“It is common sense to take a method and try it; if it fails, admit it frankly and try another. But above all, try something”*…
Joe Mathews recounts experiments with the rule of law around the world that are creating the kind of resiliency we need in our era of uncertainty…
Shortly after wandering into the Munich Urban Colab this summer, I found myself trying to follow an intense conversation in German about the city’s new experiment with autonomous buses. A local official, clocking my curious puzzlement, offered an aside in English: “We are asking ourselves: ‘What does it mean when the law is an experiment too?’”
No question may be more essential to governance in our era of dangerous uncertainty.
Global warming is accelerating faster than global treaties on mitigation can be negotiated. Climate catastrophes occur with a sudden ferocity beyond what current adaptation laws anticipate. Biological threats surface and kill before public health responses can be formulated. And AI is evolving faster and more wildly than regulators or lawmakers, or even its designers, expect.
All this dizzying unpredictability is undermining traditional legal structures. The threat is not just to the rule of law, but to the very nature of law, at least as humans have conceived it.
Our societies have long considered the law a slow and steady force, “the essential foundation of stability and order” in the words of J. William Fulbright. To that end, law is backward-looking — “the government of the living by the dead,” according to Oliver Wendell Holmes. The lawmaking process in republics and democracies is age-old: observe a problem, study its particularities, debate solutions and then carve out a rule that will endure for years or decades.
But what happens when the future arrives faster than your regional regulator or local parliament can make a rule?
The emerging answer is experimental law or, in Germany, where Munich is a hotbed, Experimentierklauseln. “Experimental clauses” refer to sections and parts of laws that are made flexible, often for set time periods, to allow for real-time adaptation or alteration in response to changing threats, climate or technology.
The shift toward such experimentation has begun, albeit slowly, in only certain areas of the law. Contract law and administrative law, especially where they touch on technology or other advanced sectors of the economy, are becoming more fluid…
Read on for a collection of examples and a consideration of the issues at play…
“Turbulent Times Call For Experimental Law,” from @californiajoe.bsky.social in @noemamag.com.
As George Santayana said: “You find gold, so to speak, effortlessly, in rational… trial-and-error-based research. It is exactly like options, trial and error, not getting stuck, bifurcating when necessary but keeping a sense of broad freedom and opportunism. Trial and error is freedom.”
The key, of course, is to understand that the learning– the experimentation– never ends…
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As we learn our way into the future, we might honor the impulse to move on from unsuccessful experiments (and outdated successes) by observing, as one does on this date each year, National Clean Out Your Refrigerator Day (AKA “National Clean Out Your Fridge Day”).
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