Part II: Analysing the Issues
3.2 The Concept of Morality and its Applicability to Norm Conflicts in
3.2.3 The Application of the Principle of Generic Consistency in the Context
Rights to Health and Life
The first part of this chapter, analysing the relationship between international human rights law, and international trade and IP law, found that because different international treaty regimes are functionally detached from each other, a clear legal hierarchy between trade rules and human rights cannot be established. Similarly, international human rights law does not provide sufficient clarification on issues arising from intra-regime conflicts between the human right to IP and the fundamental human rights to life and health. With respect to the vital importance of the human rights to life and health for the realisation of a dignified standard of living, and in order to scrutinise the justification of the current international patent regime in the next chapter, the second part of this chapter analyses moral philosophical principles, aiming to provide guidance on whether the superiority of rights protecting fundamental human interests can be ethically established. In this regard, it is proposed that based on the concept of human dignity, it can be argued that certain human rights, especially those that protect
323 Gewirth A, ‘Is Cultural Pluralism Relevant to Moral Knowledge?’ (1994) 11 Social Philosophy &
Policy 22, 27.
175 human freedom and well-being, are to be prioritised over less-essential rights, such as the right to IP.
To support this argument, the first part of this analysis provided an evaluation of the scope of the concept of morality, to establish whether there is a general understanding of what is considered to constitute moral goodness. To this end, sub-chapter 3.2.1.3 indicated that moral goodness, or morally right conduct, is commonly equated with the promotion of human happiness, which in turn can be considered to entail human well-being,324 as well-being constitutes a main prerequisite for the pursuit of happiness, or, in other words, the most basic form of happiness. As morality also requires an act being other-regarding and not simply performed in the actor’s self-interests, moral conduct exists in those acts that advance the well-being of other persons. Differences between the various streams of moral philosophy can be identified in the way they approach how morality should be achieved. A notable difference can be identified when comparing utilitarianism with Gewirthian ethics. For the utilitarian, moral conduct is that which brings about the greatest surplus of happiness, for the greatest number of persons. However, recognising that different types of happiness cannot be horizontally compared with each other, as the parameters that actually generate happiness for individual persons are subjective, it seems more logical to follow the Gewirthian concept of needs, prioritising those human needs that are most essential for human well-being. This concept, moreover is in accordance with the concept of human dignity which stipulates that there is a certain core value attached to humanity which must not be denied.
This analysis then explored the existence and applicability of a supreme principle of morality – i.e. a moral principle that supports the prioritisation of certain rights above any other considerations – by scrutinising the Kantian ‘Categorical Imperative’ and the Gewirthian ‘Principle of Generic Consistency’. Both principles share distinct commonalities in that they both acknowledge the inherent value of all human beings by stipulating that all persons must be regarded as ends in themselves. They are further closely related to the Golden Rule, as all three principles emphasise that other persons ought to be treated in the same way as one wishes to be treated by them. As this rational consideration of the equal worth of all persons lies at the heart of morality, the
324 Little IMD (n 251) 39.
176 Categorical Imperative and the PGC can both be regarded as providing fundamental moral principles. A supreme moral principle, however, needs to be justified in itself.
While the differences between the content of the Categorical Imperative and the PGC are marginal, the main distinction between the two principles is the way in which their applicability is derived. For Kant, the applicability of the Categorical Imperative stems from duty, i.e. the duty to abide by valid moral rules. This, however, leaves the question of where that duty comes from. Further, by only stipulating that human beings shall never be treated as mere means, Kant does not establish measures to evaluate what type of interests are to be prioritised in situations of conflict, which can arise even where all parties concerned are treated as ends in themselves. Gewirth, in comparison, bases the PGC on agency and the universally necessary requirements for purposive action. In doing so he manages to determine that rational logic demands agents to accept that all agents have the same rights simply based on the virtue of their agency.
While it may be submitted that due to the close similarity between the Categorical Imperative and the PGC, the Categorical Imperative could also be based on human agency, by actually employing human agency as the determining factor, Gewirth can establish that there exists a hierarchy of rights prioritising the most essential needs for agency over second-order needs. Consequently, the greatest emphasis is placed on life itself, granting superiority to all goods that are necessary to sustain life.325 The PGC is therefore not only in itself justified as the supreme moral principle, but further establishes which interests ought to be prioritised in situations of conflict.
Acknowledging that the basic or generic needs of human agency likewise constitute the most basic preconditions for a human life in dignity, the PGC can be employed to evidence the superior importance of protecting human dignity. Consequently, by considering that denying the PGC is to contradict one’s very own agency, it can also be suggested that denying the PGC is to contradict one’s own human dignity.326 The PGC therefore provides a rational moral justification for the fundamental concept of human dignity. This connection to human dignity is of particular importance for this thesis, because human rights are derived from the dignity inherent to all human beings, as elaborated above in 3.1.1. As a result, it is proposed that the PGC can be utilised as
325 Gewirth A, Reason and Morality (n 209) 62-63.
326 Beyleveld D and Brownsword R (n 218) 110.
177 a means of identifying and prioritising those human rights that are most important for human dignity over less essential rights.327
The PGC can then be employed as the basis for providing a positive answer to Research Question 2:
Are there valid moral principles that can be utilised to justify the prioritisation of the right to health over contradictory provisions of international trade law and patent law?
By providing that all human agents have equal rights to the generic needs necessary for agency, the PGC is in accordance with the basic considerations of egalitarian ethics. By deriving the PGC from the fundamental requirements for human agency and purposive action, Gewirth can further establish that the PGC is in itself justified and therefore may reasonably constitute the supreme principle of morality. By applying the needs-based conceptualisation of the PGC to the concept of human dignity, the moral principle can be utilised to address challenges of norm-conflicts in the legal domain. Considering that human dignity, as recognised by all major human rights instruments, is intrinsic to human existence, the basic rights emphasised by the PGC cannot be denied, so that it is applicable regardless of personal opinions or acceptance.
Thus, for Gewirth generic rights are of such importance that they exist independently from any culture or community,328 and thereby exist independently from their legal recognition. Furthermore, the recognition that human rights shall provide protection against wrongs that no human being should experience, by providing limitations to the power of governments, indicates the existence of legally recognised values that are superior to any other considerations.329 The present analysis thus indicates that the protection of the most fundamental human needs imposes moral obligations that are binding irrespective of personal beliefs. It is the unconditional universal necessity of those fundamental needs that further elevates the requirement to adhere to such moral principles above any contradictory legal obligations. As the purpose of law may arguably be seen in the regulation of human behaviour by way of reinforcing moral obligations, the question arises of whether morally flawed laws can be regarded as
327 cf. ibid 86.
328 Gewirth A, Reason and Morality (n 209) 74.
329 cf. Little IMD (n 251) 27 and 29.
178 legitimate.330 It thus follows that legal norms ought to be in accordance with valid moral rules protecting fundamental human interests. Therefore, it is sensible to suggest that the PGC, and in particularly the rights to freedom and well-being, should constitute the standard against which the legitimacy of all other laws is scrutinised.331
3.3 Concluding Remarks
As indicated at the outset of this chapter, it is essential for the examination of the justification of the international patent regime in the next chapter, to establish the parameters against which this justification can be scrutinised. To this end, the first part of this chapter analysed the existence of a legal hierarchy under international law, which prioritises either human rights or trade/IP concerns in cases of norm conflicts, concluding that such a hierarchy currently cannot be established. For this reason, the second part of this chapter considered whether other considerations support the prioritisation of certain rights, against which the justification of the international patent regime can be examined, by analysing moral and ethical concepts. The analysis concluded that the needs-based hierarchy, established by Gewirth in his derivation of the Principle of Generic Consistency, suggests the superiority of those rights that are most essential for the realisation and protection of human life and well-being. It is therefore proposed that when the concept of basic human needs is applied to the concept of human dignity, the PGC can be utilised to morally justify the prioritisation of those human rights that protect human dignity over provisions of international trade law and patent law. Thus, for the purpose of the analysis of the justification of the international patent regime – with a particular reference to the patentability of medical products – human rights that are most essential for human dignity are considered of greater importance than TRIPS and TRIPS-Plus patent laws. Therefore, this thesis claims priority to the right to health, based on moral and ethical considerations.
Consequently, in the next chapter, the justification of the international patent regime is scrutinised, inter alia, against its compliance with the right to health.
330 Ehrenberg KM (n 215) 82-83.
331 Jowitt J (n 226) 83.
179