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What Is Legal Futurism?

Law 2050 is concerned with the future of law, legal practice, and legal education. The study of these three topics is often broadly described as “legal futurism” or “legal futurology.” Although there is a robust discourse today about the future of legal practice and legal education, less attention has been devoted to systematic study of the future of substantive law and legal institutions as a discipline. For example, in 2011, the Hague Institute for the Internationalisation of Law (HiiL) convened dozens of legal experts and experts from other disciplines to consider the evolution of law over the next 20 years. As Hiil’s name suggests, the focus of the proceedings was on the global scale (more on what HiiL produced in later posts). Hiil’s premise was that there was a need for more directed and focused effort in legal futurism. As Hiil explained in its report, Law Scenarios to 2030:

Legal futurists are not widespread among legal scholars and practitioners. compared with the extensive body of literature on the history of law, there is limited scholarly work on its longer-term future. Some scholars do focus on the future of law, but through very particular prisms, such as how technology will change it. Others address the future of only specific legal areas. Sometimes the future of legal traditions is questioned. On the whole, the limited time horizon of lawyers tends toward use of the most recently adopted law or court decision; they then look back and argue whether that particular law or decision will or will not work. Instead of systematically studying the future and future uncertainties, the lawyer’s way of dealing with uncertainties is to act through unadapted and contemporary norms, decisions, and institutions.

Speaking more succinctly, in a 1980 Law Library Journal article titled Legal Futurology: The Field and its Literature, David Funk, who was on the law faculty at Indiana-Indianapolis at the time, argued that

[m]ost legal thought is lavished on interpreting records of the past or reinterpreting them for guiding behavior in the present and immediate future. Even legal policy analysis and legal impacts studies typically deal with effects of one legal rule or another over a few decades. Most of our attention should be devoted to immediate problems. But a few legal scholars much of the time, and many legal scholars some of the time, can afford to project their thought about law farther into the future. Those who do may find the exercise beneficial, even for study of our legal past and present.

So what, exactly, is legal futurism? What does it mean for lawyers to “systematically study the future”?

First it’s important to identify what legal futurism is not. Funk identified three imposters:

  • Short-term trendcasting based on extrapolation from recent legal history. In this genre the author identified a recent trend in the law and forecasts its further development over a relatively short time span. Evidence of the trend and the argument for its future development are drawn primarily from the legal history, with little or no development of future scenarios based on non-legal context.
  • Normative arguments for legal reform framed without reference to alternative future states. In this genre the author frames legal reform as if it were an inevitable future development, but offers little or no support beyond the author’s normative perspective in what the law should be. The argument lacks context to determine what the world would look like without the reform.
  • Contingency lists. In this genre the author lists alternative paths and contexts for legal evolution but offers no assessment of relative likelihood of different scenarios.

The problem with these three approaches is that they are mostly about law, not about the future. They construct a law of the future without first seriously asking what the future is likely to be. Legal futurism reverses the thrust, examining likely future scenarios and asking what the law might look like for them. To be sure, the answer will depend on history, norms, and contingencies, but the point of legal futurism is to start with a well-conceived vision of a future scenario and work toward law from there, not vice versa. In climate change adaptation legal studies, for example, we rely on forecasts of future climate states and human responses–e.g., sea level rises 3 feet along the New Jersey coast and the official policy is to retreat from the coast–to explore legal developments into that future based on existing legal baselines and different normative perspectives. Legal futurism thus depends in large part on other disciplines to inform reasonable and robust projections of future trends and scenarios. The HiiL project, for example, drew on interdisciplinary research to identify and define future trends such as increasing population, greater scarcity of food and resources, increasing security threats, more economic globalization, greater diffusion of global power, and increasing access to information (see its 700+ page full report, The Law of the Future and the Future of Law).

Legal futurism focused on the practice of law is in full throttle these days. Plenty of it is hype, but very good work is coming on line. For a sobering view of how Big Data and vastly improved computational capacities are likely to change legal practice at its core, see Dan Katz’s forthcoming work in the Emory Law Journal. Legal futurism is not, however, taught in any systematic way in law schools. Futurism is a significant component of the curriculum in some other departments, such as sociology and business schools, but law students generally are not taught to think much about the future. I think it should be.

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