Norberto Andrade, European Commission, Joint Research Centre (JRC), Institute for Prospective Technological Studies (IPTS)
Abstract
Law, Foresight and Big Data are three strangers. Future-oriented legal studies are rare and, what is worst, the ones that exist lack a proper methodology, failing namely to encompass the use of forecasting methods or foresight tools that rely upon the analysis of enormous amounts of available data. Given this notorious lack of methodology in the legal analysis of the future, this paper takes the first steps in filling this gap, recommending the application of a foresight methodological approach (modeling and simulation techniques) based on the exploration of Big Data to the process of law-making. Hence, the paper provides the first attempt to establish a dialogue between Law and the Future through a Big Data angle.
In order to connect the field of Law to the field of Foresight, the paper first embarks in a brief theoretical excursion on the concept of ‘Future’ and its implications to Law. In this way, this article presents three possible conceptualizations of the idea of Future that Law may be confronted with: a) the Future as Monstrous (and thus unpredictable); b) the Future as Clean Slate; and c) the Future as a Matrix of Possibilities. Each of these conceptualizations may lead to very different attitudes and actions on the side of Law (and its actors and interpreters). Bearing in mind that the first two conceptualizations listed above should not be undermined or disregarded, the paper will nevertheless argue in favor of the third one. In effect, the Future as a Matrix of Possibilities constitutes the most adequate and balanced conceptualization of Future that Law should endorse, carrying the benefits of the other conceptualizations of the future and corresponding legal attitudes (Future as Monstrous and Future as Clean Slate), while avoiding their defects and excesses. Afterwards, and as a way to pursue such particular conceptualization, the article stresses the urgent need for Law to embrace and uptake the use of foresight tools as a way to explore the potential and resources of Big Data.
The increasing availability of information in electronic form and the computing techniques and processes for exploiting such data constitute the most recent methodological developments in the field of foresight. Through the use of modelling techniques and simulation platforms, the anticipation of the future is increasingly being carried out through the advanced tools that help process, search, mine, organize, display and interpret electronic information resources. The escalating use and relevance given to ICT tools in foresight illustrate, moreover, how the techniques used to envision the future have grown in complexity and sophistication.
The application of modelling techniques to law-making activities represents a step further in the use of ICT, Artificial Intelligence (AI) and other advanced computer applications in the legal domain. Up until now, the application of ICT to Law has enabled the development of new models for understanding and working with legal systems (through, for instance, knowledge based systems and intelligent information retrieval). With the development of a new generation of foresight tools that discern and make sense out of Big Data, the impact promises to be even greater. In effect, the application of Big Data-based foresight instruments to Law will enable the development of innovative models for legislators and legal practitioners to better understand the world in which Law needs to operate. ICT developments allow not only for new ways to understand legal systems, but also for sophisticated ways to understand and even to anticipate the world to which laws need to be applied to.
The paper proposes the application of foresight tools, in the context of Big Data analysis, to Law. Taking into account the traditional reactive nature of Law, resistant to change and transformation, the article argues in favour of equipping legal activities with a set of tools, methods and approaches that enable them to acknowledge and anticipate the various possible futures that will guide society. The paper thus argues that law-making processes should be complemented with foresight techniques. Legislators should thus have at their disposal the largest quantity and quality of information available about the society, the people and the environment that their laws address and apply to. The application of foresight to Big Data is, in this sense, a powerful instrument and an important source of information that should be used to improve the legislative making process.
In methodological terms, the paper describes a series of real world examples and case studies - encompassing pilot projects, research consortiums and academic programmes – that are already employing foresight methodological approaches to pursue their objectives. Based upon such examples, the article explains the various benefits that the application of specific foresight methodological approaches to Big Data (such as modeling techniques and simulation platforms) may bring to the area of legislative drafting.
This paper thus attempts to provide an introductory reflection on the (rather neglected) relationship between Law and the Future, through a methodological approach based on the analysis of Big Data. Through such analysis, the paper underlines the roles that foresight can play in managing the uncertainty and addressing the challenges that Law needs to cope with in terms of legislative making. Rather than today's primarily `reactive' work, according to which Law responds to observed economic trends and already-occurred societal events, the paper demonstrates that Law will need to focus on proactive, future-oriented analysis and techniques. Furthermore, in offering a series of specific cases and examples of foresight tools applied to Law, the paper also attempts to illustrate some of the benefits and advantages that these instruments may carry to Law, such as the promise of rendering Law into a more creative and transformative activity.