Law is fluid and definitions tend to change over time; so what constitutes harm in one person’s view may not constitute harm in another person’s view. So how can we come up with a definition of harm that works for everyone?
According to Black’s Law Dictionary, harm means to damage, injure, or hurt. Traditionally, harm has included mental anguish, damage to someone’s reputation as well as bodily injury. Is it the same under Common Law? Should it be?
I feel it might be helpful to look at the principle underlying the issue of “harm” and see if it will guide us.
There was a time in history when people were self-governing. Indigenous communities developed customs and practices designed to ensure peace, liberty and equality. They did this with the shared understanding that no one is more free than someone else; we are all equally sovereign. So anyone attempting to rule over another, lay claim to more natural resources than another, or to own any part of the world which was provided equally to everyone by Creator, was viewed as operating outside their rights. Such people were viewed as tyrannical and going against the Natural Laws of Creation.
So it appears that the principle underlying “harm” is anything that interferes with freedom and equality. The reason the concept is so confusing for us today is because we have become used to inequality: “owning” parts of creation (under Common Law we are custodians, not owners), laying claim to ideas, hoarding natural resources. We feel we are harmed if someone else uses our creation and benefits from it. We feel we are harmed if we aren’t allowed to “own” more of nature than we can possibly utilize. We have gotten so used to viewing each other as separate entities that we have forgotten the Ubuntu concept:without you there is no me.
Return to Common Law is a return to the golden rule: do unto others as you would have them do unto you. Like it or not, we are our brother’s keeper. When we remove power struggles and toxic self-centeredness,it becomes quite easy to see what harm is. If I diminish you, I have harmed you.
No, we won’t go to prison or pay fines for hurting someone’s feelings. But we will learn to stand in complete responsibility and liability for our actions. We will learn to be transparent in all our business dealings and to stand in integrity when asked to account for our behavior. We will learn, hopefully, to make things right If we have diminished someone, without the need of a court or jury.
It is my belief that we are coming into an age where doing what is right will be commonplace and unrelated to law or punishment. And we will no longer hold discussions about what constitutes harm.