative, sometimes positive, not to participate in that structure, provided there is a reasonable alternative that would foreseeably avoid or lessen the poverty.

  45. As discussed in Section 2, this sort of perspective is endorsed by Cohen (2010), Satz (2005), Mieth (2008) and Lichtenberg (2010).

  46. If successful, this will help quell worries like those expressed by Satz (2005) according to which Pogge does not fully acknowledge how difficult it is to determine the extent to which global institutions cause poverty.

  47. In this section I draw primarily on Hollis and Pogge (2008) and also on Pogge (2008: 222–261).

  48. There have been subsequent bilateral agreements that have modified and added to TRIPS, and both Pogge (2008) and Hollis and Pogge (2008) sometimes refer to the current regime as “TRIPS-plus” to acknowledge that, but for simplicity I will address only TRIPS. Nothing substantive is affected by that.

  49. It is possible that there are other elements of the global order that either encourage or discourage pharmaceutical research, and I readily concede that the analysis I am offering here does not address that possibility. This limitation is acceptable given that the aim is to figure out whether there is a negative duty to reform the TRIPS regime.

  50. For the record, it seems to me they are correct about the incentives the Health Impact Fund would create. Those incentives are part of what I take to be a very strong case for a moral obligation to institute the Health Impact Fund, or something like it. But I would nonetheless insist that if we are going to distinguish between positive and negative duties, the fact that the Health Impact Fund would provide strong incentives to discover treatments for widespread life-threatening diseases supports a positive duty to create the Fund, not a negative one.

  51. As indicated in Section 3, it is important to keep in mind that there is no special burden of proof one way or the other in making these judgments. Our conclusions should go wherever the preponderance of the evidence leads.

  52. Notice that unlimited compulsory license would effectively convert the current system into pre-TRIPS, so what is being claimed here is simply that there is some standard for compulsory license that eliminates the problem of lack of access to life-saving medications without completely undermining the entire TRIPS framework.

  53. This line of criticism is developed most fully in Pogge 2008. For a succinct statement of Pogge’s view of the problem, see Pogge 2007: 48–51.

  54. The resource privilege manifests as part of the global order insofar as courts around the world recognize and enforce property rights that result from the purchase of natural resources.

  55. For the view that Pogge overstates the extent to which these privileges affect global poverty, see Cohen (2010: 37–40).

  56. Although he does not articulate it in these terms, Wenar (2008) develops and defends a specific proposal for reforming the resource and borrowing privileges that appears to operate within the framework of the Caused Poverty Test.

  57. Pogge’s recommendations are not far from those endorsed by Wenar (2008), whose analysis I have suggested fits within the Caused Poverty Test framework. See also Wenar (2010) and Pogge (2010b: 221–231).

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Acknowledgement

I would like to thank Christian Barry and two anonymous referees for helpful comments on earlier versions of this paper.

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Daskal, S. Confining Pogge’s Analysis of Global Poverty to Genuinely Negative Duties. Ethic Theory Moral Prac 16, 369–391 (2013). https://doi.org/10.1007/s10677-012-9349-4

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