The law isn't just a set of constraints – it can also be a site of innovation | Law

The law isn't just a set of constraints – it can also be a site of innovation

OPINION: Professor Fleur Johns, The Guardian, 16 September 2014.

In the late 1970s, as the global human rights movement was hitting its stride, a small group of lawyers in New York working at a not-for-profit called the Centre for Constitutional Rights (CCR), dusted off a little known law and used it to file a civil suit in New York. Their target was a former Paraguayan police chief, Americo Norberto Peña-Irala, and the litigation related to Peña-Irala’s abduction, torture and killing of another Paraguayan national, 17 year old Joelito Filártiga, in Paraguay in 1976.

Against all expectations, they won on appeal in a ruling which law students around the world study today.

Courts and commentators have had a lot to say about this case since, not all of it favorable. The story I would like to highlight here, however, is not one of the relevant legal arguments, or even the Filártiga family’s tragic struggle, but rather the remarkable creativity of the lawyers’ actions.

CCR lawyers took a few lines of 18th century writing – lines that no one had thought concerned human rights (or indeed thought about much at all) – and made of them something entirely new.

The 1789 law in question – known as the Alien Tort Claims Act (ATCA) – gave US courts the power to hear and decide upon a claim by an alien (or non-citizen) that they had been the victim of some violation of the “law of nations” or breach of a treaty to which the US had signed on, wherever that wrongdoing may have occurred. Its origins are murky and contested, but early usage revolved around state-to-state disputes concerning capture of vessels at sea and attacks upon diplomats.

There were a few 20th century cases before Filártiga in which ATCA complaints were made. Nonetheless, Filártiga represented the first instance of lawyers successfully using ATCA to defend the rights of individuals protected by international human rights law.

By remaking ATCA’s meaning, the CCR lawyers not only changed US law, they changed, too, how we think about different legal systems’ relationship to one another. In Filártiga’s wake, it became more and more feasible to contemplate courts trying people accused of especially heinous illegal acts, regardless of nationality or where the wrongdoing occurred. Changes in law occurred in many countries permitting cases based on what international lawyers call “universal jurisdiction”. No longer were victims compelled, in all instances, to rely upon the court system in their own country.

The CCR lawyers’ enterprise helped to foster, as well, the now commonplace public expectation that the courtroom is a place – indeed, increasingly, the place – to confront serious breaches of international law. Evidence of this can be seen in the media attention devoted to prospects of bringing to trial those responsible for the downing of Flight MH17, in its immediate aftermath.

There are downsides to these developments; one could argue at length about those. Nonetheless, they emerged from an act of startling innovation. And examples of lawyerly innovation – for good and for ill – abound throughout history and across many subfields of law: in taxation law, environmental law, contract law, and beyond.

Yet, it remains uncommon to think about the law as a site of creativity. Law students tend to carry backpacks bursting with ambition, but their goals commonly revolve around making some existing system work better, or working within an institution already in place. Rarely is law understood, by law students, lawyers or the public, as a discipline of design or “blue sky” thinking.

We tend to think of the law as a set of constraints upon us – an elaborate set of “no” statements. Elsewhere, we think of it as akin to plumbing: a matter of laying pipes to help move people and things from A to B, invariably implementing someone else’s idea. There is no Nobel Prize awarded for contributions to law.

If lawyers do innovate in ways largely unacknowledged, so what? It matters that we downplay legal innovation not because of hurt feelings or want of recognition on the part of lawyers (really, who cares?). Rather, it matters because it lets lawyers off the hook too easily for the design decisions that they make and the distributions of authority and resources that these effect. It matters too because of the lost opportunity that this non-recognition represents.

Recognising law as a field for making and remaking things, ideas and relationships might encourage greater understanding of the potential embedded in the law. It might also enrich our view of innovation: as not just about bringing into being a new balance sheet, app or widget, but also about the painstaking, collaborative unstitching and re-stitching of how we see the world, how we relate to one another and how we might yet do so.

Fleur Johns is professor of law at UNSW, working in international law and legal theory.

This article first appeared in The Guardian.