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.