17.1 Introduction
One Health challenges the foundations of public health law. Modern public health law was formulated in the nineteenth century when industrialisation and urbanisation necessitated a focus on population-level interventions.Footnote 1 These interventions largely focused on minimising the spread of infectious diseases, including through sanitation measures and vaccination, and on managing localised pollution associated with occupational and industrial activity.Footnote 2 Public health was further modernised in the twentieth century to include managing non-communicable diseases, such as obesity.Footnote 3 But at its base, we argue that current formulations of public health law are problematic due to its anthropocentric foundations and failure to acknowledge non-state actors in regulating public health.
In this chapter, we argue that One Health approaches indicate the need for a re-conceptualisation of public health law. To address public health effectively we need to attend to our interdependencies with each other, with other animals, and with the environment.Footnote 4 As Gill and Bakker have noted, there is ‘a crisis in the relationship between human beings and nature’.Footnote 5 There is increasing awareness of the impact of the environment on human health, but, until recently, less recognition of the impact of the treatment of animals on human health.Footnote 6
We argue that a failure to recognise the interdependence between humans and nature unnecessarily limits the scope of public health law, as it restricts the regulatory interventions and actors available to achieve desired public health outcomes. One Health offers an opportunity to broaden our understanding of what it means to regulate public health in a non-anthropocentric manner. It also allows us to acknowledge that non-state actors that advance animal and environmental health via standard-setting, gathering information, and influencing behaviour can mitigate risks to public health. A core function of public health is prevention and re-conceptualising the scope and actors involved in public health law to encompass the more holistic approach suggested by One Health is critical to its continued evolution as the twenty-first century progresses.
We first analyse the presumptions embedded in modern formulations of public health and public health law established during the period known as the Enlightenment. We then examine various formulations of the definitions of public health law. The next sections of the paper argue that public health law needs to reassess its roots in the Enlightenment and consider expanding its orientation away from its anthropocentric focus and recognise the multiplicity of actors that engage in the contemporary regulation of public health interventions. One Health emphasises the importance of and need for this transformation.
17.2 Positioning Public Health and Public Health Law
The shape of public health and public health law, as we conceptualise it today, has its roots in the period that is referred to as the Enlightenment in European history. In the nineteenth century, this thinking was the basis, in so-called western society of a social order which influenced the structure of modern public health law. In this section, we highlight some of the presumptions emerging from this period that are important when considering the scope and shape of public health law.
Starting with public health itself, public health interventions have a long pre-history but were significantly developed during the nineteenth century with a focus on sanitation and infectious disease management.Footnote 7 This was a period of industrialisation, urbanisation (expansion of population and population density), colonisation, and social and economic change. The population experienced the human costs of the expansion of industrial and economic growth. In the west the pattern of disease gradually evolved during this period, on aggregate, from epidemic to endemic.Footnote 8 However, the impact of colonisation saw epidemics cause significant, and culturally crippling, waves of mortality through colonised populations. As patterns of disease changed during the twentieth century, public health in the west expanded its focus to include chronic illness as it impacted population-level health outcomes.Footnote 9 Sanitation and prevention remained core business, especially in low and middle-income countries (LMICs), but public health increasingly focused on health promotion, for populations such as women in LMICs, and individuals so they could choose a ‘healthy lifestyle’. During the nineteenth and twentieth centuries, new tools of analysis and understanding of disease and disease prevention mechanisms were developed.Footnote 10
A core driver underlying Enlightenment thinking was a movement from the dogmas of religion as a basis for thinking to rationality. Rationality (in the sense of the use of the scientific method of inquiry) is seen as a process or mechanism for formulating new knowledge and values and using these to drive human progress. Disease impeded human progress and economic development and therefore needed to be managed scientifically but only insofar as disease impacted human flourishing. The greatest good of the greatest number of people (a utilitarian approach) was part of this calculation.Footnote 11 In many accounts, public health was framed as an achievement of the rationality associated with the Enlightenment.Footnote 12 The expanded scope of public health, and accordingly, public health law, did not, we argue, change the fundamental underpinnings of public health law based on the preconceptions of the Enlightenment.
How law was conceptualised and used was also developed during the Enlightenment. There are two elements that we focus on in this chapter: centralisation of power in the state; and dominion. In this formulation of law, an approach referred to as legal positivism, the state had exclusivity over law-making powers, such as legislation and enforcement/punishment mechanisms, and was the only legitimate actor in the legal space.Footnote 13 This was important as law was, and remains to be used as a tool of social control and to give effect to the state’s duties both to protect individuals and the market economy.Footnote 14 Rationalism was deeply intertwined with capitalism. In the health context, while the free market was seen as important, it was also recognised that for the system to work the state had a role to act to correct for market failure in assuring the conditions for individuals to flourish. This was complemented by a concern, emerging from philanthropy, about the welfare of the poor.Footnote 15 These factors lead to a recognition of the need to control structural factors that impact human morbidity and mortality at the population level. Centralising power with state actors positioned the state as the legitimate and only actor in the public health law space.Footnote 16
Further, the Enlightenment developed a conceptual distinction between humans and nature. This was a departure from past beliefs derived from the Aristotelian conception that there was an integral connection between people and nature.Footnote 17 In contrast, the Enlightenment viewed nature as both an object of study and an object of control.Footnote 18 For example, Descartes wrote of making men ‘masters and possessors of nature’ and conceptualised human beings as outside of and separate from nature.Footnote 19 Capitalism also supported this approach to nature, enabling exploitation of nature to maximise human interests (and especially those of the ‘civilised peoples’, i.e. Europeans).Footnote 20 Despite the Enlightenment being an intellectual movement separate from religion, the view of the dominion of man over nature was also consistent, at least in part, with some versions of religious thought.Footnote 21 Animals and land or nature are accordingly subject to human dominion for exploitation and development. The legal norms emerging from the Enlightenment were therefore inherently anthropomorphic, albeit as many critics justly conclude, in a way that was structured to ignore the interests of those humans and civilisations who were not considered by the colonising powers to meet euro-centric norms (including those living in harmony with nature), who were women, or who were othered for some reason.Footnote 22
It can be argued that the Enlightenment influenced and influences public health law by centring the state at the centre of public health, positioning public health as focused only on protecting human health, and that animals and nature are subject to human dominion. While there are many definitions of public health law, the next section explores some of the most established.
17.3 Defining Public Health Law
The scope of ‘public health law’ has evolved through time, though its purpose remains the same: ‘promoting the health of populations by scientifically proven and economically feasible means’.Footnote 23 It is worth acknowledging from the outset that even this broad aim is inconsistent with the inclusivity and approach to justice espoused by One Health, which affords weight to evidence that sits outside the scope of science.Footnote 24 There are a multiplicity of definitions of public health law and this section does not address all of them; choosing to focus on some key definitions. A traditional account of this field restricts government intervention to infectious disease and pollution.Footnote 25 Epstein reasons that public health law is only justified where private law is insufficient.Footnote 26 Free markets are built on contract law and torts law, which provide limited recourse against such issues. As Epstein observes, how would one sue for damages if they contract a communicable disease? How would they know who to sue?Footnote 27 Even if they could sue the person responsible, this would not prevent disease transmission. As private rights are ill-equipped to deal with such public issues, government regulation is justified. However, in matters of personal responsibility, market incentives are a more appropriate means of controlling risk.Footnote 28 Issues like obesity and smoking therefore fall outside the ambit of public health law, according to Epstein, as one chooses to assume such risks.
Gostin and Bloche adopt a broader notion of public health law that encompasses the development of ‘evidence-based responses to contemporary health risks’.Footnote 29 They argue that this conception better accommodates the public’s changing risk-profile, which ensures that issues like obesity and smoking are not neglected.Footnote 30 They criticise Epstein’s reliance on ‘market failure’ as a precondition for government intervention, noting its normative underpinning. Whether the market fails to achieve an outcome depends on the outcome one identifies as desirable.Footnote 31 Epstein does not acknowledge the normative theory that guides his judgments, which leads him to conflicting conclusions on what constitutes market failure. For example, he criticises anti-discrimination laws for ‘people living with HIV/AIDs’ on the basis that discrimination promotes public health by deterring risky behaviour (e.g. unsafe sex, drug use).Footnote 32 In contrast, he simultaneously claims fast food vendors should not be held liable for selling unhealthy food. Yet, imposing liability would similarly promote public health by deterring risky behaviour (e.g. the sale of unhealthy food).Footnote 33 Gostin, Wiley, and Frieden have since identified social justice as a moral foundation for the dual aims inherent in public health: ‘to advance human well-being by improving health and to do so by particularly focussing on the needs of the most disadvantaged’.Footnote 34 A focus on population health and prevention distinguishes this field from medicine, which typically centres on individual health and amelioration.Footnote 35 Public health seeks to alter the determinants of morbidity and mortality to prevent poor health, whereas medicine typically focuses on the treatment of poor health.Footnote 36 Importantly, these are themes, not unbreakable rules. Medicine plays a hand in preventing disease, just as public health may contribute to amelioration. Public health law is also grounded in social justice. As such, a central focus in this field is the disruption of systemic issues that perpetuate poor health outcomes for disadvantaged groups. These factors formed the basis of Gostin, Wiley, and Frieden’s definition of public health law, which we examine further throughout this chapter:
Public health law is the study of the legal powers and duties of the state to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good.Footnote 37
As we can see, key definitions of public health law encompass some of the central threads from Enlightenment thinking; anthropocentric and centred approaches (states are the only regulatory actors in this space) to public health law.Footnote 38 We use a One Health lens to argue that we need to move past anthropocentric framings. A further challenge to public health law in the twenty-first century is the limitations associated with sovereignty which have traditionally (with a few exceptions) limited the scope of public health law to domestic matters. The interconnectedness of people, animals and nature is not limited by artificial geographical boundaries. We also argue that we should recognise that non-state actors are also engaging in regulation to promote public health.
17.4 The Future of Public Health Law
In this section, we explore some key issues that public health law, in our view, will need to grapple with moving forward relating to the scope of public health law and actors in that space.
17.4.1 Expanding the Scope of Public Health Law
Law has evolved to encompass, albeit incompletely, the diversity of the human condition. One of the ways in which it has done and continues to do this is through the integration of human rights norms into legal, political, and social systems, especially as related to equality. However, the question remains whether and how public health and public health law can evolve beyond its anthropocentric foundations. There are at least two ways in which public health can develop informed by One Health or similar approaches: through incorporating the moral standing of animals and the ecosystem into how we conceptualise public health and public health law; or, at the very least, acknowledging that the well-being of the ecosystem and animals has an instrumental importance.Footnote 39 An intrinsic view of ecosystems and animals suggests that they are an end in and of themselves; they have intrinsic value.Footnote 40 This has been recognised in a very limited way in some countries. For example, in Aotearoa New Zealand, the Te Urewera (a former national park) and the Whanganui River have been recognised as having intrinsic value and afforded status as, respectively, a legal entity and legal person.Footnote 41 Critics argue that this status is more about creating a mechanism to manage relationships between humans, rather than anything else (a relational view).Footnote 42 A relational view is perhaps a middle ground between intrinsic and instrumental in that it focuses on the perception of people, individually or collectively, that they have a relationship(s) with the ecosystem and responsibilities arising from that relationship. Empirical research has indicated that this view is more often seen in non-Western cultures.Footnote 43 An instrumental approach to public health law suggests that ecosystems and animals only have value in terms of being a means to the end of achieving the conditions to maximise human health or human well-being. These views can and do overlap for some people and relational is sometimes subsumed as instrumental if it is framed to confer a health benefit for the person from that relationship (i.e. mental health).Footnote 44 Currently, public health law (domestic or global), unsurprisingly considering its western Enlightenment foundations (discussed above), is fundamentally instrumental. The focus, therefore, is on the well-being of animals and the ecosystem because of its instrumental value for human health (physical or mental).Footnote 45 One Health could be characterised as an integrated approach straddling intrinsic value, relationality, and instrumentalism in emphasising the importance and inter-connectedness of the health of people, animals, and the environment. While some would, and do, emphasise the instrumental benefits of One Health, One Health creates a model that embraces relationality and intrinsic value. It has the potential, if fully realised, to move away from bio-medical reductionalism that some have argued is an issue for One Health, as much as it is for public health law.Footnote 46
One Health challenges public health law to think about the limitations of an instrumentalist view of animals and the ecosystem where the balance remains focused on short-term human interests as mediated by capitalism. Contesting the Enlightenment thinking that permeates public health and public health law is critical for ecosystems, animals, and human interests. It is also an important step in de-colonising public health as a field and how public health law is conceptualised and employed.
Public health law has, in addition to being anthropocentric, also been primarily domestic in its orientation,Footnote 47 despite its overlap with imperialist colonisation practices.Footnote 48 This too reflects the limitations of existing legal structures with the primacy accorded to the sovereignty of nation states. Public health law has increasingly acknowledged this global context.Footnote 49 Gostin et al., as part of the Lancet Commissions, have recently argued: ‘Health risks in the twenty-first century are beyond the control of any government in any country. In an era of globalisation, promoting public health and equity requires cooperation and coordination both within and among states.’Footnote 50 The pandemic context led to the introduction, and post-SARS pandemic revision, of the International Health Regulations (IHR). The IHR imposes obligations on signatory states to undertake surveillance, investigation, reporting, and coordination of emerging pathogens.Footnote 51 The expansion of the scope of public health law to include non-communicable diseases has led to international legal instruments such as the Framework Convention for Tobacco Control 2003.Footnote 52 While the impacts of global infectious pathogens on human health are clear and have been experienced through epidemics and pandemics across the centuries, environmental degradation, until recently, had only localised impacts. This is changing: the impact of climate change and widespread environmental degradation have global impacts on human health that cross national boundaries. The centred definition of public health law with powers resting with the state has resulted in public health law being slow to recognise and respond to these changes. There has been some limited recognition of the transboundary impact of climate change and environmental degradation on human health; for example, the Association of Southeast Asian Nations – ASEAN Agreement on Transboundary Haze Pollution.Footnote 53 Gostin et al., conclude:
Globalisation has heightened risks to our health, but it also presents unprecedented opportunities to confront global health threats collaboratively, drawing on expertise and lessons learned within and among nation states. No government acting alone can achieve health with justice. Instead, we need laws and policies at every level – local, national, and global – to achieve a world that is healthier and safer.Footnote 54
In keeping with the positivist limitations on public health law, the discussion in this report predominantly focuses on how states can use law, singularly or in collaboration with other nations to achieve global public health ends, including through coordinating with non-state actors. However, it does not recognise non-state actors as potential regulators of public health practice.
17.4.2 Decentred Approaches to Public Health Law
One Health practices draw on interdisciplinary expertise in recognition of ‘the interdependence between human, animal and environmental health’.Footnote 55 Gostin and Bloche acknowledge the importance of these non-state actors as a source of information.Footnote 56 Nevertheless, they identify the state as the sole-regulator.Footnote 57 We challenge the view that One Health practitioners merely inform the state, and instead argue that their actions are a form of regulation. Decentring our understanding of this field better reflects their contributions. This section begins by examining the themes that underpin Gostin et al.’s centred definition of public health law and then Black’s decentred conceptualisation of regulation. We argue that Black’s work applies to public health law. Indigenous Land Management (ILM) in Australia is used as a case study to explore the legitimacy of a decentred conception of public health law.
17.4.2.1 A Decentred Definition of Public Health Law
Gostin et al.’s definition establishes several themes that demarcate public health law from related disciplines: a focus on population health, an orientation toward prevention, a social justice foundation, and the state’s exclusive role in regulating risk.Footnote 58 Most relevant for our purposes is Gostin et al.’s final theme: the regulation of public health risk. Gostin et al. contend that the state is the only legitimate body that can engage in regulation of this kind. They offer two reasons to support this position. Gostin et al. first observe that as an elected entity, the government is primarily responsible for the health of the population.Footnote 59 However, it seems clear that non-state actors play an increasingly important role in promoting population health. For example, non-governmental bodies, such as the Bill and Melinda Gates Foundation, often lead public health initiatives and in so doing regulate public health in the nations in which their initiatives are implemented.Footnote 60
Gostin et al.’s second justification rests on one of the tenets of public health law: prioritise the common good over liberty. The ‘common good’ refers to communal values in maintaining ‘healthy and secure communities’.Footnote 61 Public health is a common good because its promotion benefits the population. It is frequently necessary to restrict liberty to promote the common good because it is often advantageous for an individual to undermine a common good. For example, it is more convenient to dump hazardous waste at a local park than it is to pay for it to be processed at an appropriate facility. At its core, risk regulation involves balancing liberty and the common good. Gostin et al. observe that coercion is needed to restrict liberty to promote the common good. Hence, they limit public health law to government intervention, as only the government is capable of regulating risk via coercion.Footnote 62 This highlights that risk regulation is central to our conception of public health law, whereas the regulator is only a means of achieving that end. Altering the identity of the regulator does not undermine the aim of public health law. It follows that a decentred conception of this field is viable, provided non-state actors are engaging in risk regulation.
Before considering whether non-state actors regulate risk, we must first ask: what does it mean to regulate? Regulation refers to an interference with some form of activity.Footnote 63 Selznick defined the concept as a tool that governments use to exercise ‘command and control’.Footnote 64 However, contemporary lines of regulatory theory recognise that regulation is not synonymous with coercion. As Parker and Braithwaite observe, ‘[e]arly empirical studies of how regulatory officials actually enforce the law found that they often prefer in the first instance to use strategies of education, persuasion, and cooperation’.Footnote 65 This highlights that one can regulate risk without coercion. Selznick also employs a centred definition of regulation, which is problematic because non-state actors frequently engage in regulation. Industry self-regulation is a clear example. As Black observes ‘whatever “self”-regulation is, it is not state regulation’.Footnote 66 In recognition of non-state regulators, Black advocates for a decentred definition of regulation: ‘the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes, which may involve mechanisms of standard-setting, information-gathering and behaviour-modification’.Footnote 67 Four criteria underpin Black’s definition. She first includes ‘intention’ as a criterion to distinguish regulation from other forms of ‘social control and ordering’, such as market forces.Footnote 68 However, her definition remains decentred as it does not limit regulation to intentional state action.Footnote 69 Black next recognises that regulation is an ongoing activity through her use of the words ‘sustained and focussed’.Footnote 70 She then observes that regulation is orientated toward problem-solving.Footnote 71 Finally, Black specifies three regulatory outcomes (standard setting, information gathering, and behaviour modification) to distinguish regulation from other forms of problem solving (e.g. mathematics).Footnote 72 Black’s conceptualisation of regulation is a framework that can be used to decentre Gostin et al.’s definition. However, to be considered a form of public health law, non-state regulation must satisfy the themes embodied in Gostin et al.’s definition: it must reflect a focus on population health; a preventative orientation; a social justice foundation; and a balancing of liberty against the common good (i.e. risk regulation).
17.4.2.2 Case Study: ILM
Here, we use ILM to test the legitimacy of decentring our understanding of this field by applying Black’s definition. ILM encompasses Indigenous resource management, settlement improvements and threat abatement,Footnote 73 which involve leveraging the interconnectedness of the environment, animals, and humans to promote the health of each. This form of relating to Country aligns with the objectives of One Health, although the practices should not be conflated. As Jacobs, Darnell, and McKinley observe: ‘if good development is to take place, the local knowledge surrounding the origins of relationships must be included as valid and important rather than simply as a different way of describing a One Health concept’.Footnote 74
First Nations people improve environmental health through various activities, such as restoring natural habitats.Footnote 75 This exemplifies the interconnectedness of environmental and animal health, as improving the land’s habitability directly impacts animal health. ILM also improves the health of First Nations people. Davies et al. observe that ILM creates a ‘sense of control’, which is a psychosocial factor that improves health by moderating sustained stress. Sustained stress refers to the helplessness a person experiences upon learning an outcome is outside of their control. Moderating this factor is meaningful, as sustained stress ‘is a significant cause of illness and disease among Aboriginal people’.Footnote 76 While ILM can positively impact human health, it does not prioritise humans. Instead, an equilibrium exists, wherein human health is improved by promoting animal and environmental health. Without engaging in conservation practices, First Nations people would not derive the sense of control attached to this work, and so human health would suffer alongside animal and environmental health. Such practices are an example of relating to Country, which First Nations people have engaged in for millennia. One Health shares the same aims as relating to Country because it is the western form of this practice. ILM highlights how equal weight can be afforded to human, animal, and environmental health. This is uncommon even amongst One Health initiatives. While non-anthropocentric framing is employed at a conceptual level, in practice One Health initiatives are often criticised for prioritising humans. As Woolaston notes, existing One Health practices reflect a hierarchy wherein ‘humans [are] at the top and environment and individual non-human animals [are] at the bottom’.Footnote 77
The themes of public health law are reflected in this approach to relating to Country, which shares the same aims as western One Health practices. Consider the field’s emphasis on population health and prevention. The preceding discussion makes clear that ILM improves the health of First Nations people.Footnote 78 However, health benefits also flow to the broader population. In particular, ILM is integral to Australia’s pandemic prevention strategies, as Indigenous rangers undertake a large proportion of ‘on-the-ground biosecurity work’.Footnote 79 These interventions align with the preventative orientation that is characteristic of public health law.Footnote 80 In particular, Gostin et al. emphasise the importance of protecting public health by addressing environmental determinants of poor health.Footnote 81
ILM similarly promotes social justice, consistent with the moral foundation of public health law. As Woolaston et al. observe, ‘First Nations Australians are disproportionately affected by pandemics’,Footnote 82 which has the potential to exacerbate existing social inequalities.Footnote 83 Implementing ILM to address the ecological determinants of pandemics is therefore central to empowering First Nations people to overcome disadvantage. Nevertheless, on Gostin et al.’s account, ILM is not an example of public health law. This initiative sits outside the ambit of his definition, as Gostin et al. contends that the government is solely responsible for regulating risk.Footnote 84 ILM is not a government initiative, as these practices are undertaken by non-state actors, including First Nations people, groups, and organisations.Footnote 85 This raises two questions: does ILM fall within Black’s conception of regulation? And if so, is ILM a method of regulating risk?
Returning first to Black’s criteria for regulation: intention, the temporal dimension, the problem-solving orientation, and specificity. ILM satisfies the first of these criteria, as it is a deliberate practice that First Nations people engage in, distinct from unintentional forces like weather. Similarly, it reflects the ongoing nature of regulation, due to its longevity. Such practices are deeply rooted in Indigenous culture, having evolved over 50,000 years.Footnote 86 ILM is also orientated toward a variety of distinct problems, such as controlling invasive species and habitat restoration. Taken together, these issues are representative of an overarching problem: ecological damage. While ILM encompasses numerous practices, they are unified in their orientation toward this problem.
As Black observes, three outcomes distinguish regulation from other forms of problem-solving: standard setting, information gathering and behaviour modification. Beginning with standard setting, ILM involves altering the environment with reference to standards. For example, fire management is undertaken with reference to ‘Indigenous customary patterns and science’.Footnote 87 These customary practices are linked to a reduction in greenhouse gases and wildfires.Footnote 88 ILM similarly encompasses information gathering. In a survey of 153 ILM projects, Leiper et al. found that monitoring and surveying animals, plants, and ecosystems was the most common activity. These practices centre on recording information about ecological changes to inform conservation management.Footnote 89 Finally, ILM includes practices that modify human behaviour to promote One Health. For example, the Yolnga people control access to regions in north-east Arnhem Land using an access permit system. The permits were introduced to combat ecological damage that stemmed from unfettered access.Footnote 90
As ILM satisfies Black’s criteria, we contend that it is a form of regulation. We can turn then to our final question: is ILM a method of regulating risk? As Gostin et al. observe, balancing the common good against liberty is a defining aspect of public health law.Footnote 91 Thus, if ILM is to be a form of public health law, it must balance these competing interests. The Yolnga people showcase how ILM regulates risk. Restricting access to land infringes on the liberty of those who would otherwise travel unimpeded. Yet this infringement is justified, as it protects a common good (ecology). Prioritising conservation efforts ultimately benefits public health also, given its interconnectedness with ecology. It follows that ILM embodies the themes that define public health law. We argue that One Health practitioners do more than inform the state’s regulation of public health; at least in some cases, their practices are a form of public health law. As such, a decentred conception of public health law is important to the ongoing development of public health law.
17.5 Conclusion
In this chapter, we have argued that One Health approaches indicate the need for a re-conceptualisation of public health law. One Health offers an opportunity to move away from Enlightenment presumptions and broaden our understanding of what it means to regulate public health in a non-anthropocentric and de-centred manner. We have argued that a failure to recognise the interdependence between humans and nature unnecessarily limits the scope of public health law and creates barriers to achieving desired public health outcomes. Additionally, the focus on the state as being the only legitimate regulatory actor in the public health space limits the impact of effective, more integrated public health interventions led by non-state actors, particularly in the context of First Nations land management and in a globalised world. What does this mean for the reframing of public health law into the twenty-first century?
We need to begin by reconceptualising the definition of public health law. Returning to Gostin, Wiley, and Frieden’s definition of public health law:
Public health law is the study of the legal powers and duties of the state to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good.Footnote 92
The implications of our argument in this chapter are that the definition of public health law needs to move away from its roots in the Enlightenment by addressing its anthropocentric and positivist foundations. The core of public health remains prevention. But effective prevention can only occur by, the evidence, understood broadly, tells us, acknowledging, understanding, and addressing the interconnectedness of people, animals, and the environment. Prevention is also the role of everyone; there are a variety of actors with formal and informal regulatory functions in this space. Building on Gostin, Wiley, and Frieden’s definition, a new definition of public health law that moves on from its Enlightenment roots could be:
Public health law is the study of the formal and informal regulatory tools used by state and non-state actors to assure the conditions for health (to identify, prevent, and ameliorate risks to health in the populations of humans and animals and in the environment).Footnote 93
If we reformulate the definition of public health law in this way, what may some of the practical implications of this be? Currently, actors, government or non-governmental, are often both highly siloed and give pre-eminence to the concerns and needs of humans. A major reconsideration of the structure and scope of organisational actors would need to occur to enable a One Health-influenced definition of public health law. Decentring public health law from government recognises the broader range of actors in the public health space. It also acknowledges that the impact of capitalism and other political trends sees many governments continue to retreat from comprehensive engagement in the business of prevention, leaving that space open to non-state actors, particularly at the global level. This reformulation has the potential for the employment of and valuing of a wider range of evidence in public health law; important given that what we have traditionally considered evidence is also impacted and constrained by Enlightenment thinking.Footnote 94 To address public health effectively, One Health reminds us that we need to attend to our interdependencies with each other, with other animals, and with the environment.Footnote 95 The more holistic approach suggested by One Health is critical to the continued evolution of public health law as the twenty-first century progresses.
