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.
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