Rethinking Reactive Lawmaking for foresighted regulation

The rapid development of exponential technologies such as artificial intelligence (AI) and the converging crises of climate change pose significant challenges for humankind. These challenges are likely to have a profound impact on the way in which societies are governed and how laws are created and enforced.

As we face an increasingly complex and rapidly changing world, governments will go through a range of challenges in regulating and navigating exponential technologies. At the same time, they must address the converging crises of climate change, including mass displacement, extreme weather conditions, and environmental degradation, while finding ways to ensure the survival and prosperity of future generations. Simultaneously, states have to cope with a normative powershift from governments and law enforcement to the private sector – the drivers of change.

Upcoming challenges for Law and Governance by the exponential development of technology

The Web has become an increasingly large space in the everyday lives of people around the world. Yet, governments hardly get a regulatory handle on it. The emergence of metaverses, Blockchain and AI only accelerates the need for sufficient virtual governance. However, reactive law-making is simply too slow for adjusting to the fast-paced development of exponential technologies.

Moreover, as the world becomes increasingly interconnected, it will be necessary for governments to develop robust frameworks for international collaboration, in order to effectively manage and balance global issues as neither AI nor climate change stops at any national border. This will require governments to develop multilateral agreements and institutions that are capable of addressing these changes sufficiently.

However, emerging technologies can also be used as regulatory tools themselves, with artificial intelligence and blockchain-based applications such as smart contracts becoming part of the regulatory toolkit of states. This presents an opportunity for governments to use these technologies to regulate i.e. virtual spaces.

In doing so, the definition of what law is and how it is applied might become increasingly blurred. As we enter the era of the internet of things (IoT), virtual governance might steer away from written to coding languages.

At the Institute for Legal Transformation, we thus rethink law by researching the law of the future. Thus, in this article we share our insights on the essence of law and how it may transform for shaping healthy and prosperous futures for further generations.

What is law?

Human-made Law is a fictional construct that has evolved over time to govern and regulate society. It is based on societal values and beliefs, and can be shaped and changed with the needs and beliefs of a particular community or culture.

Law is flexible

Law is often seen as a rigid and unchanging set of rules, but in reality, it is simply a reflection of the values that societies and governments have agreed upon. This means i.e. that when values change, so can the law. This flexibility allows us to rethink and redefine the role of law in society in response to changing realities, such as the exponential growth of new technologies and the converging crises of climate change.

Moreover, legal history shows that what is considered legal or illegal is often only a temporary definition. For example, slavery was once considered legal, but as societal values evolved, laws were changed to reflect these new values. This demonstrates the potential for law to adapt and change in response to changing societal realities.

Law is a fiction

Law can be considered a fiction that reflects the values and beliefs of a society. To date, these fictions are based solely on the interests of humans, with non-human beings mostly excluded from access to rights. However, as law is flexible, the fictions on which the law is based can change in the future as well.

The yet fictional concept of planetary health for instance, recognizes the interconnectedness of human health and the health of the planet, and offers an alternative to fictions that are based on exploitation by providing new values to guide our actions. This includes the understanding that the health of humanity is inextricably linked to the health of nature as a whole, and that we must consider the long-term consequences of our actions on the planet.

Law is a tool

Finally, law is a tool that can be used to turn fictional concepts into reality. This may seem abstract at first, but history has shown that many ideas, such as women’s right to vote, only became normal in reality after they were cast into law.

The future is yet to be shaped and law can be a powerful instrument in creating a future that reflects our values. Governments have the power to use law to enforce certain values and interests. In the face of disruptions such as exponential technologies and converging crises, law becomes a critical tool for adapting societies to change by proactively defining desirable futures and codifying appropriate laws that are aligned with respective values.

Reshaping the Future by Rethinking Law

As law is just a fiction, it can be altered or modified alongside the evolution of our knowledge. Science has given us a great deal of understanding about our surroundings, including the effects of human activities on the natural world and the significance of sustainability. This understanding can be used to reshape and guide the beliefs and principles we hold, including the belief in limitless consumption of limited resources that has been prevalent in capitalist cultures.

In order to achieve a healthy and prosperous future, it is necessary to rethink traditional, human-centered approaches to law and consider the needs of the entire ecosystem for maintaining it for future generations. Indigenous peoples have long understood and practiced the concept of holistic ecosystem health, and it is now time for modern societies to adopt this understanding and incorporate it into our laws and practices as well.

Law plays a critical role in shaping societies and the relations they practice within itself as well as other groups and species. It is therefore important that laws reflect the values and beliefs of a society, and promote the well-being of both people and the environment. In order to ensure that values like healthy ecosystems are sufficiently embedded into enforceable law, legal Transformation provides a methodology based on comparative law and foresight and futures techniques.

Foresighted Law through Legal Transformation

The development of proactive regulations based on foresight techniques and comparative law is the core of the Legal Transformation methodology. It is an alternative to reactive legislation that aims to anticipate societal disruptions before they occur and to proactively develop legal guardrails for emerging changes.

Legal transformation can help governments and businesses develop foresighted, values-based regulations by codifying values such as the health of the planet into enforceable policies. These can then guide decision-making and ensure that the long-term well-being of the planet and future generations are considered.

Additionally, legal transformation can enhance the development and enforcement of foresighted, value-based regulations by exploring the use of innovative legal instruments and approaches. Regulatory sandboxes, for instance, that allow companies to test new technologies and business models in a supervised environment, can also function for testing prototyped policies. In this way, regulations can be tested as well before being applied in yet uncertain and unregulated areas.

Shaping the Future 

The future of law depends on the governance decisions made today. The Institute for Legal Transformation advises policymakers on the future viability of law by providing consulting, training, and conferences. Contact us via our Website to begin shaping the future of law and governance.