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Session: Issues with High Cost Drugs
Room: Congress Hall B
Time: Fri 16:00-17:15

Presenter: Marcos Vinício Chein Feres (Universidade Federal de Juiz de Fora. Direito Público Material)

Abstract

According to the Médecins Sans Frontières, the problem of neglected diseases is related to the lack of economic interest on the part of pharmaceutical industries in developing more effective drugs to treat diseases, such as, African sleeping sickness, malaria, Chagas disease, kala-azar, leishmaniasis, and tuberculosis. This economic stance can be explained by the fact that the majority of people who suffer from these illnesses are poor citizens from developing countries. This specific pharmaceutical market is not economically attractive for industries. In this vein, there seems to be no economic reason to invest in research and development for producing cheaper and more effective DND (drugs for neglected diseases). In fact, this scenario of a utilitarian dimension requires a substantial critique based on legal and social theory. It is not a matter of demonising the economic system, yet it is necessary to propose a theoretical basis on which to reflexively construe morally acceptable political and judicial decisions. In this context, Dworkin’s legal theory and Taylor’s critique of utilitarianism will be used as theoretical points of departure for reaffirming the potential of law as a means of changing market rationale. Firstly, Taylor’s view of social theory is that individualism, instrumental rationality and soft despotism are the three major malaises of modern society. In truth, any individual may experience a disturbing “loss of meaning in life” due to the absence of strong moral evaluation. This is compounded by the “eclipse of ends“ – badly-informed choices resulting in morally questionable goals – such as, equating personal happiness with the capacity to consume. Focussing exclusively on dubious individual “goals” creates political alienation which, in turn, may logically lead to an increasing loss of freedom caused by an absence of participation in political decision-making. Secondly, Dworkin’s proposal of law as integrity plays a relevant role in this theoretical framework, not only because he fiercely criticises the utilitarian tools used in judicial decision-making, but also because he presents a legal theory based on justice, fairness and procedural due process, in which a criterion of coherence and integrity, morally and institutionally conceived, determines “the dimension of fit” when applying the law. Taking into account Dworkin’s legal theory and Taylor’s critique of utilitarianism, how can this inefficacy to solve the problem of drugs for neglected disease be explained? Considering integrity in law and moral strong evaluation, it is natural to assert that, critically analysing the juridical protection of knowledge, patent rights have been used in order to satisfy the economic interests of the pharmaceutical industry, making it hard for poor, sick people from developing countries to have access to new drugs. This unobtrusive research is conducted in order to reconstruct the legal and political instruments which can, up to a point, interpretively reconstruct and redirect the economic rationale in pharmaceutical markets. Finally, this study will lead to the conclusion that the existing system of patent rights cannot be interpreted in terms of maintaining the absolute protection of property rights as well as satisfying the exclusive economic interests of the pharmaceutical market.

Key Terms

Economic Law and Philosophy of Law, Integrity in Law and Strong evaluation, Patent Rights, Neglected Diseases and Right to Health

Authors:

Marcos Vinício Chein Feres (Universidade Federal de Juiz de Fora. Direito Público Material)

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