TEDxPSU
Jonathan Marks: In praise of conflict
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Conflict is bad; compromise, consensus and collaboration are good -- or so we're told. Lawyer and bioethicist Jonathan Marks challenges this conventional wisdom, showing how governments can jeopardize public health, human rights and the environment when they partner with industry. An important, timely reminder that common good and common ground are not the same thing.
Jonathan Marks - Bioethicist, lawyer
Jonathan Marks works at the intersections of ethics, law and policy -- writing and speaking about torture, obesity, fracking, health care and other pressing issues of our time. Full bio
Jonathan Marks works at the intersections of ethics, law and policy -- writing and speaking about torture, obesity, fracking, health care and other pressing issues of our time. Full bio
Double-click the English transcript below to play the video.
00:12
Twenty years ago,
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when I was a barrister
and human rights lawyer
and human rights lawyer
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in full-time legal practice in London,
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and the highest court in the land
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still convened, some would say
by an accident of history,
by an accident of history,
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in this building here,
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I met a young man
who had just quit his job
who had just quit his job
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in the British Foreign Office.
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When I asked him, "Why did you leave,"
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he told me this story.
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He had gone to his boss
one morning and said,
one morning and said,
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"Let's do something
about human rights abuses in China."
about human rights abuses in China."
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And his boss had replied,
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"We can't do anything
about human rights abuses in China
about human rights abuses in China
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because we have
trade relations with China."
trade relations with China."
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So my friend went away
with his tail between his legs,
with his tail between his legs,
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and six months later,
he returned again to his boss,
he returned again to his boss,
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and he said this time,
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"Let's do something
about human rights in Burma,"
about human rights in Burma,"
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as it was then called.
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His boss once again paused
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and said, "Oh, but we can't
do anything about human rights in Burma
do anything about human rights in Burma
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because we don't have
any trade relations with Burma."
any trade relations with Burma."
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(Laughter)
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This was the moment
he knew he had to leave.
he knew he had to leave.
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It wasn't just the hypocrisy
that got to him.
that got to him.
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It was the unwillingness of his government
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to engage in conflict
with other governments,
with other governments,
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in tense discussions,
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all the while, innocent people
were being harmed.
were being harmed.
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We are constantly told
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that conflict is bad
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that compromise is good;
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that conflict is bad
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but consensus is good;
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that conflict is bad
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and collaboration is good.
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But in my view,
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that's far too simple
a vision of the world.
a vision of the world.
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We cannot know
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whether conflict is bad
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unless we know who is fighting,
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why they are fighting
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and how they are fighting.
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And compromises can be thoroughly rotten
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if they harm people
who are not at the table,
who are not at the table,
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people who are vulnerable, disempowered,
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people whom we have
an obligation to protect.
an obligation to protect.
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Now, you might be
somewhat skeptical of a lawyer
somewhat skeptical of a lawyer
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arguing about the benefits of conflict
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and creating problems for compromise,
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but I did also qualify as a mediator,
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and these days, I spend my time
giving talks about ethics for free.
giving talks about ethics for free.
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So as my bank manager likes to remind me,
I'm downwardly mobile.
I'm downwardly mobile.
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But if you accept my argument,
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it should change not just the way
we lead our personal lives,
we lead our personal lives,
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which I wish to put
to one side for the moment,
to one side for the moment,
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but it will change the way
we think about major problems
we think about major problems
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of public health and the environment.
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03:01
Let me explain.
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03:04
Every middle schooler
in the United States,
in the United States,
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my 12-year-old daughter included,
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learns that there are
three branches of government,
three branches of government,
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the legislative, the executive
and the judicial branch.
and the judicial branch.
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James Madison wrote,
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"If there is any principle
more sacred in our Constitution,
more sacred in our Constitution,
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and indeed in any free constitution,
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than any other,
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it is that which separates
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the legislative, the executive
and the judicial powers."
and the judicial powers."
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Now, the framers were not just concerned
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about the concentration
and exercise of power.
and exercise of power.
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They also understood
the perils of influence.
the perils of influence.
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Judges cannot determine
the constitutionality of laws
the constitutionality of laws
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if they participate in making those laws,
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nor can they hold the other branches
of government accountable
of government accountable
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if they collaborate with them
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or enter into close
relationships with them.
relationships with them.
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The Constitution is,
as one famous scholar put it,
as one famous scholar put it,
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"an invitation to struggle."
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And we the people are served
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when those branches do, indeed,
struggle with each other.
struggle with each other.
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Now, we recognize
the importance of struggle
the importance of struggle
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not just in the public sector
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between our branches of government.
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We also know it too in the private sector,
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in relationships among corporations.
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Let's imagine that two American airlines
get together and agree
get together and agree
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that they will not drop the price
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of their economy class airfares
below 250 dollars a ticket.
below 250 dollars a ticket.
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That is collaboration,
some would say collusion,
some would say collusion,
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not competition,
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and we the people are harmed
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because we pay more for our tickets.
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Imagine similarly
two airlines were to say,
two airlines were to say,
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"Look, Airline A, we'll take
the route from LA to Chicago,"
the route from LA to Chicago,"
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and Airline B says, "We'll take
the route from Chicago to DC,
the route from Chicago to DC,
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and we won't compete."
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Once again, that's collaboration
or collusion instead of competition,
or collusion instead of competition,
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and we the people are harmed.
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So we understand
the importance of struggle
the importance of struggle
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when it comes to relationships
between branches of government,
between branches of government,
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the public sector.
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We also understand
the importance of conflict
the importance of conflict
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when it comes to relationships
among corporations,
among corporations,
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the private sector.
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But where we have forgotten it
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is in the relationships
between the public and the private.
between the public and the private.
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And governments all over the world
are collaborating with industry
are collaborating with industry
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to solve problems of public health
and the environment,
and the environment,
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often collaborating
with the very corporations
with the very corporations
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that are creating or exacerbating
the problems they are trying to solve.
the problems they are trying to solve.
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We are told that these relationships
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are a win-win.
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But what if someone is losing out?
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Let me give you some examples.
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A United Nations agency
decided to address a serious problem:
decided to address a serious problem:
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poor sanitation in schools in rural India.
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They did so not just in collaboration
with national and local governments
with national and local governments
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but also with a television company
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and with a major
multinational soda company.
multinational soda company.
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In exchange for less
than one million dollars,
than one million dollars,
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that corporation received the benefits
of a months-long promotional campaign
of a months-long promotional campaign
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including a 12-hour telethon
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all using the company's logo
and color scheme.
and color scheme.
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This was an arrangement
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which was totally understandable
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from the corporation's point of view.
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It enhances the reputation of the company
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and it creates brand loyalty
for its products.
for its products.
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But in my view,
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this is profoundly problematic
for the intergovernmental agency,
for the intergovernmental agency,
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an agency that has a mission
to promote sustainable living.
to promote sustainable living.
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By increasing consumption
of sugar-sweetened beverages
of sugar-sweetened beverages
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made from scarce local water supplies
and drunk out of plastic bottles
and drunk out of plastic bottles
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in a country that is already
grappling with obesity,
grappling with obesity,
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this is neither sustainable
from a public health
from a public health
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nor an environmental point of view.
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And in order to solve
one public health problem,
one public health problem,
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the agency is sowing the seeds
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of another.
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This is just one example
of dozens I discovered
of dozens I discovered
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in researching a book on the relationships
between government and industry.
between government and industry.
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I could also have told you
about the initiatives in parks
about the initiatives in parks
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in London and throughout Britain,
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involving the same company,
promoting exercise,
promoting exercise,
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or indeed of the British government
creating voluntary pledges
creating voluntary pledges
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in partnership with industry
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instead of regulating industry.
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These collaborations or partnerships
have become the paradigm in public health,
have become the paradigm in public health,
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and once again, they make sense
from the point of view of industry.
from the point of view of industry.
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It allows them to frame
public health problems and their solutions
public health problems and their solutions
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in ways that are least threatening to,
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most consonant with
their commercial interests.
their commercial interests.
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So obesity becomes a problem
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of individual decision-making,
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of personal behavior,
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personal responsibility
and lack of physical activity.
and lack of physical activity.
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It is not a problem,
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when framed this way,
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of a multinational food system
involving major corporations.
involving major corporations.
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And again, I don't blame industry.
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Industry naturally engages
in strategies of influence
in strategies of influence
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to promote its commercial interests.
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But governments have a responsibility
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to develop counterstrategies
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to protect us
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and the common good.
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The mistake that governments are making
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when they collaborate in this way
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with industry
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is that they conflate
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the common good
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with common ground.
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When you collaborate with industry,
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you necessarily put off the table
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things that might promote the common good
to which industry will not agree.
to which industry will not agree.
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Industry will not agree
to increased regulation
to increased regulation
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unless it believes this will
stave off even more regulation
stave off even more regulation
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or perhaps knock some competitors
out of the market.
out of the market.
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Nor can companies agree
to do certain things,
to do certain things,
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for example raise the prices
of their unhealthy products,
of their unhealthy products,
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because that would violate
competition law,
competition law,
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as we've established.
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So our governments should not confound
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the common good and common ground,
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especially when common ground
means reaching agreement with industry.
means reaching agreement with industry.
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I want to give you another example,
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moving from high-profile collaboration
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to something that is below ground
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both literally and figuratively:
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the hydraulic fracturing of natural gas.
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Imagine that you purchase a plot of land
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not knowing the mineral rights
have been sold.
have been sold.
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This is before the fracking boom.
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You build your dream home on that plot,
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and shortly afterwards,
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you discover that a gas company
is building a well pad on your land.
is building a well pad on your land.
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That was the plight
of the Hallowich family.
of the Hallowich family.
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Within a very short period of time,
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they began to complain of headaches,
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of sore throats, of itchy eyes,
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in addition to the interference
of the noise, vibration
of the noise, vibration
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and the bright lights
from the flaring of natural gas.
from the flaring of natural gas.
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They were very vocal in their criticisms,
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and then they fell silent.
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And thanks to the Pittsburgh Post-Gazette,
where this image appeared,
where this image appeared,
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and one other newspaper,
we discovered why they fell silent.
we discovered why they fell silent.
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The newspapers went to the court and said,
"What happened to the Hallowiches?"
"What happened to the Hallowiches?"
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And it turned out the Hallowiches
had made a secret settlement
had made a secret settlement
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with the gas operators, and it was
a take-it-or-leave-it settlement.
a take-it-or-leave-it settlement.
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The gas company said,
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you can have a six-figure sum
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to move elsewhere
and start your lives again,
and start your lives again,
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but in return
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you must promise not to speak
of your experience with our company,
of your experience with our company,
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not to speak of your
experience with fracking,
experience with fracking,
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not to speak about the health consequences
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that might have been revealed
by a medical examination.
by a medical examination.
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Now, I do not blame
the Hallowiches for accepting
the Hallowiches for accepting
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a take-it-or-leave-it settlement
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and starting their lives elsewhere.
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And one can understand
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why the company would wish
to silence a squeaky wheel.
to silence a squeaky wheel.
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What I want to point the finger at
is the legal and regulatory system,
is the legal and regulatory system,
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a system in which there are
networks of agreements
networks of agreements
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just like this one
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which serve to silence people
and seal off data points
and seal off data points
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from public health experts
and epidemiologists,
and epidemiologists,
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a system in which regulators
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will even refrain
from issuing a violation notice
from issuing a violation notice
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in the event of pollution
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if the landowner and the gas company
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agree to settle.
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This is a system which isn't just
bad from a public health point of view;
bad from a public health point of view;
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it exposes hazards to local families
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who remain in the dark.
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Now, I have given you two examples
not because they are isolated examples.
not because they are isolated examples.
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They are examples of a systemic problem.
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I could share some counterexamples,
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the case for example
of the public official
of the public official
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who sues the pharmaceutical company
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for concealing the fact
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that its antidepressant increases
suicidal thoughts in adolescents.
suicidal thoughts in adolescents.
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I can tell you about the regulator
who went after the food company
who went after the food company
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for exaggerating the purported
health benefits of its yogurt.
health benefits of its yogurt.
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And I can tell you about the legislator
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who despite heavy lobbying
directed at both sides of the aisle
directed at both sides of the aisle
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pushes for environmental protections.
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These are isolated examples,
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but they are beacons of light
in the darkness,
in the darkness,
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and they can show us the way.
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I began by suggesting that sometimes
we need to engage in conflict.
we need to engage in conflict.
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13:39
Governments should tussle with,
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13:43
struggle with, at times engage
in direct conflict with corporations.
in direct conflict with corporations.
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13:49
This is not because governments
are inherently good
are inherently good
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13:54
and corporations are inherently evil.
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Each is capable of good or ill.
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But corporations understandably
act to promote their commercial interests,
act to promote their commercial interests,
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14:07
and they do so either sometimes
undermining or promoting the common good.
undermining or promoting the common good.
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But it is the responsibility
of governments
of governments
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to protect and promote the common good.
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14:20
And we should insist
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that they fight to do so.
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14:26
This is because governments
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are the guardians
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14:31
of public health;
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governments are the guardians
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14:36
of the environment;
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14:38
and it is governments
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that are guardians
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of these essential parts
of our common good.
of our common good.
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Thank you.
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(Applause)
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ABOUT THE SPEAKER
Jonathan Marks - Bioethicist, lawyerJonathan Marks works at the intersections of ethics, law and policy -- writing and speaking about torture, obesity, fracking, health care and other pressing issues of our time.
Why you should listen
After studying law at Oxford University, Jonathan Marks qualified as a barrister and mediator, and he spent a decade in full-time practice in London. He became an expert on human rights, working on cases about torture (the Pinochet case), the protection of privacy and personal data, and the regulation of food, drugs and the environment.
The Greenwall Fellowship in Bioethics and Health Policy at Johns Hopkins and Georgetown Universities led to his current appointment as Director of the Bioethics Program at Penn State University, where he is also affiliated with the Rock Ethics Institute, Penn State Law and the School of International Affairs. He remains an academic member of Matrix, a London barristers' chambers with offices in Geneva.
Marks is passionate about teaching and lecturing, as his TED talk, and an article in the New York Times both attest. The talk offers a preview of his book manuscript, The Perils of Partnership. It also draws on research he conducted during his six-year affiliation with the Edmond J. Safra Center for Ethics at Harvard and during residencies at the Hastings Center and at the Brocher Foundation in Geneva.
Learn more about Marks's ideas from several articles, essays, and op-eds here.
Jonathan Marks | Speaker | TED.com