In 1859, the English philosopher John Stuart Mill published the first of his two major works, On Liberty, which helped him become, as many agree, the most influential English-speaking philosopher of the 19th century. In that essay, Mill defined what came to be known as the harm principle. Stated briefly, it says:
The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.
Today we might baulk at Mill’s use of “civilised” and “his” in this sentence, yet the general principle quickly came to dominate all legal debates about crime and the justice system. Liberal democracies the world over enshrined – and largely still use – this idea to give individuals the freedom to generally do as they please. But this ignored a deeper problem — the definition of “harm” itself.
In 1999 the legal scholar Bernard Harcourt argued that the harm principle is faulty because it actually contains no way to adjudicate between competing claims of harm. That would require an accepted and fundamental definition of harm, which doesn’t exist. This has led to growing and irreconcilable culture clashes: both sides claim they are being harmed, and whoever happens to be in power gets to decide – and put into law – their own values.
Equally, the widespread destruction of the environment has taken place because human interests are overwhelmingly prioritised over environmental harms, which are not acknowledged in fundamental legal principles. Environmental protection laws allow for harm to the environment. For far too long, harm to “others” has only really considered humans.
In the recent BBC film Extinction: The Facts, Sir David Attenborough painfully examines just how critical this crisis has become. This surprisingly radical documentary shows just how significant an overhaul we need. For the survival of life on this planet, including the survival of humanity, it is vital that actions which threaten it be recognised as harmful, regulated and made criminal under law.
In a recent paper, philosopher Ed Gibney and I seek to rebuild the harm principle, so that the legal and criminal justice systems can better address competing harms, both between humans and towards the environment.
We draw on evolutionary principles to define harm as “that which makes the survival of life more fragile”. By “life”, we mean all living species, not just humans. And by “survival”, we mean the ability to flourish, not just the bare minimum of a tenuous existence. No actions ought to lead towards the extinction of life.
We argue that this principle should be used to empirically adjudicate between competing claims of harm. For example, humans should not be allowed to kill an entire species for use of their body parts, as has been the case with the Northern white rhinoceros.
The general rule to guide all actions is that “life ought to act to survive”. This is precisely what is necessary to arrive at a definition of harm that allows the harm principle to be rebuilt.
You might think this is all very well in theory, but how do we embed these evolutionary perspectives into society?
Most obviously, there is a need to fundamentally alter the legal and criminal justice systems. They are out of date philosophically, and largely still rely on Victorian principles. One way to alter them is by incorporating a legal perspective called “Earth jurisprudence” or “wild law”, an approach to all legislation that puts the Earth at the centre of the system.
The non-mainstream perspective of wild law is best placed to use our new definition of harm. It is possibly most prominent in Australia, where scholars Nicole Rogers and Michelle Maloney created the Wild Law Judgement Project, rewriting existing legislation to be Earth-centred.
Among the principles of Earth Jurisprudence is the following tenet:
Human governance systems at all times must take account of the interests of the whole Earth community and must … maintain a dynamic balance between the rights of humans and those of other members of the Earth community on the basis of what is best for Earth as a whole … [and] recognise all members of the Earth community as subjects before the law.
This kind of outlook has been far too neglected. But more and more people now recognise these harms and demand our politicians change our laws to stop them.
Humans are a part of nature. To take just one example from Extinction: The Facts, consider the problem of overfishing. Attenborough notes there may be 100,000 fishing trawlers operating globally at any one time. Each trawler may be the size of four jumbo jets. The industrial scale of such extraction and loss of adult fish mean the populations of fish cannot recover.
Legislation that considers harm to all life rather than only humans would prohibit such activity because of its destructive nature – destructive to the fish, marine ecosystems and to people reliant on fish. The timescale of ethical consideration needs to shift from a narrow short-term focus on human individuals (catching as many fish as possible continually) to comprehensive long-term consequences for all life (collapse of fish populations and food insecurity for our children). Once we recognise this, we must change our interactions and relationships with the environment and non-human animals.
Environmental activists have been advocating for piecemeal change along these lines for decades, sometimes successfully. But what is needed is a fundamental change to the harm principle which underlies all our laws. The legal and criminal justice systems must take up their role in implementing these changes that we now know we need to make. Only this can save our fellow beings, and quite possibly ourselves, from extinction.