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ABSTRACT
This article analyses the conflicting professional ethical demands imposed on judges to, on the one hand, faithfully apply the existing law of the land and, on the other hand, do justice in the face of urgent global challenges such as ensuring an equal access to life-saving medicines. After establishing the precise nature of the professional ethical duties of judges (as opposed to those of lawyers) and noting the tensions they face when the duty of applying the law prevents them from complying with the duty of delivering material justice in the domain of access to medicines, the article then analyses the way this issue plays out in Latin America, a región where judicially-mandated access to medicines has been common. The article concludes by arguing that the Latin American experience suggests that judges around the world should take seriously the need to find a balance between their duty of deference towards public health authorities in this domain (when this is mandated by legislation), and the duty to do justice to individuals who cannot afford live-saving medicines.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 L.O. Gostin, and others, ‘The Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development’ (2019) 393(10183) The Lancet 1857–910.
2 In the case of the Code of Conduct for United States Judges, its influence springs from the fact that it was one of the first to be adopted in the world. And, in the case of the Iberoamerican Code of Judicial Ethics, due to the fact that the latter was a regional effort involving almost all Latin American countries (I thank the anonymous reviewer for pointing out the first clarification above).
3 There are, of course, quite many lawyers who work as public employees, but this is a contingent fact, not a necessary one (as it happens with judges, who are always public officials).
4 M. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press 1986); J.H. Merryman an R. Pérez-Perdomo, The Civil Law Tradition (Stanford University Press 2020).
5 W. Simon, ‘The Ideology of Advocacy: Procedural Justice and Professional Ethics’ [1978] Wisconsin Law Review 29, 30.
6 ibid. 36.
7 ibid. 41–42.
8 As stated by the web site of the United States’s federal judicial system: ‘The Code of Conduct for United States Judges includes the ethical canons that apply to federal judges and provides guidance on their performance of official duties and engagement in a variety of outside activities’. See ‘Code of Conduct for United States Judges’ (uscourts.gov, 12 March 2019) <https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges> accessed 27 October 2022.
9 ibid.
10 The text of the Iberoamerican Code of Judicial Ethics can be found in this website: https://www.oas.org/juridico/PDFs/mesicic5_mex_ane_57.pdf
11 ibid.
12 M. Davis, ‘What can We Learn by Looking for the First Code of Professional Ethics?’ [2003] Theoretical Medicine 24, 433, provides an interesting account of the emergence of the American Bar Association’s first code of ethics, stating that: ‘The American Bar Association (ABA) adopted its first code of ethics in 1908. The title of that code –“Canons of Professional Ethics”– suggests that the ABA may have followed the American Medical Association (AMA) in choosing a title for its code that would avoid confusion with ordinary law making (“code and penalties”). But the ABA did not follow the 1903 AMA in passing on to its state associations the problem of making the code binding (or the AMA of 1847 in understanding the code as “legal deontology”). Instead, the ABA enacted a set of rules (and explanations of purpose) going beyond what law, market, and morality would otherwise require. The Canons apply to all (American) lawyers and (apparently) only to them. The ABA’s code there- fore meets all our criteria of adequacy four years ahead of the AMA code’, page 28.
13 J.M. Shaman, ‘The Impartial Judge: Detachment or Passion?’ [1996] 45 DePaul Law Review 605.
14 As we did for distinguishing between the ethical duties of judges and lawyers, in this piece we shall continue to rely on the United States’ regulations to analyse the ethical duties of judges.
15 Code of Conduct for United States Judges, 2.
16 For an analysis of the ongoing debates between legal positivism and natural law see J.L. Coleman and B. Leiter, ‘Legal positivism’ in Dennis Patterson (ed.), A companion to philosophy of law and legal theory (2nd ed., Blackwell Publishing Ltd 2010); T. Brooks, ‘Between natural law and legal positivism: Dworkin and Hegel on legal theory’ [2006] Georgia State University Law Review 23, 513; B. Bix, ‘On the dividing line between natural law theory and legal positivism’ [1999] Notre Dame Law Review 75, 1613.
17 T. Lininger, ‘Green Ethics for Judges’ (2018) 86 George Washington Law Review 3, 711.
18 ibid. 730.
19 To shed light on this point it might be useful to analyse Atiyah and Summers distinction between substantive and formal legal reasoning: P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning. Legal Theory and Legal Institutions (Clarendon Press 1987).
20 J. Adelman and M.A. Centeno, ‘Between Liberalism and Neoliberalism: Law’s Dilemma in Latin America’ in B.G. Garth and Y. Dezalay (eds.), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (University of Michigan Press 2005).
21 Damaska (n 2).
22 R. Pérez-Perdomo, Los abogados de América Latina: una introducción histórica. (Universidad Externado de Colombia 2004).
23 P. Domingo, ‘Judicialization of Politics or Politicization of the Judiciary? Recent Trends in Latin America’ (2004) 11 Democratization, 1, 104.
24 A.S. Sweet, ‘A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe’ (2012) 1 Global Constitutionalism 1, 53.
25 A. Huneeus, ‘Constitutional Lawyers and the Inter-American Court's Varies Authority’ [2016] Law & Contemp. Probs. 79, 179.
26 J. Couso, ‘The Transformation of Constitutional Discourse and the Judicialization of Politics in Latin America’ in J. Couso, A. Huneeus, and R. Sieder, Cultures of legality: Judicialization and Political Activism in Latin America (Cambridge University Press 2010); D.E.L. Medina, Teoría impura del derecho: la transformación de la cultura jurídica latinoamericana (Legis 2004).
27 A. von Bogdandy, E.F. Mac-Gregor, M.M. Antoniazzi, F. Piovesan, and X. Soley (eds.), Transformative Constitutionalism in Latin America: The Emergence of a New ius commune (Oxford University Press 2017).
28 J. Couso, ‘Latin American New Constitutionalism: A Tale of Two Cities’ in Hübner Mendes et al. (eds.), The Oxford Handbook of Constitutional Law in Latin America (Oxford University Press 2022).
29 The shift in the legal culture –or legal ideology—of many judges in the Latin American region has contributed to this, see Couso et al., 2010, but this can also be a consequence in the sea-change that is apparent in the discredit of ‘legal formalism’ in the region, see J. Roa, The Role of Constitutional Courts in Latin American Transformative Constitutionalism (Max Planck Institute for Comparative Public Law & International Law Research Paper, 2020-11).
30 O. Norheim and B.M. Wilson, ‘Health Rights Litigation and Access to Medicines: Priority Classification of Successful Cases from Costa Rica's Constitutional Chamber of the Supreme Court’ (2014) 16 Health and Human Rights Journal 2, 47.
31 ibid. 49.
32 In the opinion of the Constitutional Court, ‘if the right to life is especially protected in every modern rule of law, and consequently the right to health, any economic criterion that seeks to nullify the exercise of such rights must yield in importance because, as already indicated, without the right to life the other rights would be useless’, page. 21. Román Forastelli, M. (2014). Judicialización de la salud: revisión de los recursos de amparo relacionados con medicamentos.
33 Norheim & Wilson (n 28) 50.
34 Resolution No. 543-2008 of the Sala IV of Costa Rica’s Supreme Court, quoted by K.V. López, ‘Principales líneas jurisprudenciales en materia de derecho a la salud en Costa Rica’ (2014) 3 Cadernos Ibero-Americanos de Direito Sanitário 1, 94, 104-105.
35 See Constitutional Chamber of the Supreme Court of Justice. Resolution N° 05024 (2006). Quoted in (2007).
36 See Resolution N° 005970 (2012), cited in Lopez (n 32) 135-136.
37 M.J. Cepeda Espinosa, ‘The Judicialization of Politics in Colombia: The Old and the New’ in Rachel Sieder, Line Schjolden, and Alan Angell (eds.), The judicialization of politics in Latin America (Palgrave Macmillan 2005).
38 ibid.
39 See Decision T-395 (1998), cited in Cepeda (n 35).
40 See C.A. Pérez Fuentes, F.A. Hernández Peñaloza, K. Leal Castañeda, and D.F. Castillo Calderón, ‘Análisis jurisprudencial del derecho a la salud en Colombia’ (2019) 10 Revista Academia & Derecho 19, 87.
41 Constitutional Court of Colombia, 7 Sentencia T-859 de 2003, quoted in Defensoría del Pueblo de Colombia, Derecho a la salud en la Constitución, La Jurisprudencia y los Instrumentos Internacionales (2003), 46.
42 See Resolution N° SU-480 (1997), cited by Cepeda (n 35) 46.
43 Alicia Yamin, ‘The Right to Health: The Potential and Limits of Catalysing Systemic Change through the Courts’ in C. Hübner Mendes, R. Gargarella and S. Guidi (eds.), The Oxford Handbook of Constitutional Law in Latin America (Oxford University Press 2022).
44 ibid. 763.
45 Article 75, number 22, of the Argentinean Constitution states that: ‘The following [international instruments], under the conditions under which they are in force, stand on the same level as the Constitution, [but] do not repeal any article in the First Part of this Constitution, and must be understood as complementary of the rights and guarantees recognized therein: The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights and its Optional Protocol; the [International] Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment; and the Convention on the Rights of the Child. They may only be denounced, if such is to be the case, by the National Executive Power, after prior approval by two thirds of the totality of the members of each Chamber.’
See ‘Argentina 1853 (reinst. 1983, rev. 1994)’, (Constitute) <https://www.constituteproject.org/constitution/Argentina_1994?lang=en> accessed 27 October 2022.
46 See Bracamonte and Cassinerio (2020), p. 4.
47 ibid. 4.
48 ibid..11; Finally, in relation to the decision of the Supreme Court of Justice of the Nation -in a case of original competence- where the National State and the Province of Buenos Aires were sued, in order to grant 100% coverage of a high-cost medicine that the plaintiff claimed was necessary for the multiple sclerosis she suffered and lacked economic resources, the Court admitted the action arguing that it was applicable the reiterated doctrine regarding the right to health, the international commitments assumed by the National State, the provisions of the laws 23. 661 and 24.901, the obligations arising from the Compulsory Medical Program, the responsibility of the provincial jurisdictions in this matter, detailing in particular the responsibility of the Province of Buenos Aires, by virtue of its disability regulations and its Constitution. There it was emphasised that the criterion put forward by the defendant province, related to the fact that it is not a pathology covered by the Dirección de Política del Medicamento and therefore it is not a drug provided by the local authorities, cannot result in a direct damage to the affected person, since it would be tolerating an inequality with respect to other persons in a similar situation, but suffering from diseases contemplated by the mentioned organism, in conflict with the constitutional and legal provisions in force.
49 Bracamonte and Cassinerio (2020), op.cit., p. 14.
50 Cepeda (n 35) 99.
51 ‘“Si no, que deroguen la garantía al derecho a la vida y pongan que lo más importante son las finanzas públicas”’ (Colegio De Abogados De Chili, 17 December 2018) <https://colegioabogados.cl/si-no-que-deroguen-la-garantia-al-derecho-a-la-vida-y-pongan-que-lo-mas-importante-son-las-finanzas-publicas/> accessed 27 October 2022.
52 J. Greene, ‘Foreword: Rights as Trumps?’ [2018] Harvard Law Review 132, 28.
53 See A. Kapczynski, ‘The Right to Medicines in an Age of Neoliberalism’ (2019) 10 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 1, 79, 6.
54 This last point is also noted by Kapczynski, who notes that, in spite of the social-justice aims behind, the move towards judicially mandated access to medicines may be actually regressive: ‘A right to medicines imbricated into this regime is plausibly regressive: it places significant strain on healthcare budgets, redistributes upwards, and provides medicines on terms largely dictated by one of the most profitable industries in the world. This right to medicines, in short, reflects and even intensifies a neoliberal approach to medicines. It mandates discrete individual relief, but rarely sees, much less disrupts, the underlying legal logics and structures that help produce radical health inequities.’ Kapczynski (n 51) 83.
55 ibid. 90.
56 M. Galanter, ‘Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law & Society Review 1, 95.
57 C.M. Vargas-Pelaez, M.R.M. Rover, L. Soares et al., ‘Judicialization of access to medicines in four Latin American countries: a comparative qualitative analysis’ [2019] International Journal of Equity Health 18, 68.
58 ibid.
59 ibid. 7.
60 ibid. 9.
61 Norheim and Wilson (n 28).
62 Vargas-Pelaez et al. (n 55) 10.
63 Norheim and Wilson (n 28); In our material of 37 randomly selected cases which concerned access to medicines and were brought to the Constitutional Chamber of the Supreme Court, we found that 2.7% fell into priority group 1 (highest priority), 27% in group II, 48.6% in group III, and 21.6% in group IV (see Table 2). Only three of the drugs are already on the official WHO essential drugs list.
64 ibid. 4. This agreement Norheim and Wilson hope, should allow the Constitutional Chamber to ‘make better-informed health rights decisions that benefit from previously unavailable technical medical information and input from relevant stakeholders. To include all stakeholders in mechanisms for systematic and impartial consideration of the medical evidence, the costs, and the distributional impact of introducing new medications is an important first step toward making the priority-setting process fairer.’
65 Yamin (n 42).
66 ibid.
67 D. Brinks and Varun Gauri, ‘The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights’ (2014) 12 Perspectives on Politics 2.
68 Vargas-Pelaez et al. (n 55) 9.
69 A.I. Arrieta-Gomez, ‘Realizing the Fundamental Right to Health through Litigation: The Colombian Case’ (2018) 20 Health and Human Rights 1, 133, 136.
70 See Vargas-Pelaez et al. (n 55) 11.