Law
follows life, and our world is changing at an unprecedented pace. Small wonder,
then, that it seems blue-eyed to think that the framework of rules balancing
interests in such a changing environment will not have to change at equal
speed. Think of the time it takes deliberative democracy to hold a meaningful
public debate among citizens in an open society - most of whom are not at all
familiar with the realities of innovation. So, perhaps for the first time in history,
law will need to be revamped to anticipate and pre-empt the potential subject
matters likely to require future regulation. Visionary legislation – a
contradiction in terms?
Precedents
exist, albeit hardly encouraging ones.
America’s
legislative response to 9/11, known as the USA Patriot Act, was signed into law
by President Bush on October 26, 2001 – all of 45 days after the event. This
massive piece of legislation fundamentally affected not just constitutional
rights as we knew them but also amended a dozen federal statutes, all in the
name of clear and present danger. Headlines make for notoriously bad law, but
it is difficult to believe that much of this statute was not drafted
considerably prior to the actual emergency that enabled its passage through Congress
with barely any debate or opposition. I use this example not as part of some
conspiracy that mushroomed by the dozens around this tragic but, in theory and
concept, entirely foreseeable event. It is part of something even bigger, an
entire legislative and regulatory approach to complexity under conditions of
rapid change for which our systems of governance are alarmingly ill prepared.
Terrorism
has been a serious problem to political leaders at least since the days of the
French Revolution and throughout the 19th century, but has existed even
in the age of Sulla’s proscriptions and probably long before. It is a weapon of
asymmetric, unconventional warfare, a form of leverage by blackmail, targeting
irrational and disproportionate fears in prosperous and stable societies. But
lessons from those ample antecedents unsurprisingly did not find meaningful
reflection in the Patriot Act beyond attempts to band-aid certain symptoms.
Substantively
adequate anticipation of issues and responses seems perhaps the paramount
challenge to the rule of law. Legislatures are easy to blame for failure to
grasp unprecedented events or developments, be they traumata like 9/11 or the
much farther-reaching revolutions in gathering and processing data, in
biomedical research, in robotics and artificial intelligence, in novel
instruments of speech or self-expression. Dispassionate analysis of 9/11
invariably leads to the conclusion that the U.S. government did have sufficient
data to predict the attack but it did not have analytic capabilities to manage,
connect and interpret its aggregation of Big Data. The resulting expansion of
NSA data gathering has only yielded quantitative gains without a quantum leap
in qualitative analytic and synthetic capabilities, and that deficiency persists
to date. As a result, conflicts between constitutionally protected interests
and with strategic international relationships have abounded, but no significant
conceptual solution has appeared.
