Why and How

In June of this year, the world convened in the Rio+20 Conference to tackle huge global environmental challenges, and the leaders of the G20 met in Los Cabos, Mexico to deal with the global economic crisis. What can these events tell us about the future? An obvious conclusion is that there continue to be global challenges for which global approaches are clearly needed. We also see different approaches to these challenges.

Rio+20 was a conference under the auspices of the United Nations (UN), a formally structured international organisation. Los Cabos was host to the meeting of an informal leaders network; reviews of both conferences were generally of ‘the glass is half empty’ type. Not enough real progress, not enough real change. Looking deeper, however, the two events also re-veal an ‘iceberg’ effect with most media reviews focussing on the top of the iceberg (the States and leaders that met). Underneath that top, howev-er, a huge swathe of non-State Parties met, interacted, committed, and participated. This lower part of the iceberg is more difficult to see and un-derstand, and is more chaotic. What does jump at you, however, is that there is a lot of organisation of interconnectedness around challenges hap-pening in smaller, more local networks. Both events also show the inter-connectedness of things: the conclusions of both conferences do not only relate to ‘the environment’ and ‘the economy’, but include many other ar-eas and challenges, such as social exclusion, rule of law, equality, and so on. The events also reveal different uses of law: Rio+20 is largely

* Sam Muller is Director of the Hague Institute for the Internationalisation of Law (HiiL).

** Stavros Zouridis is affiliated with the Tilburg Law School as Professor of Public Administration.

*** Morly Frishman is Justice Adviser at HiiL. Laura Kistemaker is Head of External Relations, at HiiL.

 Laura Kistemaker is Head of External Relations at HiiL.

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grounded in the language and mechanisms from the more formally organ-ised UN system of organisations and treaties. The Los Cabos language and approach seems less formal and legalistic.

All this is the law of the future at our doorstep: using law as a tool to deal with societal challenges and to organise stability and prosperity.

Law’s future should mobilise at least as much scholarly attention as law’s past and present. This conviction inspired us to develop a Law of the Fu-ture network that aims to provoke fuFu-ture research and debate on law and legal institutions. As we soon found out, however, researching and debat-ing somethdebat-ing that does not yet exist cannot be done with familiar meth-ods. Mapping the highly uncertain future of law requires specific method-ologies and strategies derived from the field of foresight studies. Because of the specific nature of law, these methodologies and strategies cannot be mechanically transplanted to the legal realm. Gradually, we have thus de-veloped a research strategy for legal futurism. It builds on in-depth expert knowledge of lawyers and legal scholars; the trends and developments ob-served in different areas of law; the imagination of leading thinkers, re-searchers, and practitioners; and, most of all, critical reflection and debate.

This volume is an expression of this strategy.

As said, the future of law does not exist yet and we assume that it is highly uncertain and complex. This should, however, not withhold us from systematically analysing and scrutinising it. In our view, ignoring or merely speculating is not an option. Ignoring the future opens the door to law becoming irrelevant, unstable, and dysfunctional because it cannot keep up with societal developments and is not constructed systematically enough. It also bereaves the world of fully using a tool, which if used well, can contribute tremendously to stability. But how to systematically analyse and scrutinise something as complex as law that is not even there?

A first step requires mapping of what is there: major trends ob-served in different areas of law. Together with the first edited volume of The Law of the Future and the Future of Law (published in 2011), this volume aims to provide a contribution to such a map. Both volumes com-prise of think pieces, written by leading thinkers and doers in the field of law. In these think pieces, the authors address a set of questions based on their expertise on specific areas of law or legal issues. The questions we have posed to the authors are:

What legal trends are we likely to see in your field in the coming two to three decades? How do these trends relate to

Introduction

Law of the Future Series No. 1 (2012) - page 3 the grand societal challenges that the world faces? In light of

these trends, what do you see as the most significant chal-lenges for the development of the law? And, which recom-mendations would you have in terms of (i) strate-gies/policies; (ii) research agendas; (iii) training/education for the lawyer of the future?

Thus, the authors were asked to reflect on what they think will hap-pen in the coming decades. The think pieces are not meant to be elaborate academic papers, but short essays in which the authors can freely share their thoughts on the future. Therefore, the authors were asked to mini-mise the use of footnotes when making references. “Sources and Further Reading” sections included at the end of think pieces list sources provided by the authors and additional literature for further reading. We think this may strengthen the ability of the book to serve as a catalyst at this stage of development of this new field.

Mapping legal trends and challenges provides some clues on the fu-ture of law, but whether these trends will continue or reverse is highly un-certain. Rather than work on predictions (impossible), we work on prepar-edness. We therefore used the think pieces that we collected in The Law of the Future and the Future of Law volumes to build scenarios. What will happen if the trends stop or even reverse? What will be the impact on the future of law? A second edition of the Law Scenarios to 2030 was pub-lished in June 2012 (http://www.hiil.org/publication/law-scenarios-to-2030).

But mapping legal trends and building scenarios once is not enough, because new trends may evolve. Any serious attempt to grasp the future of law should therefore continuously include new trends, new ideas, and new imagination. This understanding has led to this second volume on The Law of the Future and the Future of Law.

Again, the volume has been built upon three assumptions. First, it is impossible to predict the future – there is too much uncertainty and com-plexity for that. However, we can face the future better by mapping ma-crotrends and microsignals and preparing for plausible scenarios. Second, the future of law can only be understood by deploying a multi-disciplinary approach – law is not something that can be separated from life. Lawyers and legal scholars have written many think pieces in this volume but we have also included think pieces by scholars from adjacent academic disci-plines. Third, law’s future can only be understood if a variety of ap-proaches, areas of law, and ideas are taken into account. As Surowiecki

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has convincingly argued, the wisdom of crowds is largely based on diver-sity, different ideas, observations and opinions.¹

The final step of our research methodology consists of exchange and debate. What the thought and practice leaders have written here and what we have deduced from that in this introduction and in the Law Sce-narios to 2030 should be subject to constant discussion and exchange.

Earlier this year, for example, we engaged justice leaders from Tunisia with the Law Scenarios, trying to work out what some of the trends that emerge mean for national strategies to reform the legal system. We also continue with the Law of the Future conferences, bringing people together around future challenges. The 2012 conference will focus on rule-making.