Abstract
Health-care goods are goods with peculiar properties, and where they are scarce, societies face potentially explosive distributional conflicts. Animated public and academic debates on the necessity and possible justice of limit-setting in health care have taken place in the last decades and have recently taken a turn toward procedural rather than substantial criteria for justice. This article argues that the most influential account of procedural justice in health-care rationing, presented by Daniels and Sabin, is indeterminate where concrete properties of rationing institutions are concerned. Such properties inscribe substantial norms into institutions. These norms can derive validity only from democratic majority decisions, which must be seen as an instance of pure procedural justice. We therefore have to move the discussion to a meta-level and ask how concrete properties of institutions are being chosen. I suggest four criteria for sufficiently democratic institutional design choice and conclude that as institutional properties are likely to have effects on the resulting distribution of health care, design choices should be empirically informed and taken both democratically and deliberately.
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Notes
Whether health-care goods that are not publicly available should remain tradeable on the market is a controversial question. Some philosophers (for example, Gutmann, 1981) have argued that the private purchase of rationed health services should be forbidden to prevent inequalities. The problem with such ‘hard rationing’ solutions is that it is often difficult to distinguish health goods from ordinary consumption goods: how should we classify massages or cosmetic surgery?
For accounts of deliberative democracy, see, for example, Gutman and Thompson (1996) or Dryzek (2000), as well as collections edited by Bohman and Rehg (1997) or Gastil and Levine (2005).
The model was originally used to evaluate procedures in health insurance companies, meaning that the decisions studied were not political ones, and democratic legitimacy could not be a central issue. In his latest book, however, Daniels (2008, pp. 111–113) explicitly rejects majoritarian decisions on the distribution of health care.
Rawls simplifies his assumptions by postulating normal functioning, thus factoring out the issue of inequalities resulting from differences in health status. Daniels (1985) has extended Rawls’s theory to address issues of health and health care in Just Health Care, but has revised some of his earlier arguments in Just Health (Daniels, 2008, see especially, pp. 46–63).
Although much of the argument made here can be transferred to other policy areas, I would be less optimistic with regard to the protection of minority interests in meta-level decisions on the set-up of appointed bodies in, for example, education policy. Much depends on the degree to which we can conceive of ourselves as placed behind a veil of ignorance and on our capacity for compassion with, and responsibility for, negatively affected groups. I believe that both differ for different policy areas.
A somewhat similar argument is made by Rid (2009), who views AFR as a case of ‘constrained pure procedural justice’.
In a different context, Dennis Thompson has argued for democratic deliberation on the institutional design of political systems at large, using the term ‘meta-deliberation’, which I adopt here (see Thompson, 2008, p. 515).
This kind of two-track model of deliberative democracy, in which public discourses are not institutionalized but nonetheless exert pressure on political institutions, is advocated by Jürgen Habermas (1996) and James Bohman (1996).
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The author thanks three anonymous reviewers and the editors for helpful comments on earlier versions of this article, as well as the VolkswagenStiftung for funding the research that this article is based on through a Schumpeter Fellowship.
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Landwehr, C. Procedural justice and democratic institutional design in health-care priority-setting. Contemp Polit Theory 12, 296–317 (2013). https://doi.org/10.1057/cpt.2012.28
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DOI: https://doi.org/10.1057/cpt.2012.28