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.
Lack of consistent and compelling answers and methodologies for shaping policy means that not enough individuals possess the knowledge and awareness required to frame and publicize the questions: in our time, it is entirely possible, indeed quite often typical, that R&D of enormous portent for all mankind is carried out within a minuscule community of sufficiently advanced subject matter experts who, at the time issues are framed and development paths are mapped, number fewer than a thousand in a world of soon-to-reach seven billion carriers of human life. It is a self-selecting group working under procedures determined only by de-facto realities and accountable to no one but the randomness of their conscience and awareness.
Yet, society cannot afford to have critical areas of research, science and entire future industries shaped, limited, and determined to a large extent by lobbyists and “market forces” unaccountable except to constituencies that can often be identified in retrospect only – for the simple reason that a market, which does not yet exist, is defined and attempted to be shaped by the powers dominating the very markets it is created to replace.
The same applies to fundamental reforms of organizations on all levels, be they Congress, corporations, the U.N., or critical industries with towering players: to reform every single one of them would require consent and participation of those very forces and interests that any worthwhile reform is likely to aim at curtailing or making entirely redundant. It took all the wars and revolutions of the 20th century just to bury antiquated monarchical orders and soften nationalism across Europe and Asia. Let us remember that, during the same fin-de-siècle when Einstein was formulating Special Relativity and other minds mapped the early fundamentals of rocket science, Kaiser Wilhelm II engaged in a passionate debate whether the future would belong to the automobile or the horse – and sided with the horse, deeming the combustion engine “only a passing phenomenon.” This also provides a glimpse into the deleterious influence of the cost and absurdity of attempts by conservative forces to “delay progress” instead of anticipating and integrating it appropriately. Generally speaking, the fierce and effective resistance of the status quo leaves little hope for incremental change – more often than not, fundamental change has come in the wake of monumental shake-ups only.
But given military technology, this planet, its people, its environment and what passes for its civilizations can no longer afford to prepare the ground for acceptance of inevitable transformations by means of cyclical warfare and socially destructive upheavals, or even by slow if educational debates. Time, and what happens during it elsewhere, is an unmerciful and invincible taskmaster.
Post-2007, a global financial crisis has uncovered potentially fatal flaws in multilateral diplomacy and its consensus-building organizations. In the European Union alone, decisions involve 27 national parliaments. A partisan, gridlocked U.S. Congress cannot even agree on a national debt limit, much less on fundamental reform in any area of future importance (immigration comes to mind among countless others). Rapid response looks different, but the majority of future crises will require prompt response more than it will accommodate procedural due process.
This conclusion would be even more strikingly obvious in the case of a common threat to mankind: risks posed by an object from outer space, a genuine pandemic, or the advent of a technological singularity: artificial intelligence that surpasses the ability of its creators to control it. The only plausible way the certainty of this development will be avoided is if humanity expires for an unrelated reason earlier.
Government by emergency powers must, on the other hand, never become the norm because the speed of change will grow faster than our ability and means to educate. An accelerating pace is becoming the rule, not an exception. Unless we are prepared to accept as an “emergency” each systemic failure to anticipate an event or development, fundamental change of how legal norms are forged and applied must come sooner rather than later.
It is fair to conclude that dispute resolution, issue adjudication and appellate review also cannot much longer follow existing models that are all heavily distorted by paradigms like the “billable hour” that reward time spent, not time saved. Prompt, adequate and effective legal solutions require time sensitivity to increase by geometric growth regardless of usage or tradition. This might lead to an increase in formalization as unnecessary individual aspects carry unsustainable systemic cost.
What may seem at first glance like a far-fetched exercise in legal science fiction does, in fact, have much closer and already fairly palpable implications for our here and now.
Today, technology presents dramatically underestimated legal challenges that can only multiply.
As our ability to gather and analyze massively complex data and to interpret heretofore unknown potential relations between its elements grows exponentially with every cycle of Moore’s Law, it sends impulses across all areas of cognition: medicine, art, teaching, engineering, communication, vision, and forecasting. All of those change their paradigms with a speed and consequences that we no longer make time to digest with profound reflection.
As man and artifice begin to merge, our civilization approaches notions of “transhumanism,” and even the foreseeable reality of a “technological singularity” draws nearer with uncomfortable acceleration.
The point in time when artificial intelligence will have surpassed human intelligence may yet lie beyond the horizon of the lifespan of any human being currently existing. But we have to face inexorable certainty that our debate about this can only orbit around the question when, not whether it will happen. Unless we become one with our creations, as the Neanderthal genes have continued to survive in us once they encountered and dissolved in homo sapiens, the technological singularity will turn into reality with adverse consequences for our raison d’être.
I think of law as of congealed reflection. It must not lend itself to knee-jerk reflexes, nor should its nature be so circumstantial and “socratic” that the application of a newly created rule loses precedential value. And yet, while we may comfort ourselves that certain abstract “humane principles” underlying a rule will somehow not change as the world to which they are applied changes in unrecognizable, previously unimaginable ways – this reassuring notion would simply not be true. It cannot be true because technological development will also affect the priority afforded previously sacrosanct notions, such as “human life,” “bodily integrity,” or “religious freedom.” We know that because, in our very recent conscious past, we have already seen it happen to the formerly well-defined and not long ago still sacrosanct concept of “expectation of privacy,” or to the once considerably larger scope of “privilege.”
History is replete with examples refuting the notion that technology can somehow be avoided or its creation be “controlled.” Conservative opposition to the steam engine, the automobile, mobile telephony or stem cell research all proved fairly fruitless. And while some still keep the debate alive whether cell phones cause brain tumors, the answer may change what technology we use but it will not change that we carry communication devices with us. Religious beliefs and pressures have led to otherwise less likely medical techniques including “bloodless surgery” or derivation of stem cells from adult rather than embryonic sources, but they have not stopped the preservation of life by means once thought improper by religious doctrine – and it has not been possible to show a benefit outside the postulates of religious doctrine. Even disasters such as the nuclear meltdown at Fukushima have not significantly altered the extent of our use of nuclear technology.
Frontiers of law no longer run across dividing lines rationally determinable by broad political debate because, as the development of representative democracy has shown, the general public cannot really be educated to a meaningful degree about issues like nuclear energy, genetically modified organisms, mining and drilling in ecologically sensitive protected areas, nanotechnology or government surveillance. It comes down to a contest of spin doctors who distill factually irrelevant sound bites for broad public consumption, and to the sources and control of funding of their handiwork’s airtime. To say about this process that it represents a “vote of the people” is about as cynical as calling “voluntary” the cooperation of a prisoner faced with a life sentence in the event of failure to testify against his co-conspirators. “Informed consent” has to look otherwise in any era short of 1984.
In an open society, law requires broad acceptance of legitimacy, not just resigned acknowledgment of inevitability. Legitimacy, in turn, requires value judgments including qualitative factors such as equity and fairness, but also minimal procedural qualities of its historical genesis.
For example, our law on reproductive rights and technologies or the application of the Fourth Amendment to digital records has developed in the last decades with glacial speed. In response to that experience, we must start a robust and vigorous discussion now about events involving the status of science and technology predicted already today for the 2050s. Because law is inherently slow at adapting to change while technology embraces even profoundly conceptual innovations with not fully known consequences very quickly, democracy faces two other massive problems: adequacy of the education of its voter base to make sound judgments, and new procedural concepts accommodating minimum standards of legitimacy and rational governance in the public interest.