-Roger Brownsword*
Introduction
In his wonderful book, Human Frontiers (2021), Michael Bhaskar identifies a number of factors that militate against breakthroughs in human innovation and blue skies thinking. One of these factors is that researchers tend to stay within their disciplinary or specialist silos so that they are not exposed to the ideas of researchers who are in other silos. Although Bhaskar is not writing about blue skies thinking in law, there is no denying that traditional legal teaching and scholarship is self-consciously insular in the way that it makes a point of staying within its doctrinal boundaries. The so-called autonomy of law amounts to a silo in which we learn ‘to think like lawyers’, to engage in legal reasoning and practice, and to value doctrinal coherence. Not surprisingly, in this silo, legal thinking tends to stand still and Bhaskar is surely right in arguing that this is no way to encourage blue skies thinking.
In this context, the IJLT series is to be welcomed. Lawyers do need to be in conversation with researchers in other disciplines; and lawyers who are already engaged in law and technology also need to be in conversation with researchers in other disciplines. In this spirit, let me suggest that we can facilitate this outward-looking process by framing our thinking not so much in terms of law and technology, or even regulation and technology, but rather in terms of governance, with both law and technology being viewed as prospective governance projects (Brownsword, 2024).
This suggestion emerges from my own work in ‘Law, Regulation and Technology’, but it is not entirely original. For example, it echoes Peer Zumbansen (2012) in proposing that we should treat ‘governance’ as a bridgehead that enables a meaningful conversation to take place between lawyers and other researchers. Similarly, it chimes in with an observation made by Susana Borrás (2012: 430) when she identifies ‘governance’ as ‘unnamed common ground’ between STS scholars, economists, and political scientists. However, I also want to suggest that, as lawyers, we should aspire to contribute to good governance in our communities and, in particular, to the maintenance of the foundational conditions (for the existence of humans, for their agency, and for the viability of human communities) on which all governance projects are predicated. Given this aspiration, we might find our way to the blue skies.
Governance as a bridgehead
If ‘governance’ is to act as a bridgehead for our conversations beyond the legal silo, we might start with Lon Fuller’s famous characterisation of law as the enterprise of subjecting human conduct to the governance of rules (Fuller, 1969). At the time when Fuller proposed this idea, the emphasis was on subjecting human conduct to the governance of rules. The value of the characterisation was that it underlined law’s commitment to governance by rules; and, it was from this commitment that Fuller was able to tease out some very important ideas about both ‘legality’ and ‘the Rule of Law’, both of which centre on rule by rules (Brownsword, 2022: Chs 4 and 5). With so much attention being given to rules, the idea that law is about governance tends to slip into the background. However, if governance is to serve as a bridgehead in the way that I am suggesting, it needs to be brought into the foreground. We need to start with the idea that law, as a system of rules, is a system of governance.
In the light of these remarks, we find a better starting point in Karl Llewellyn’s ‘law-jobs theory’ (1940). This theory which, it should be recalled, emanated from Llewellyn’s collaboration with the anthropologist, E. Adamson Hoebel, is founded on the basic need that all human groups have for order (for a code of conduct) and for agreed ways of settling disputes. Humans who try to live together without ways of channelling and containing conduct will not be able to plan and co-ordinate their actions; and, without processes for dispute-resolution, conflict will tear the group apart. In short, groups of humans will not be viable and will not flourish without a degree of governance in the way that the law-jobs theory sketches it. Moreover, as groups become more complex and more technologically sophisticated, the law-jobs and, concomitantly, governance becomes more challenging and complex (Bullock et al, 2024: 1-3). So, law is about getting the law-jobs done and, in this broad and functional sense, it is about governance.
So far so good but the reason that Llewellyn was working with an anthropologist was that he was interested in understanding more about the ways in which ‘simpler’ groups did their governance as compared with the highly institutionalised and centralised forms of governance that we identify with modern legal system and nation states. The crucial take-away here is that Westphalian law is not the only mode of governance; there is more than one way of establishing order and more than one way of dealing with disputes. Law is not the only governance game in town (Roberts, 1979).
For lawyers who have already found law and technology—and, these days, this is almost a mainstream interest in law—these remarks will surely strike a chord, chiming in with Lawrence Lessig’s (1999) seminal identification of hardware and software coding as a regulatory modality alongside law, social norms and markets (or other financial incentives or disincentives). If digital technologies can serve legal and regulatory functions, so too can other technologies (such as biotechnologies) which may operate in conjunction with, and as a complement to, law’s rules. Equally, of course, there is a possibility that these regulatory tools might operate in ways that set up a tension with law’s prescriptions. Indeed, a standard line of inquiry for socio-legal scholars is to explore the difference between the law in the books and the law in action; and, for ethnographers, there is much of interest to be explored in the tensions between self-regulation by groups and the community-wide general requirements of law (compare Ellickson, 1991).
If, instead of ‘regulation’ and various regulatory modalities, we frame our thinking in terms of governance, governance projects, and governance modalities, we open the door to a research agenda that spans not only the whole public/private spectrum, not only questions about governance of as well as by technology (such as governance of AI as well as by AI), but also questions about a variety of governance modalities. This is not to suggest that there is no difference between, say, governance by law, governance by ethics, and governance by markets, or governance by technology. To the contrary, one of the questions that we should be asking ourselves as lawyers is precisely how we differentiate between these various governance projects. Governance is our bridgehead into conversations with other disciplines and, because law is about governance (in a broad and functional sense) we do not need to apologise for entering into these conversations. Law, and lawyers, so conceived are part of a larger community whose focal interest is in governance.
Good governance, foundational conditions and fundamental rights
While ‘governance’ is a gateway to many lines of inquiry, I want to propose ‘good governance’ as an urgent focus for researchers who are already working in the area of law and technology. Needless to say, there are as many views about what constitutes good governance as there are disciplinary interests in the matter (Levi-Faur, 2012) — for example, some views emphasise process, others substance; some emphasise agility and flexibility, others certainty and consistency; some emphasise effectiveness, others legitimacy; some emphasise universal applicability, others cultural relativity, and so on (Rothstein, 2012: 146-150). However, what I want to propose is that we look beyond all governance projects to find the foundational conditions for governance itself. Once these conditions have been identified, then any governance that claims to be good will be predicated on respect for these foundational conditions. These foundational conditions are not where good governance ends but, rather, where it starts. If governance respects the foundational conditions, then we can examine its credentials (its claims to be good) relative to the values and circumstances of particular communities of humans.
In this vein, one priority is to clarify the nature of the foundational conditions and then the relationship between these conditions and the fundamental values that are recognised as constitutive of particular communities. With regard to the former, I will simply assume (but, of course, this is a matter for discussion) that the foundational conditions relate to the possibility of humans existing on Earth (this planet being special in being neither too hot nor too cold to support human life), to the possibility of peaceful co-existence amongst humans (within and between communities) and to the possibility of humans acting in a free, self-directing and purposeful way (in other words, conditions relating to the development and exercise of human agency and autonomy) (Brownsword, 2019, 2020, 2022, 2023). These conditions need to be elaborated in a way that remains strictly neutral or impartial between particular humans or communities and their modes of governance (compare Rothstein and Teorell, 2008); they are simply the conditions without which it is not possible for humans to form communities in the first place. Provided that neutrality is maintained in specifying the foundational conditions, respect for these conditions is binding on humans simply by dint of their appreciation of their human agency and their understanding of its requirements.
Having established the nature of the foundational conditions, we need to keep them clearly in sight. At the moment, we have difficulty in doing this because our sights tend to be limited by the fundamental values that we recognise in particular communities. By way of illustration, consider the challenges presented to courts where citizens initiate legal proceedings seeking to hold their governments to account in relation to their climate change responsibilities. In a world of good governance, it would be clearly understood that these questions relate to the foundational conditions rather than to the fundamental rights recognised within a particular community and it would be clear where questions of this kind should be directed. Without such clarity, courts are left to make their second-best responses.
In the most recent European example of this kind of litigation, Verein Klimaseniorinnen Schweiz and others v Switzerland,[1] an association of senior citizens argued, inter alia, that the Swiss government was in breach of its human rights’ responsibilities under the European Convention on Human Rights. In what is surely a landmark decision, the majority of the European Court of Human Rights held that the Swiss government was in breach of its responsibilities under Article 8 (the right to private and family life); by contrast, in the one minority opinion, the judge held that the Court was being asked to go beyond its competence and that it would be counter-productive to do so.
In what were non-ideal circumstances, the Court might or might not have been justified in deciding that the privacy right was engaged but good governance really required the explicit drawing of the distinction between foundational conditions (such as respect for the planetary boundaries) and fundamental human rights (such as the right to privacy). Accordingly, when the majority say that ‘Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life’ (para 519), it would be clearer if they were to say that Article 8 is ‘predicated’ on such a ‘foundational’ right; and, similarly, when the minority judge criticises the majority for having ‘created a new right (under Article 8 and, possibly, Article 2) to “effective protection by the State authorities from serious adverse effects on their life, health, well‑being and quality of life arising from the harmful effects and risks caused by climate change”’ (para 4), he should have added that both Articles 2 and 8 are predicated on a number of foundational rights which inter alia protect against these adverse effects. If the Court had had the distinction between foundational and fundamental rights clearly in view, it surely would have aligned Article 2 with foundational environment protection and Article 8 with foundational agency protection.
In the absence of stewardship of the foundational conditions, I suggest that it should be open for any human or any group to raise a question about these conditions before any governance body, including a court whose competence is limited by reference to the fundamental values of the community. In these non-ideal conditions, humans can have two kinds of human rights claims: first, they have a right to make claims concerning the human rights that are recognised as fundamental values by their particular community; and, secondly, they have a right to raise questions about the foundational conditions which are presupposed by their own human rights community or, indeed, by any community of humans. In other words, simply by virtue of being a human, there is a right to demand that governance is responsive to concerns that one has about the foundational conditions; and, within particular communities that treat human rights as their constitutive value, humans should be recognised as having rights to raise questions concerning both the fundamental values of their community and respect for the foundational conditions on which governance is predicated.
It follows from these remarks that there is a very important sense in which all courts are ‘human rights courts’. All courts have a residual jurisdiction to receive and deal with questions about governance in relation to the foundational conditions. In ideal conditions, this jurisdiction will be simply to receive and then to refer the questions to the appropriate court or forum; but, in non-ideal conditions, it is arguable that, all things considered, the court has a responsibility to decide such questions.
Blue skies
Another question that we should ask ourselves is about the prospects for law’s governance. In the foreground, we have a tension between human-centric rule-based governance by law and efficiency-seeking governance by technology, particularly governance by AI-enabled tools that automate dispute-resolution and take humans out of the loop. In the background, we have threats to civilised human existence because governance itself is compromised.
The foreground tension between governance by law and governance by technology might be resolved by one side overcoming the other. However, it is more likely to be a continuing negotiation between these two kinds of governance project with more or less successful hybrids being adopted. Optimists might see a productive synergy between law, ethics, and technology with law maintaining a workable order, technology being applied where order can be maintained more efficiently and effectively, and ethics being the ‘conscience of law’ constantly pushing for governance to be directed at doing the right thing. Those who are less optimistic might worry that governance will break down or that a dystopian technological solutionism will prevail (undermining distinctive features of human relationships, such as trust in others, and generally relegating moral reasoning to the margins of community life).
The background threat resides in a diminution in respect for law’s governance coupled with investment in technological development which puts new tools in the hands of those who are ‘outlaws’ or who are prone to act irresponsibly in compromising the foundational conditions. In this scenario the risk of abusive use of technologies is amplified and there is an existential threat to humanity of the kind that has troubled some leading developers of AI recently. It is one thing to try to contain the use of new technologies within those communities that are broadly supportive of governance projects but it is quite another matter to control those who see themselves as having no stake in the continuation of civilised human life (Mishra, 2018; Skidelsky, 2023; Suleyman, 2023).
In the life and times of law’s governance, this conversation assumes that we find ourselves at a special time. It is special not only because humans have a dazzling array of new tools but because those tools can be applied for both great good but also extreme harm (Dafoe, 2024: 34-39). In line with this reading, Toby Ord (2020) suggests that we are in a unique period of human history, an era when there is an existential risk to the future of humanity that is created not only by natural phenomena (asteroid strikes, volcanic eruptions, and so on) but also by our own human practices and technological innovation. This risk could materialize in the extinction of humans or in the unrecoverable collapse of civilization. According to Ord (at 7):
"Understanding the risks requires delving into physics, biology, earth science and computer science; situating this in the larger story of humanity requires history and anthropology; discerning just how much is at stake requires moral philosophy and economics; and finding solutions requires international relations and political science."
In other words, we need to call on all our resources if we are to engage effectively with this kind of risk. And, yet, in his list of resources, Ord makes no mention of law, regulation, or governance (although, towards the end of his book, he does speak to legal initiatives that might be taken at the international level). This cannot be right. To put this right, we need to talk about how law and lawyers can play their part.
If the perception is that law is not relevant to preventing the collapse of civilized human life, then this (both the perception and the practice) needs to be corrected as a matter of urgency. It needs to be understood by everyone—those who are about to study law, those who are already studying or practising law, and those who are not in law—that human communities need governance to engage with these risks; and that they might well need law and regulation to prevent the collapse of civilisation. Law and lawyers need to be central to maintaining civilized life in our increasingly technological world. We need to view the law in a radically different way and we need to be introduced to law in a radically different way. That way, as I have suggested, starts by viewing law and technology from the perspective of (good) governance (Brownsword, 2024).
Concluding remarks
In a famous law review article, Fred Rodell (1936) recalled that the political theorist Harold Laski liked to quip that in every revolution the lawyers are liquidated first. Why so? According to Rodell, the reason is that ‘while law is supposed to be a device to serve society, a civilized way of helping the wheels go round without too much friction, it is pretty hard to find a group less concerned with serving society and more concerned with serving themselves than the lawyers’ (at 42).
In this short piece, I have suggested that, if we in the Law and Tech community frame our interest in terms of the challenges of ‘governance’ and the aspiration for ‘good governance’, then we have a bridgehead for conversations with researchers in other disciplines as well as a prompt for blue skies thinking. Moreover, bearing in mind Rodell’s remarks, there are lessons here for all lawyers: good governance is the foundation for civilised human communities; it needs to be established and sustained through times of rapid technological transition; taking an interest in governance is not an option for lawyers; lawyers, in conversation with researchers in other disciplines, have a central role to play in helping their communities to get through some challenging times.
[1] Verein Klimaseniorinnen Schweiz and others v Switzerland (Application 53600/20, April 9, 2024, April 9) (available at https://hudoc.echr.coe.int/eng/#{%22itemid%22:[%22001-233206%22]}.
*Barrister, Professor of Law at Kings College London, Honorary Professor in Law, University of Sheffield
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