The Future of Law: Human Deficiencies

Humans are inherently blessed with a number of shortcomings. First, we are physically limited in our capabilities. Second, we have some mental shortcomings. The law deals with our physical limitations with understanding. Especially ‘time’ is a precious commodity. However, the law has less sympathy for our mental shortcomings. These we try to suppress as much as possible – especially when it comes to others.

Humans are inherently blessed with a number of shortcomings. First, we are physically limited in our capabilities: human capacity is restricted. We can’t always be active – we need sleep and rest. Even when we are active, we can only perform one task at a time, and there’s a limit to the amount of information we can process both over time and in total. A central limitation is that all our activities require time. Time to search, read, think, and time to make decisions and take actions.

Second, we also have some mental shortcomings: we forget things, make mistakes, and are continuously influenced by our emotions. We are biased and certainly not always honest – not only with others, but also with ourselves. Pure rational thinking and acting turn out to be something we’re not very good at. And perhaps our greatest mental shortcoming is that we often think we don’t have these deficiencies or believe we have them under control.

Human deficiencies are reflected in the law

In law, which almost always deals with human behavior, we see our shortcomings mirrored back at us. The law deals with our physical limitations with understanding. Especially ‘time’ is a precious commodity. We are given time to conduct research and gather information. Time to initiate and pursue legal procedures. Time to write pleadings and time to communicate with one another. The law consists largely of long chains of interconnected deadlines, all thanks to our physical limitations.

However, the law has less sympathy for our mental shortcomings. These we try to suppress as much as possible – especially when it comes to others.

This is clearly reflected in our expectations of the government. We expect rationality, predictability, transparency, efficiency, fairness, legal certainty, and honesty from the government. It’s a fascinating paradox: although we ourselves do not naturally always exhibit these qualities, we expect them from others.

Let me give an example. It’s a well-known fact: power corrupts. And for a long time, we’ve had a solution for that in government: we divide government power among different people who must keep each other in check. We often think this is a modern invention from the 18th century – Montesquieu's 'Trias Politica.' But as early as the fourth century BC, Aristotle observed that most Greek city-states had some form of separation of powers (in his book Politika). The ‘separation of powers’ has thus been a robust legal concept for over 2,500 years. The downside is that we’ve evidently needed this concept for millennia. If humans weren’t naturally inclined to abuse power, we wouldn’t need this concept.

If humans weren’t naturally inclined to abuse power, we wouldn’t need the concept of the 'separation of powers'.

You see the same duality, for example, in the prohibition of discrimination in Article 1 of the Dutch Constitution. It’s nice that this is enshrined as the first article of our Constitution, but it’s actually rather sad. A simple comparison to illustrate: it’s a fact that in a supermarket, customers generally don’t hit each other. We take that for granted. The moment the first supermarket hangs a banner over the entrance saying ‘We don’t hit each other here,’ it sounds like a nice promise, but you already know there’s a problem. Seen this way, the fact that the prohibition of discrimination is enshrined in Article 1 of our Constitution isn’t a sign of civilization, but rather quite embarrassing.

Anyone who wants to map out human limitations would do well to study the law.

How we compensate for (and surpass) our limitations

Of course, you could accept all these shortcomings – it’s just the way we are. But there’s something else in our human nature. We tend to compensate for our shortcomings and eventually surpass them. As early as the Lower Paleolithic period (2.5 million to 300,000 years ago), we were clever enough to use stone tools – aids to support our physical actions and make life easier. A real revolution came in prehistory (around 380,000 to 400,000 years ago) when humans invented the spear. Suddenly, we could do something with a tool that we were physically incapable of doing on our own: killing prey from a distance.

And so it goes throughout history. Think of the bewilderment of the strongest farmer, puffing after a morning of hand-plowing, seeing his lazy neighbor zooming by with a buffalo-drawn plow (domestication of animals from 15,000 BC). The confusion of the best archers facing enemies armed with firearms on the battlefield for the first time (China, around the year 1000). The same happened with the Industrial Revolution when the first water-powered loom (waterframe) was invented in 1769. It not only ended hand-weaving but also had a capacity that far surpassed human efforts.

Looking back at history, we see that with the invention of arithmetic, then mechanical calculators, and eventually electronic computers in the 20th century, we laid the foundation for today’s digitalization long ago. And the ‘shock’ of digitalization now seems nothing more than a historical inevitability.

The ‘shock’ of digitalization now seems nothing more than a historical inevitability.

While humans themselves haven’t changed over the millennia, we’ve consistently been able to compensate for and surpass our physical limitations through tools.

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Thanks to digitalization, lawyers can focus on human nature

So, what does digitalization bring us? The benefits are unprecedented: our work capacity will continue to grow. We’ll be able to work faster and with less effort. This applies to legal work as well: communication, research, decision-making – all of it will be done faster. And the increasing capacity will ensure that the group of people without access to justice – currently 5 billion worldwide – will shrink.

And what does this mean for our legislation? My prediction is that the factor ‘time’ will slowly but surely be squeezed out of our legislation – like letting the air out of a beach ball. The factor of ‘time,’ so closely tied to our physical limitations, in my view, is a good measure of the progress of digitalization.

My prediction is that the factor ‘time’ will slowly but surely be squeezed out of our legislation – like letting the air out of a beach ball.

At the same time, history teaches us that our mental nature and shortcomings have remained unchanged over millennia. Whether you study Greek tragedies, Shakespeare’s plays, or the lyrics of Dolly Parton – it’s always the same story: we are still irrational beings, driven by emotions, who don’t always make the best decisions and certainly aren’t always reasonable. And this is precisely what makes us human and causes us to disagree and come into conflict with one another. Not only as people but also as lawyers, I find that a reassuring thought. Because this gives law its most essential reason for existence. As long as human nature doesn’t change, law will exist, and there will always be a need for lawyers – in whatever form.

The time and capacity freed up by digitalization offer us as lawyers the opportunity to focus more on the foundation of our law: human nature. Not to change it, but to better understand it and respond to it. I expect that the classics of ethics, rhetoric, philosophy, and, in my view, logic will become increasingly important for lawyers. And then something intriguing happens: as the world changes at an ever-faster pace, we will turn more and more to the stable foundation laid in antiquity, by thinkers such as Aristotle.

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This column is an adaptation of the my lecture during the Legal Valley Knowledge Café on October 28, 2019.