The Law of the Future

It is perhaps best that I start my first column with a brief introduction about what will feature most visibly in what I write. It will help the reader determine whether to look out for the next one or not.

Our world is more globally volatile than ever; an event in one place quickly has consequences in many other places. It is more connected than ever: people, ideas, and things travel very fast. And it faces a multitude of challenges that are in different ways ‘global’. In such a world good rule systems are important. They enhance stability, trust, and cohesion. At certain moments in history however, changes in the way people interact necessitate system-jumps in the way rules are made and enforced. I think we are facing such a change now. And I am driven by trying to understand what these changes are and how we can best deal with them.

Our world is a National-International-Public-Private world (NIPP). The idea of organising human activity principally within the confines of a state and at the public level has reached its limits. But transnational governance is difficult. Legitimacy of international governance structures is not evident. And can you trust rules made by business and NGO’s?

We need more prospective strategic thinking about law coupled with more deliberately organised justice innovation. We must go beyond isolated responses.

Foresight methods are one way of getting to understand today’s justice challenges. With the Law Scenarios to 2030 we have tried to build wind tunnels of possible legal futures, based on thorough trend research, in which legal strategies of countries, international organisations, businesses, and civil society organisations can be tested whether they are robust, given current trends.

The global legal environment presents two high impact key uncertainties for governments, business, and civil society organisations:

• Will the predominantly nationally based legal environment continue to internationalize of not?
• Will the predominantly public legal environment continue to evolve to mixed public-private or even predominantly private regimes or not?

Four scenarios can be constructed around these questions.

In the Global Constitution scenario, the expansion of international rules and institutions continues with the public state as its firm foundation. The UN definition of the rule of law is the main reference point for all. The once clear boundaries between national and international law have broken down, creating a multi-layered system with hierarchy and conflict rules. International institutions are powerful actors. There are different regulatory models. Sometimes the international level defines general goals, leaving it up to the national level to choose the means. In other cases, the means, including enforcement, are more or less dictated from above. Regional organisations are a key element of this world; they often channel the resistance if global governance goes too far. Global constitutionalism is continuously being developed by global, regional and national courts.

Legal Borders is the opposite of the previous scenario: here the process of the expansion of international rules and institutions stops and is even reversed. In this 2030 public state law dominates and (sub)regional organisations emerge as a key part of developing legal borders to keep out globalisation. Business pushes for internationalisation but the political environment does not support this. The global legal environment is fragmented. International courts are of little relevance. At the international level there is little law; most of what goes on is politics. The United Nations looks more like a United Regions. Its legal activities are limited: multilateral treaties are out. The EU has become a ‘fortress Europe’. The number of (sub)-regional organisations has mushroomed. There is hardly any talk of ‘universal’ norms; regional and sub-regional interpretations of human rights and rule of law proliferate.

Legal Internet sees a 2030 in which transnational private institutions are the main producers of rules and enforcement mechanisms. Governance has (largely) privatized; the state is small. Public rules have largely been replaced by standards to which a sector commits itself. With that, mobilization of shame, fear of reputational loss, and instant mobilisation of voice through loosely organised collectives are important enforcement mechanisms. The absence of clear, all encompassing organising principles, like for example the principle of legality, makes the global legal environment confusing and unstable. It is however a very flexible and adaptable environment. Government is still there, but only where it has clearly shown it can be relevant.

Legal Tribes is the most difficult scenario. Here the process of internationalisation reverses but it is combined with a growing importance of private legal and governance regimes. In the most positive version this scenario sees a world of largely unconnected communities that largely govern themselves. In a more negative form it is a world with many failed states. Legal borders consist of mostly private regimes. The most stable communities are part of a small state structure that takes care of issues like crime and some health and environmental issues. Some of these minimal states are also part of regional structures, which only deal with security. Enforcement is largely a private affair.

The strategy processes that I have done with government and business have shown, firstly, that justice or legal strategies are generally implicit, if present at all. Secondly, they seem to show that assumptions on what may happen are generally a linear projection of what is happening today. For governments, that means that Global Constitution is the main track. For international business it’s Legal Internet. So, in so far as there are bets, all bets are on one horse. Lasty, I generally see a lack of systemic thinking. Lawyers think in terms of the next judgement and the next law.

Scenarios are, as a tool, simplifications. Reality is not that neat. But they can help take you out of linear and cocooned thinking and help us see where we need to innovate. And that is badly needed. Our NIPP world of today demands it. The law of the future is too important to just let it ‘happen’ to us.