Volume 2, May 2002
Richard Haigh* and Mirko Bagaric**
*Senior Lecturer, School of Law, Deakin University; Senior Advisor, National Judicial Institute and Adjunct Professor, Osgoode Hall Law School.
** Associate Professor, School of Law, Deakin University.
Abstract: The time may not be far away where we may be able to live much longer than we do now – potentially forever. This will have an enormous impact on the way people live their lives as the underlying premise that life is finite underpins many of the central decisions and life choices we make. This paper outlines some philosophical and legal doctrines that are based on the premise that life is finite and some of the changes that may need to occur in light of medical advances in ageing. In particular, it focuses on the changes to sentencing law that may be necessary to accommodate increased human longevity. For the skeptics who refuse to accept the concept of immortality, the arguments presented do not depend on living forever. Some of the issues discussed here are also relevant, albeit in an attenuated manner, because of increases in human longevity that have occurred in the last 100 years.
Babies born 30 years hence may grow up with such perfect cellular maintenance that they will never age, dying only by accident or choice. Will we get the benefits of these discoveries? Maybe not – we might be, sadly, the last mortal generation. But who knows – if we can keep ourselves alive and healthy, maybe some of these treatments will be retrofitted into our ailing bodies and make us new again.... If you are lucky you may see 3000, or even live indefinitely. We need to discuss, well ahead of time, whether that would be desirable. Me, I’m voting for life over death.
The purpose of this paper is to raise awareness of how the prospect of immortality and increasing human longevity may affect established legal doctrine. Increasing life span has important implications for most areas of the law and many legal principles will need to be modified to accommodate this. This paper discusses one area of law which we believe is sensitive to increasing human longevity – criminal sentencing. Before doing that, we set the background by discussing scientific developments in ageing research. This is followed by a brief discussion of the moral implications of immortality. In the last section of the paper, we examine the potential ramifications of increased longevity on sentencing law.
The assumption that people will normally die within about five to eight decades from birth underlie many fundamental legal principles and maxims. However, these assumption should no longer be taken for granted. Scientists are currently suggesting that, in the near future, like all biological processes, ageing can be stopped or at least significantly delayed. It may soon be the case that the only people who die are those who elect to or are involved in serious accidents. Even if immortality is unattainable in the short term, it is certain that as a result of advances in medical treatment the average human life span will continue to increase. Already, life expectancy in Western nations has almost doubled in the past century and indications show that human life span will continue to increase.
If the duration of human life will change, continued application of some current legal principles will have serious negative implications on the legal and social systems. For example, a fifteen-year jail term for murder may seem appropriate on the basis of present day life span estimates; however, it may seem entirely inadequate when the offender is likely to live for another 180 or 200 years. Even more questionable is a fifteen-year jail term for murder where the victim could have lived forever.
Although medical and scientific advances may be leading to immortality, it is not going to happen overnight. Nevertheless, this is an issue that we believe justifies immediate attention. We second the opinion that, ‘[i]t is no more dangerous to exercise a little imagination about our future than it is dangerous to fail to be prescient about possible surprises’. To help avoid serious social, political and legal problems, the response to legal issues related to increasing longevity and/or immortality should be proactive.
The experience regarding superannuation provides a good example of the significant difficulties that can occur when policymaking on ageing is developed in haste without adequate forethought. Due to the absence of foresight regarding funding problems that would occur as a result of increased longevity, superannuation law has developed in a reactionary fashion. This trial and error process has resulted in literally thousands of legislative and policy changes to the superannuation area over the past decade, leaving most of the community and the superannuation industry itself in a state of confusion regarding their respective duties and entitlements. This miasma exists now and will continue to do so well into the foreseeable future.
2 Scientific Advances in Ageing
Many may consider the concept of immortality a fantasy, so wild that it stretches the imagination beyond its limits. From the time we learn to speak one of the most fundamental and unwavering truths instilled in us is that we will die one day. While immortality appears to be an unrealistic claim, it may be no more incredible than the notion of air travel was to people many years ago.
Advances in microbiology and genetics have given new glimpses into the potential life span of a number of organisms. The science is complicated and for our purposes there is no need to do more than lay a basic foundation for the view that immortality is possibly achievable. Cells in our bodies can be classified by longevity into two types, mortal (regular skin, muscle and nerve cells) and more or less immortal (cancer, sperm and ovum). One of the main differences between the two is that the repeating dioxyribonucleic acid (DNA) strings that cap off chromosomes or telomeres do not shorten during cell division of immortal cells. Less than fifteen years ago the enzyme telomerase was discovered in a single-celled protozoan. It was found that this enzyme acts in immortal cells to repair the telomeres. In 1998, it was shown that activating telomerase in mortal cells gives them a longer life by knitting new DNA onto the ends of chromosomes. In simplified terms, telomerase seems to slow down, or sometimes turn off, the genetic clock that ticks away in each mortal cell.
At the same time, biogerontologists have been able to show that genetic factors play a large role in the ageing rates of whole organisms. By selectively breeding longer-living fruit flies, researchers were able to dramatically increase their life span and in longer living earthworms, a longevity gene was successfully isolated. Although other factors such as the environment and metabolic capacity do play a role, the signal importance of genes is only beginning to be understood.
The very existence of genes that can be controlled suggests that isolating a few critical processes or genes may be enough to slow or halt aging and extend the life span of organisms. Experiments with yeasts, worms and fruit flies have borne out these hypotheses. While the research has not moved beyond these relatively simple organisms, there is a degree of excitement amongst scientists that the preliminary findings on ageing mechanisms may soon apply to more complex organisms. Thus, showing that organisms have a fixed life span may be no longer valid. There seems to be increasing scientific consensus about increased longevity and potential immortality. Enough at least to warrant a discussion on the side effects of increased longevity on the sociopolitical aspects of human existence, such as law.
3 Immortality and Morality
(i) Pragmatic Considerations
Theoretically, moral discourse should play an important role in determining whether anti-ageing technology ought to be developed and utilised. There is, however, an important paradox that operates here. The hope of immortality has the potential to so drastically change human living conditions that pragmatism will conquer (moral) principle. This is more a reflection of human nature than the theoretical bounds of moral discourse. History has taught us that when the prize is high, morality tends to take a back seat.
Human beings – both as individuals and collectively in the form of states or countries – have refused to be constrained by moral principles. They have been prepared to commit almost unthinkable atrocities such as murder, rape and torture in order to pursue self-interested objectives like conquering a portion of land or fulfilling some supposed ‘noble cause’. On a personal level, individuals regularly flout moral constraints when they think it is in their personal interest to do so or where the cost is negligible. Common examples are the white lies that are told during a job interview and the secrecy surrounding infidelity. The general pattern in these cases illustrate that the greater the prize, the more people are willing to violate important moral proscriptions in order to obtain it.
When one reflects on what people are willing to do in the name of honour, financial gain or territory, it seems fanciful to think that moral constraints could serve as effective barriers to the pursuit of the greatest prize of all: eternal life. In other words, the desire to attain immortality may be so strong that moral objections are unlikely to stop it. As such, it is expected that humans will aggressively seek to develop anti-ageing technology and will enthusiastically avail themselves of the products of that technology.
(ii) Ethical Issues
Despite the pragmatic considerations outlined above, it may be necessary to consider the possible moral/ethical objections to immortality. In relation to most morally questionable practices there are two types of objections that are usually raised. First is the argument that a practice is intrinsically morally objectionable. The second objection is that the practice is wrong due to negative consequences that flow from it. The distinction between these two objections is important. Once opposition to a practice is grounded merely in possible adverse side effects stemming from it, the door is left open for proponents of the practice to irresistibly press their case by implementing safeguards nullifying the possible collateral harm.
Looking at the first type of objection, opponents of immortality might assert that it necessarily violates some important norm that makes it inherently morally wrong. The claim that certain practices are intrinsically morally wrong has been made by those opposed to euthanasia and abortion. It has been argued that euthanasia and abortion are wrong because they violate the right to the life. The important feature of this type of objection is that it does not rely on the potential undesirable consequences of a practice to justify its wrongness. In the case of abortion and euthanasia, this type of objection ensures that the debate does not automatically focus on the possibility of appropriate safeguards to address incidental undesirable consequences stemming from the practices. Supporters of the practices are instead forced to first overcome the threshold issue of whether the practices are morally wrong per se.
Within the debate on immortality an argument along these lines is not tenable. Infinitely extending life does not necessarily involve the infringement of any type of recognisable human right or interest. The only party directly involved in the process is the person whose life has been extended. There is no question that such a party has not had any of his or her interests violated; in fact the opposite is true, as free will has been expressed as a desire to prolong life.
The second line of argument objecting to immortality is stronger. Parties that could be indirectly affected by immortality raise the issue that longer life may lead to undesirable social consequences. Increased longevity or immortality will result in a population increase to a point where the world could not sustain any more people, possibly causing a freeze on procreation. The parties that could be most adversely affected by this are the distant or not yet born generations that will be deprived of existence due to the infinite or vastly increased life span of the present generation. However, it is unclear how much weight should be given to the interests of future generations. Eminent ethical philosophers such as Peter Singer and Derek Parfit concede that the ethical choices that involve bringing a being into existence are amongst the most perplexing moral issues. It appears that the answers to such questions depend largely on the moral theory one adopts. In this regard, there are two main types of contemporary moral theories.
The first theory is the non-consequentialist or deontological school of thought. Proponents of this theory claim that the appropriateness of an action is not contingent upon its instrumental ability to produce particular ends, but follows from the intrinsic features of the act. It is for this reason that the notion of absolute, or near absolute, rights is generally thought to sit most comfortably in a non-consequentialist ethic. Consequentialist moral theories claim that an act is right or wrong depending on its capacity to maximise a particular virtue, such as happiness. The leading contemporary non-consequentialist theories are those which are framed in the language of ‘rights’. Rights talk transcends all areas of moral discourse and is now the conventional moral currency. There is no shortage of rights based theories; they mainly differ on the precise rights which are claimed, the basis of the rights and the absolutism with which they are applied. The main role of rights in deontological theories is to protect people from being compelled to do something against their wishes simply for the good of another or for the general good.
Under a non-consequentialist rights-based notion of morality it would seem that the rights of future generations carry very little weight. A characteristic feature of most rights is that there is a correlative duty. Thus, the right to be brought into existence would depend upon there being a duty on people to procreate. Joel Feinberg asserts that the rights of children are contingent rights, contingent upon the child’s birth. Thus, a child does not have the right to be born, but if it is born, then ‘various interests [she or] he will come to have after birth must be protected’. Even if it does make sense to assert that as yet unidentified potential beings have a right to be brought into existence, this right must be balanced against the right of existing people to maximise their longevity. There is certainly no reason to believe that the contingent right should prevail, although as we have argued previously, due to epistemological difficulties with the concept of non-consequentialst rights, there is no principled basis for weighing competing rights claims.
The second view is that of the utilitarian (consequentialist) account of morality. Here, a stronger case can be made against immortality. It could be argued that the utility of time diminishes as it becomes more abundant. That is, that there is an inverse relationship between the amount of time available and the amount of happiness that is generated by each unit of time. There seems to be some attraction to the argument that ten people living 100 years each will experience more net happiness than an individual who lives for 1,000 years. This conclusion is by no means certain. It could be countered that it is far greater to lose something which someone possess (life) than to never experience it at all. Hence happiness would be maximised if the 10 potential people were not brought into existence. Overall, it would seem that given the speculative nature of such interests it is simply not clear how the utilitarian scales weigh up in this regard. There is obviously ample scope to postulate further regarding the manner in which the utilitarian calculus should be resolved. Even if the sums ultimately stack up against the pursuit and attainment of immortality, it is not likely to subside progress towards the search for greater longevity for the reasons stated earlier.
4 Legal Changes and Immortality: Sentencing
How the law should adapt to make allowance for increased longevity or immortality is a difficult issue. The law tends to regulate areas of important human concern. If much greater longevity continues or immortality is achieved some things will become less important and others will take on greater significance. Exactly how a dramatically increased life span will change the legal system and society as we know it is a topic that will test even the most grandiose imagination. It is apparent that there will need to be drastic changes in the areas of family, probate, and employment law, for example. Rather than embarking on this uncertain path and theorising about possible changes to the human condition as a result of immortality, we focus on one basic change that will need to be made to legal principle assuming that living conditions and human aspirations remain relatively similar, that is sentencing principles. This is not the only change that will need to occur, nor the most significant. However, criminal sentencing rules illustrate a practical dimension to the discussion thus far.
Sentencing and Proportionality
Increasing human longevity will have significant ramifications for sentencing law and practice. The manner in which we presently punish those who break the law is very sensitive to fluctuations in the human life span. This has always been the case but it is a point that has thus far been completely ignored by the legislatures and courts. A continued failure to acknowledge this may impair the capacity of the criminal justice system to process and achieve its goals.
Sentencing law and practice will need to change to account for increasing human longevity to ensure that sentencing continues to fit the crime committed. The intuitively appealing notion that the punishment should be commensurate with the seriousness of the offence is given formal legal recognition through the principle of proportionality. The principle of proportionality operates to ‘restrain excessive, arbitrary and capricious punishment’ by requiring that the punishment does not exceed the gravity of the offence. This principle is more fully explained by the High Court of Australia in Hoare v The Queen which stated that ‘[a] basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances.’
Proportionality is one of the main objectives of sentencing. In fact, the Australian High Court decisions of Veen (No1) v The Queen and Veen (No 2) v The Queen have gone as far as pronouncing it the primary aim of sentencing in Australia. It cannot be trumped even by the goal of community protection, which at various times has also been declared as the most important aim of sentencing. Proportionality has been given statutory recognition in most Australian jurisdictions. For example, in Victoria the Sentencing Act 1991 (Vic) provides that one of the purposes of sentencing is to impose just punishment, and that in sentencing an offender the court must have regard to the gravity of the offence and the offender’s culpability and degree of responsibility. The Sentencing Act 1995 (WA) states that the sentence must be ‘commensurate with the seriousness of the offence’, and the Crimes Act 1900 (ACT) provides that the sentences must be ‘just and appropriate’. This is true in many other jurisdictions as well. For example, in relation to the Canadian sentencing system it has been noted that, ‘the paramount principle governing the determination of a sentence is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence’. Similar views are expressed in the White Paper underpinning the Criminal Justice Act 1991 (UK), which declares that the aim of the reforms is to introduce a ‘legislative framework for sentencing, based on the seriousness of the offence and just deserts’.
Viewed more closely the proportionality principle has two limbs. The first weights the seriousness of the offence and the second weights the severity of the punishment. The principle then prescribes that these limbs should be in equilibrium. In order for the principle to operate properly, it is important to understand how human life span affects both limbs.
This is more obviously the case in relation to the severity of the punishment. The harshest form of punishment found in most Western countries’ criminal justice systems is incarceration:
The loss of freedom imposed upon a prisoner deprives him or her of a finite resource, namely time. ... Death is a certainty for everyone, and it can therefore be argued that all prisoners must inevitably experience an irreplaceable loss of time."
The primary reason, therefore, that imprisonment is regarded as a harsh punishment is that it deprives offenders of a finite resource – namely time. When this resource is more abundant, it logically follows that for the same intensity of punishment to be inflicted a longer sentence must be imposed. A twenty year term of imprisonment is likely to cause a lot of hardship in the context of a 60 year life span, but is likely to be viewed as merely a hiccup in a life lasting 200 years. The same argument holds true for other criminal sanctions such as fines and licence disqualifications. These punishments also depend upon a finite conception of the human life span. To account for this relativity, the most obvious response is to tie the length or (in the case of fines) magnitude of the penalties to increases in average human life span. Thus, offences which attract a 10 year term of imprisonment in the context of a community where average life expectancy is 80 years, should be increased to 15 years when the average life expectancy is 120 years. Even a one thousand-year term of imprisonment is inconsequential in the context of an immortal life. Accordingly, consideration will need to be given to a new range of criminal sanctions. To this end, new sentencing options could include the annulment or suspension of an offender’s academic qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.
The proportionality thesis is also complicated by the fact that the severity of many crimes (in terms of their effect on the victim) may change as a result of increased human longevity. For example, an injury sustained as a result of an assault which takes a year to heal may be less significant in the context of a 200 year life than a 70 year life. On the other hand, a homicide offence may be far more serious when a life is cut short by 180 years as opposed to 50 years. It is obviously even far more serious when the life that is cut short would have been indefinite. On the other hand, property offences may be relatively less serious as the victim has more time to recover the loss. For example, a $1000 deprivation is likely to be less consequential in the context of a longer lifetime where a victim accumulates $5 million in resources than when, due to a shorter lifetime, a victim only accumulates $1 million. Issues such as these have been ignored in most studies on sentencing. It is important that adjustments to offence seriousness are consciously made to reflect the changing gravity of criminal offences in terms of the effect on the victim. It needs to be borne in mind how victims will overcome an offence given the time and resources that they have and the impact that this has on their life overall. The relative nature of time is missing from most sentencing calculations.
Human longevity is increasing at a rapid rate. So much so that the prospect of immortality in the not too distant future is no longer merely science-fiction. There are tenable moral arguments that can be made against the pursuit of immortality or significantly increased human longevity. Regardless of the logical force of such arguments, they are unlikely to curtail the pursuit of increased longevity. Quite simply, the prize is too great to be frustrated by an appeal to a normative standard. History shows that in such circumstances self-interest is likely to prevail.
Hence, scientific advances in anti-ageing technology are likely to continue at a rapid rate. The purpose of this paper is to raise the awareness of lawyers and law makers of two important issues. First, that scientific advances in anti-ageing technology will not abate and secondly, that this fact underlies the need to develop and refine legal principle. Although focus was given to sentencing, it would not be difficult, however, to multiply such examples. It is hoped that in cases where time and human life spans are relevant, a central consideration in law reform proposals will be to assess how increasing human longevity affects legal doctrine.
 D Broderick, ‘Eternal Youth? It’s all in the Genes’, The Age (Melbourne) 19 April 2000: http://www.theage.com.au/news/200000419/A12020-2000Apr18.cfm.
 See John Wilmoth, ‘The Future of Human Longetivity: A Demographer’s Perspective’ (1998) 280 Science 395; see also the special issue of Science, volume 275, 1996 devoted to the issue of ageing.
 M McGee, ‘Ethical Issues in Genetics in the Next 100 Years’ http://health.upenn.edu/~bioethics/genetics/articles/3.mcgee.kobe.cfm.
 We will provide a brief overview of the literature in this area, and refer interested readers to more detailed material on the topic.
 See, eg, Kristin Leutwyler, ‘Turning Back the Strands of Time’ (Feb. 2, 1998) Scientific American 36.
 See Jeffrey Kluger, “Can We Stay Young” (Nov. 25, 1996) Time 70.
 A G Bodner et al, ‘Extension of Life-Span by Introduction of Telomerase Into Normal Human Cells’ (1998) 279Science 349.
 See L S Luckinbill et al, (1984) 38 Evolution 996.
 See D B Friedman & T E Johnson, (1988) 118 Genetics 75.
 See, for example, S M Jazwinski, ‘Longevity, Genes and Aging’ (1996) 273 Science 54.
 Ibid. See also L Guarente et al, ‘Aging, Life Span and Senescence’ (1998) 95 Proceedings of the National Academy of Science 11034; Lakowski and Hekimi (1996) 272 Science 1010.
 Conferences on the scientific advances in aging are now commonplace – stretching human life span is no longer the province of ‘charlatans and hucksters’. See G Kolata, ‘Pushing Limits of the Human Life Span’ The New York Times (New York, USA), 9 March 1999, F1; D Banks, ‘Telomeres, Cancer and Aging’ (1997) 278 Journal American Medical Association 1345; M Fossel, ‘Reversing Human Aging: It’s Time to Consider the Consequences’ (1997) 31(4)The Futurist 25. For a more guarded view of cellular effects and their relationship to ageing in humans, see T de Lange, (1998) 279 Science 334; J Wilmoth, ‘The Future of Human Longevity: A Demographer’s Perspective’ (1998) 280 Science 395
 See P Singer, Practical Ethics (2nd ed, CUP, Cambridge, 1993).
For example, see J Rawls, A Theory of Justice (Belknap Press, Cambridge, Mass, 1971).
See W N Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays, in W W Cook (ed), (Yale University Press, 1919) and his notion of claim-rights.
 J Feinberg, ‘Is There a Right to be Born?’ in J Feinberg, Rights, Justice and the Bounds of Liberty (Princeton, Princeton University Press, 1980) 211.
 M Bagaric and R Haigh, ‘Loyalty and the Law: Dealing Legally with Mothers, Archbishops and Football Clubs’ (2001) 10 Nottingham LJ 1.
 This is the same argument (in the context of money, rather than time) used to justify progressive taxation.
R G Fox, ‘The Meaning of Proportionality in Sentencing’ (1994) 19 Melbourne University Law Review 489, 492.
 (1989) 167 CLR 348, 354.
(1979) 143 CLR 458, 467.
(1988) 164 CLR 465, 472. More recently, the High Court has endorsed the importance of the proportionality thesis in R v Ryan  HCA 21.
For example, see R v Channnon (1978) 20 ALR 1; R v Valenti (1980) 48 FLR 416, 420.
 Section 5(1)(a).
 Section 5(2)(c).
 Section 5(2)(d).
 Section 6(1)(a).
 Section 429(1).
 Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa, 1987) 154.
 Great Britain, Home Office, White Paper, Crime, Justice and Protecting the Public (London, HMSO 1990), para 2.3. For judicial endorsement of the principle in the United Kingdom, see R v Skidmore (1983) 5 Cr App R (S) 17, 19;R v Moylan  1 QB 143, 147.
 The obvious exception being the United States, where the death penalty is still available in many States.
 A Ashworth and E Player, ‘Sentencing, Equal Treatment and the Impact of Sanctions’ in A Ashworth and M Wasik (eds), Fundamentals of Sentencing Theory (Clarendon Press, Oxford, 1998) 251, 259-60.
 This has been argued as a useful approach even in today’s communities: see M Bagaric, ‘New Criminal Sanctions: Inflicting Pain Through the Denial of Employment and Education’ (2001) Criminal Law Review 184.
 It could be countered that murder is just as serious and the loss is just as great irrespective of how many years the victim has lost. Certainly this is the conclusion that follows if one adopts the view that all life is equally sacred. However, on close reflection this may not be consistent with conventional moral thinking. For example, many people believe that euthanasia is justifiable only where the patient is terminally ill. Quite often, but certainly not always, the level of grief expressed towards the passing of very old people is less than in the case of younger people. Hence, the adage, `at least she/he had a good innings'. In any event, it is clear that this is an issue which requires detailed normative evaluation.
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