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Thursday Thinkpiece: Glenn on the Future of the Future

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The Future of the Future
H. Patrick Glenn

in The Law of the Future and the Future of Law, Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker, Eds., Oslo: Torkel Opsahl Academic EPublisher, 2011

Excerpt: pp. 385-387, 391-392

[Footnotes omitted. They are in the original that is available via the link on the title above.]

2. The Concept of the Future and Its Possible Decline

We know the future in opposition to the past, and the future is therefore present as the ultimate destination in a linear progression from the (even distant or ‘deep’) past through the present (always with us) to the future.

We think of the future as an element in this linear concept of time because we have been taught to think so for millennia, and the primary foundation for this concept of linear time, or time as an ‘arrow’, is probably religious, since the ultimate goal of salvation cannot occur in our present state but must be deferred. This linear idea has now become profoundly rooted in Western language, thought and practice (time which ‘goes by’, ‘time is money’, ‘billable time’) but its empirical foundations are now questioned not only by non-Western legal traditions which do not subscribe to it but by Western science and Western philosophy.

Western science now challenges the notion of time as a universal, standing outside of all contexts and spaces. Time thus exists within space, in ‘space-time’ or in a ‘block universe’, and there would be no flow to it whatsoever. It is not an arrow but an envelope, or cloud, and all processes would in principle be reversible, however improbable statistically. There would be no place for something known as a future and the new scientific measure of time is B.P. (before the present), with no future measurement whatsoever. In Western philosophy Charles Taylor has most recently questioned the practice of Western thought of thinking in terms of ‘verti- cal time-slices’, such as ‘the eighteenth century’, holding together myriad happenings both related and totally unrelated to one another. A leading historian speaks of a linear concept of time as involving ‘temporal struc- tures we erect to impose order on the worlds of memories we have con- structed’.

If our future begins to look more and more like a kind of enlarged present or simply ongoing life, what effect might this have on our concept of law?

3. Law in a World with No Future

The thought may appear initially depressing, though this is a conditioned reflex. Life goes on; it is simply not conceptualised as extending beyond the present, into a future. We only live in the present in any event. There may be consequences of this, however, for the way in which law is thought of and used.

Stephen Toulmin has recently examined the intellectual foundations of ‘modernity’ over the last four centuries, finding them in what he calls ‘certainty’, ‘systematicity’, and the ‘clean slate’. Certainty could be brought about by systematicity and implemented on a ‘clean slate’. The ‘clean slate’ here represents the future, an uncluttered world where con- temporary rationality could implement any number of grand and lesser designs. State construction was the largest exercise of Western modernity, built on a purported clean slate amenable to national law-making. In the late twentieth century, law books were still being written with titles such as Shaping the Future: New directions for legal services.
If the future is removed from our ways of thought, however, we are faced (only) with the present, and it is not a clean slate. It is rather filled with existing institutions and laws, which can only be improved upon and refined in the absence of any possibility of their being futuristically swept aside. Amartya Sen therefore argues that substantive justice must be the preoccupation of lawyers and political thinkers, particularly in developing countries, and that it is inadequate and fruitless to continue to think in terms of ‘transcendental institutionalism’, the construction of entire sets of (new) institutions which will magically solve all present problems. As Toulmin puts it, “[a]ll we can be called upon to do is to take a start from where we are, at the time we are there …”.

If this should be the non-utopian objective, how might it be realised in different areas of law and legal activity?
. . . .

6. The Legal Professions

The legal professions are in the difficult position of responding to the pressures of globalisation while maintaining the ethical and disciplinary standards which are those of a liberal and independent profession. In the United Kingdom and Australia the professions have been judged critically by the governments of the day, and disciplinary proceedings have been taken away from the professions and vested in state agencies. Elsewhere the challenges are equally persistent. State political boundaries are increasingly judged to be unacceptable as territorial limits on the practice of law, while technology assists lawyers in practising without regard to concepts of territorial localisation.

To the extent professional structures remain national in character, or even urban or regional, there is therefore a serious problem of professional response to trans-border cases of unethical professional conduct. There have been partial responses to this problem. There is a trans-European Code of Conduct for Lawyers in the European Community, which articulates both common rules and what can only be described as a choice of ethics rules, based on geographic factors, to deal with differences across the European professions. There are non-binding codes of legal ethics in the American federations of the U.S.A. and Canada, though in all these cases there has been no creation of a trans-border disciplinary authority.

The situation greatly exacerbates the major disparities in the structures of the professional discipline in national jurisdictions. The 2008 Report of the Council of Europe on European Judicial Systems indicates striking differences in the rates of disciplinary proceedings against lawyers per one hundred thousand members of the national population. In Finland there are 245 such proceedings annually, in Sweden 117, in Italy 1, in Monaco, Andorra and Montenegro 0. There are certainly similar disparities within the NAFTA countries, given the diversity among U.S. states and the absence of professionally-controlled disciplinary proceedings in Mexico.

It appears the professions must develop procedures for trans-national control of unethical practice. If they do not do so they will lose the control which they presently exercise. An intermediate form of solution, short of creation of transnational professional authorities, would consist in cross-border collaboration of existing national structures, such that consultation would take place on questions of jurisdiction and there would be inter-jurisdictional recognition of disciplinary judgments. The question of how to resolve substantive ethical questions is best resolved by adopting the highest standard of those which may be in present in a particular case. In any event, questions of legal ethics will occupy a larger place in bilateral or multilateral agreements on lawyer mobility. The recently con- cluded Quebec-France agreement on the professional mobility of lawyers provides for no testing of knowledge of substantive law but concentrates on knowledge of ethical standards.

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