Justice-based approaches to environmental harm - Environmental Harm: An Eco-justice Perspective - page 14

cases are stifled, prevented or diminished by systemic pressures and
limits of the society as a whole. Harm and injustice co-exist within
the context of injurious social relationships that perpetuate wrongness.
It is not only with the concepts reviewed in this sub-section that
many questions emerge vis-à-vis eco-justice. The same applies to
matters pertaining to the measurement of harm.
Measurement issues
The overall aim of criminal law is to prevent and punish certain kinds of
behaviour - both acts and omissions - regarded as harmful or potentially
harmful. The purposes of criminal law vary, however, and involve a
constant weighing up of moral wrongness, individual autonomy, and
community welfare (Findlay et al, 1994). What falls within the ambit of
criminal law (and what does not) is the outcome of a social process that
is ongoing and inherently political, since it embodies basic principles
and visions of the kind of society in which people prefer to live.
A primary task of criminal law is to stipulate the degree of seriousness
of criminal conduct. This involves assessing such factors as the physical
impact of the conduct on the victim, psychological trauma, the
monetary value of crimes and so forth. Social scientists who study
crime argue that it is 'harm' that needs to be measured and assessed,
and that in doing so the study of crime must go beyond existing legal
definitions and criteria for several reasons.
First, wrongdoing is perpetrated by states themselves, yet it is nation-
states that define what is criminal, corrupt or unjust. There is a need
to develop definitions of crime and criteria by which harm can be
measured that are not restricted to specific state's laws but that are
more universal in nature (for example, appeal to 'human rights' or
'environmental rights' or 'animal rights'). Second, harms perpetrated by
powerful groups and organisations, such as transnational corporations,
are frequently dealt with by the state as civil rather than criminal
matters. This reflects the capacity of the powerful to shape laws in ways
that do not criminalise their activities, even when they are ecologically
disastrous. Third, extra-legal concepts and factors need to be studied
if we are to fully capture the nature of environmental harm, and this
requires a different way of framing the issues. An ecology-based analysis
of wrong-doing will provide a different picture of 'harm' than an
economic-based analysis. What is defined as criminal harm, and the
measure of the seriousness of that harm, are contingent upon the social
interests bound up with the definitional process.