Monday, August 31, 2020

The Spirit and the Letter

As the new school year gets underway I've been thinking about some of the reading that left an impression on me this summer. Tonight my mind goes to the collection Dreaming Too Loud by the remarkable human rights barrister Geoffrey Robertson, who is known for representing, among others, Salman Rushdie, Julian Assange, the Aboriginal Tasmanian Centre, and A.S. Neill's Summerhill School. His other books include Crimes Against Humanity: The Struggle for Global Justice and Who Owns History? Elgin's Loot and the Case for Returning Plundered Treasure. A man of uncommon moral clarity and a wickedly sharp turn of phrase, Robertson was once described as "the greatest living Australian" by the now much missed Christopher Hitchens.

I was in search of insight into the ingenious show that he used to host in the 1980s on Australian public television, Geoffrey Robertson's Hypotheticals (a cousin of the long-running Fred Friendly Seminars on PBS in the United States, and their roots are intertwined, as Robertson relates in his memoir). This brilliantly improvised quasi-roleplaying-game format for supporting public imagination and debate could sometimes be controversial –– the hypothetical transcribed in the book comes from an episode dealing with the politics of media ownership in Australia, which apparently ruffled the wrong feathers, and disappeared without ever being broadcast –– but this is just one facet of a long and colourful career illuminated from many angles in Dreaming Too Loud.

Among the themes of Australian history and society running through in the book is the abysmal treatment of the country's first inhabitants and the need for legal redress: "Restorative justice requires some atonement to indigenous Australians."

I was born in Adelaide, South Australia –– Kaurna Country –– although my family moved overseas when I was very young, and I have had too few opportunities to spend time there since, so my ignorance of the place is sadly extensive. Something I learned from this book is that the Letters Patent issued by the king of England in 01836 that founded South Australia, then the only state free of convicts in a country otherwise settled as a series of penal colonies, explicitly included the following condition:

Provided always that nothing in these Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Land therein now actually occupied or enjoyed by such Natives.

As Robertson points out, almost two hundred years of studied disregard for the letter and spirit of the law were to follow. But this fascinating legal timebomb from the early nineteenth century, a potential basis eventually for the kind of sudden paradigmatic shift that international legal scholars call a Grotian moment, remained, like a cultural earthquake waiting to happen.

Introducing the article 'Give Adelaide Back', he notes:

Adelaide may have been an act of theft, but, unlike most colonial acquisitions, it might one day be returned –– if lawyers in the future can work out how to enforce the patent as the king of England and his Whig ministers, back in 1836, intended. This would provide an example of how, in the law, time past is present in time future.

Towards that end he ventures some legal formulations that might be helpful, including a 'Statute of Liberty', a counterpart to the United States Bill of Rights, which is something that the Australian Constitution has never included. Understandably this is a special point of interest and concern for a human rights lawyer. The proposed Preamble starts as follows:

Whereas the people of Australia, united in one indissoluble Commonwealth, declare it the democratic duty of their parliaments and elected bodies and government officials to uphold, protect and advance their hard-won liberties, and being:

Humble in acknowledging the first owners and occupiers of this unique continent, whose ancestors have walked about on its earth for many thousands of years before British settlement;

Sorrowful for the dispossession, discrimination and degradation they have endured and

resolved hereafter to respect their relationship with the land and to atone for past wrongs by future equity...

This proposed document appears in full elsewhere in the same collection, but Robertson has previously published a whole book setting out the argument, too.

A provision on the Special Rights of Indigenous People is suggested as follows:

Indigenous people have distinct cultural rights and must not be denied the right, with other members of their community:
i) to enjoy their identity and culture;
ii) to maintain and use their language;
iii) to maintain their kinship ties;
iv) to maintain spiritual and material relationships with the land and waters according to their customs of old.

Evaluating the specifics of these proposals is not my purpose here. What catches interest is their force and simplicity as prototypes of legal artifacts from the future –– we might say, time future crystallised in time present.

In the law words have a certain magic. They are used not merely to interpret but to map the very contours of the world. Among its affordances as a practice in our society, then, is the fact that if you can find the right words at the right moment, they can work like a spell. A skilfully woven thread tying past and present facts to tomorrow's legal logic can just about pull a future into existence. I don't know that this fully landed with me in law school –– and there's a bit more to it than that of course –– but after many years of working with all sorts of media and strategies to bring futures to life, I appreciate the potency and currency of words in the legal realm in a different way now.

I've also been tracking a long, slow loop through experiential futures back towards where I began in the law, and the challenges and opportunities of synthesising the two. What radically different arrangements in systems of law and justice might lie on the other side of the racial justice reckoning that we're moving through in America and other settler societies at the moment? In different ways, two enormously inspiring books I've also read in the past couple of months have ushered my curiosity further in that direction; Braiding Sweetgrass by Robin Wall Kimmerer (thanks to my friend Michelle King) and Just Mercy by Bryan Stevenson (thanks to The Ezra Klein Show).

This reminds me –– a professor I recently met from the law school at the University of Pittsburgh, Tomar Pierson-Brown, pointed me to a remarkable series of legal publications called Feminist Judgments that started in the UK a decade ago and set a pattern since borrowed by writers in other common law jurisdictions. Each collection presents a set of historic legal judgments, "using only the precedent in effect and the facts known at the time of the original decision", critically reimagined and rewritten through a feminist lens. I love the depth and detail of this mode of engagement, the counterfactual hypothesising with teeth, the committed performance of principle with far greater groundedness than much of what passes for speculation in some other contexts.

And here again, the summoning of a power in legal writing to dream alternative directions, and not just tell but show the truth of that vital activist and futurist dictum: other worlds are possible.

> Foresight is a Right
> An Artifact from Australia's Future
> On the Money
> The People Who Vanished
> Anything But Text
> Journalism from the Future
> Syrian refugee girls reimagine their futures

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