The Perspective of Law in its Context:

Law as a Concept in the Past, in the Present and in the Future As many think pieces show, the law of the future requires new rules and principles, new and improved legal institutions, and sometimes a re-definition of familiar legal concepts. As some think piece authors argue, the law of the future also requires re-thinking law, legal scholarship, and legal education. The think piece by Edward Rubin addresses certain as-sumptions about law (and the rule of law) which, so he argues, are rooted in a specific history rather than expressing truths about law per se. Ac-cording to Rubin, when legal scholars and others speak about the law, par-ticularly when they claim that the rule of law is violated in the modern regulatory State, they are relying on the idea that law should prescribe modes of action, should constitute a coherent system, should be generally stated, and should be generally applied. Rubin argues that these are not necessary features of law, as they only reflect the particular way that law was used as an instrumentality of governance in pre-modern Europe. The advent of the administrative State and democratic government renders that approach obsolete. According to Rubin, the new approach that is develop-ing, and will constitute the law of the future, is that law should prescribe results, not procedures; that it need not possess any internal coherence;

that it should address each policy issue on its own terms; and that it should treat firms and natural persons on an individualised basis. Those features enable it to serve as an instrumentality of governance for a mod-ern State.

Mauro Zamboni’s think piece concerns the relations of law to politics, which he considers to be one of the major difficulties confronting today’s practitioners and scholars of law. While legal actors are educated in the belief that law and politics are two distinct worlds, when faced with real issues, so he argues, they are forced to deal with the very responsibil-ity of choosing a political course for an entire communresponsibil-ity. Seeing the transformational space of law-making as the space in which the values or ideas produced inside the political arena are transformed into legal catego-ries and concepts, the primary purpose of this think piece is to look at the way forward with respect to the relations between law and policy.

Introduction

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The law of the future does not only require new concepts, it may al-so require new ways of teaching. Clark Cunningham would like to see legal education follow the same development that medicine went through some decades ago in terms of a powerful new model of education: the teaching hospital staffed by physician-scientists. But as Miguel Poiares Maduro points out in the last think piece, this looking beyond the borders of one’s own field will not come naturally to legal science and education.

According to him, on the one hand, the legal field does not ‘authorise’ any other social scientists to research the study of law (the presumption being that legal education cannot be understood or questioned by non-lawyers);

on the other hand, there is a tendency to focus exclusively on what law it-self is, and consider issues of education as unworthy the attention of law-yers.

4. An Outlook

So what does this eclectic collection of think pieces teach us about trends and challenges for the law of the future? This is a question that we must subject to a lot of exchange and debate – and we will, – so we cannot fully answer it. We can, however, venture a few, first conclusions.

A first trend, which will not come as a surprise, is internationalisa-tion. Nowadays, it is a cliché to argue that internationalisation is a major trend, but the think pieces that address these processes show both the sig-nificant consequences of internationalisation and the fundamental nature of this trend. If a global law perspective is deployed, such as the perspec-tive Twining advocates, law cannot be practiced and taught as it has been practiced and taught in the past. We see from this and the previous vol-ume of The Law of the Future of the Future of Law that internationalisa-tion touches upon many areas of law. This volume adds some quite fun-damental questions and perspectives to processes of internationalisation.

The rise of new connections between different layers and sectors within the legal order should be mentioned as a second trend. A few ex-amples: whereas Cisse, Biebesheimer and Nash observe new connections between security, justice, and development, Dumas, Scott, and Lawton emphasise connections between official law created by public authorities and processes of self-regulation. Trade law and intellectual property law are also increasingly affected by other issues than just trade and intellec-tual property, respectively.

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The latter also point to a third trend. After a period of exponential expansion of international law, we are increasingly confronted with the limitations of international law. It appears difficult to change the behav-iour of legal actors with international law only. The international and the local need to be linked. Citizens, large corporations, public organisations, and even governments may be confronted with international law, but this does not mean that they comply with it. Social, cultural, political, and economic incentive structures appear persistent and not apt to change.

A fourth related trend that should be mentioned is connected with the limitations of international law. As international law further evolves, it appears to be confronted with legal pluralism that does not automatically converge. The case of China is mentioned in several think pieces, but the think piece of Dragos shows that even convergence of legislation does not mean that legal practices have also converged.

A fifth pervasive trend concerns new technologies. The internet, au-tonomous robots, geo-engineering, and connected bio-, neuro-, and nano-technologies do not only compel governments to create new regulation but these technologies also question some of the basic principles on which law has been built (for example, property and intellectual property).

To those who have heralded internationalisation and the rise of in-ternational law, these trends may seem rather pessimistic. It appears that we have left the frontier phase of internationalisation (through the creation of international law) behind, a phase in which everything seemed possi-ble. Instead, a more realistic picture of internationalisation emerges in which we observe a number of challenges.

A first challenge can be referred to as a true internationalisation of law. Even in highly internationalised areas of law such as competition law, it appears that national or regional law prevails. True internationali-sation also means that more justice is being done to the needs of regions, countries, and actors outside the US and Europe. If their interests are bet-ter taken into account, the face of inbet-ternational law may change quite sub-stantially.

A second challenge is related to the increasingly multi-level and multi-layered character of the legal order. This challenge may be referred to as creating connected law. The law of the future requires well-developed and sometimes surprising connections between different layers and areas of law and different levels of rule-making and law enforcement.

Introduction

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The third challenge is a largely conceptual challenge. In many areas of law, familiar legal concepts are increasingly out-dated or lacking: data protection, autonomous robots, geo-engineering, and the internet. Refer-ring to this challenge as purely conceptual may be misleading. This chal-lenge is not a mere theoretical or academic chalchal-lenge. If new concepts are not created soon, the regulation of technologies worldwide will be under-mined.

A fourth challenge for the law of the future relates to change man-agement. Both ambitious and realistic strategies are needed to innovate legal and justice systems. A well-balanced strategy of ambition and real-ism takes both future challenges and trends, and the context in which im-plementation takes place into account. We must learn more about how to do this well.

Connected with this is a fifth challenge we see: the urgent need for mechanisms to cope with legal pluralism in a global context. If legal sys-tems are not well understood within their social, cultural, political, and economic contexts, we run the risk of developing the wrong solutions for regulatory or legal problems. The think pieces in this volume demonstrate some of the confusion and misunderstanding that result from ignoring le-gal pluralism.

The trends we have derived from the think pieces may cause some pessimism among the pioneers of international law and internationalisa-tion. In the realm of legal internationalisation, the discourse of utopianism or outright rejection is being replaced by a discourse of messy processes, long-term perseverance, and realistic strategies. This is not pessimism. It appears that both practices of legal internationalisation and the study of these processes are maturing. And that is a ground for optimism.

There is no doubt that more trends, challenges, and questions, can be deduced from the think pieces in this second volume of The Law of the Future and the Future of Law. We welcome you to the debate.

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