Stephen Backhouse is a lead judge at The DaVinci Awards® and The Cloud Awards. Stephen is a chartered accountant and chartered tax adviser, with a wealth of specialist law knowledge. Here, he shares his opinions on how innovation has always been at the forefront of the legal field.
Some may think it a little odd that law and innovation can be mentioned in the same breath. At first glance the law can appear very staid, plodding and antiquated – I for one do not expect to see legal gowns on the catwalk at Paris Fashion Week any time soon.
Despite this, I think no matter what your preferred theory of jurisprudence and where law itself comes from, you would be hard-pressed to categorically deny that law can be seen as trying to find (or impose!) solutions to problems, real or perceived, in our society.
When viewed through this lens, it can be much easier to see how law can be seen as just as innovative as software is in our technological age, simply acting over different timescales.
The first innovations in law
As a simple example, Magna Carta, first issued by King John all the way back in 1215 enshrined the concept of a trial by a jury of one’s peers into the law of the land. This is a rule thought so fundamental to our modern society that we can barely imagine a world without it, and one which has become part of the formative documents of national constitutions across the globe.
At the time, this was a groundbreaking idea – that for equity’s sake someone should be judged not by their liege lord, but by the average citizen, to try and improve the independence of proceedings. Though I daresay if a jury was invented in modern times, we’d be more likely to call it a “crowdsourced judicial truth solution”!
Better call the history books
Slightly less facetiously — and as a case study in how law can find different solutions to the same problems, and in doing so, evolves and innovates to better meet the needs of the time — take accidental injury.
There was legal recourse when there were victims of accidental death for hundreds of years, in the form of deodand. If it was found that an object had caused a death, it (or latterly, its value) was surrendered by way of a fine, in order for it to be applied to good causes.
An intellectual cousin to this was the Saxon/Germanic ‘weregild’ – where if one person was injured or killed by another, intentionally or accidentally, money could be paid from the perpetrator to the victim to prevent a feud.
However, neither of these solutions endured. Weregild fell out of favour in the medieval period as justice for violent injuries moved from personal retribution to criminal punishment. Deodand did not survive the industrial revolution. As accidental death could no longer only be caused by something as simple as an axe or a plough, the imposition of the value of a steam engine or an industrial mill became seen as disproportionate.
Therefore, a new solution to the problem of accidental harm was needed; this problem was addressed by the innovation of the modern law of negligence. In the English and Scottish systems, this was demonstrated through the 1932 landmark case of Donoghue v Stevenson. Here the innovation was to expand the pool of people to whom compensation was available, from contracting parties and anyone directly maimed (rather than made ill in other ways), by using the “neighbour principle”. This recognized that anyone who could reasonably be expected to be harmed by another person’s actions is owed a duty a care.
This principle is alive and well today in common law systems, and goes a long way to protecting people from accidental injuries. It acts both as a deterrent to potential perpetrators — making them think twice and put systems in place to prevent harm — and offering a recourse for victims for their suffering.
Pre-emptive innovation in law
However, negligence can be seen as having two major failings. Firstly it only acts after harm has been suffered. Secondly, the fact it is a remedy only available to those who can access justice – those in the most deprived segments of society can be left unprotected.
As the twentieth century progressed and unionised labor became a more important part of society, these failings were addressed by safety legislation and regulation to protect not just workforces but also the general public. Here, the innovative thinking was that action could be taken pre-emptively, punishing dangerous situations as well as actual harm. Furthermore, action no longer needed to be taken by individuals. Public bodies such as OSHA in the US, HSE in the UK and others like it across the world can act independently to protect the public, and are much better resourced than the people they seek to protect.
You can see how the law has sought to address the problem of protecting people from harm, and how this has has changed over the centuries. First, from surrendering the instrument causing the harm (as if the object was at fault!), then to holding people accountable for harms they should have foreseen themselves causing others, and finally to proactively addressing unnecessary dangers before harm occurs. Each solution fit the needs of the societies they were in, and each change required innovative thinking to tackle how changes in circumstances altered the nature of the original problem.
AI in law innovation: a powerful tool (in the right hands)
This can be mirrored in the practice of law itself. Changes in how legal professionals go about their work can have major impacts on results both for their clients and for the professionals themselves. For the cynical amongst you, I do not mean new and innovative excuses for clients who get themselves tangled up in new regulations, but actual practical solutions to the problems the professional faces!
For example, I was studying around the time when online legal libraries were becoming widespread. For the student, the obvious advantage was time saved looking up cases in the physical library, however this was merely an extension of the original aim of easing the workload of the professional. By speeding along research, the strength of a legal argument made when advocating for a client can be improved, resulting in better outcomes for the client and professionals alike.
However, in a highly-regulated world, with major consequences for both the client and the professional of both success and failure, change may need to be cautious in order to be truly adopted and accepted as part of the modern practice of law.
Despite it being an increasingly large part of modern technology, simply applying generative artificial intelligence without consideration for how it comes to its results or appropriate oversight can be highly flawed and problematic. For those interested in either law or technology, news earlier this year of court submissions relying on AI hallucinated precedents cannot have escaped your notice, and is an object lesson in why caution is necessary.
Although the two examples I have mentioned are both technological innovations to try and speed along the process of building legal arguments (one more successful than the other!), that is not to say that the only worthwhile innovations are only in the adversarial world of litigation, or rely on the application of software. The next great innovation could be as simple as a new way of organising how a practice works, requiring nothing but lateral thinking and a new angle on the world. Either way, I hope you agree with me that the land of novation is as ripe as any other realm of endeavour for innovation.
The DaVinci Awards® accepts nominations for innovations in law and legal systems internationally, throughout the year.
