Beyond evidence: Anticipatory regimes in law

• Published date: 01 January 2021
• Author: Elen Stokes
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/lapo.12159

ORIGINAL ARTICLE

Beyond evidence: Anticipatory regimes in law

Elen Stokes

Cardiff Law School, Cardiff University,

Cardiff, UK

Correspondence

Elen Stokes, Cardiff Law School, Cardiff

University, Museum Avenue, Cardiff CF10

3AX, UK.

Email: stokese1@cardiff.ac.uk

Abstract

This article lays the groundwork for a new approach to

understanding how law engages with the future, based

on the social science theory and practice of anticipa-

tion. Anticipation, as depicted by an extensive interdis-

ciplinary literature, encourages a shift in attention from

the future as a matter solely of probability and effect,

to the future as a wider array of possibilities operating

on the present. Notably absent from this literature is

law. This article offers a framework for analyzing how

law mobilizes future possibilities to serve present regu-

latory purposes, focusing in particular on the role of

legal horizons, forms and affect.

1|INTRODUCTION

If a defining characteristic of contemporary liberal democratic society is its “state of anticipa-

tion”(Adams, Murphy, & Clarke, 2009, p. 246; see also Alvial-Palavicino, 2015;

Anderson, 2010)—a constant compulsion to look to, live toward, and act upon the future—then

it is surprising that the sizeable literature on the matter has yet to find a central place in the

study of law. Although much has been written about the relationship between law and scienc e,

particularly the role of scientific methods of prediction in legal decision making, the focus has

remained on the narrow range of knowledge practices involved in translating future risks and

uncertainties into objects of governance. The question of how law knows has received consider-

able attention from scholars working in cross-disciplinary fields such as criminology, risk regu-

lation, and science and technology studies (see generally Sarat, Douglas, & Umphrey, 2007),

generating important insights into how techniques of risk assessment, cost–benefit analysis, and

systems modeling have become conventionalized legal tools (e.g., Fisher, Pascual, and

Wagner, 2010; Hutter, 2010; Jasanoff, 2005; Lee et al., 2018). No doubt, legal systems and their

epistemological foundations have provided incredibly fertile ground for examining how

society’s most powerful institutions represent and organize the future. There is scope to take this

further, however, by adopting a broader view of how “the future”enters into and operates

through law by means other than scientific evidence and policy-relevant expertise.

This new, more expansive research agenda offers the opportunity to reexamine legal rules

and doctrine so ordinary and ubiquitous that they go unappreciated as practices of future-mak-

ing. It is not that law’s most routine encounters with the future—such as its deadlines

DOI: 10.1111/lapo.12159

©2020 University of Denver/Colorado Seminary and Wiley Periodicals LLC.

Law & Policy. 2021;43:73–91. wileyonlinelibrary.com/journal/lapo 73

(e.g., targets to be achieved by 2020, 2030, 2050, etc.), durations (e.g., twenty-five-year licensing

arrangements) and processes of change (e.g., transitional provisions)—avoid attention alto-

gether. It is rather that they are accepted at face value, without systematic investigation into the

considerable power wielded behind seemingly nondescript, run-of-the-mill legal formalisms and

technicalities. So numerous and familiar are these provisions that their designations of the

future appear inevitable, or at the very least unremarkable, even though there is ample room

for ambiguity or doubt. The point is that futures are made, legitimated, and normalized in

places other than headline legislation, away from the glare of public scrutiny. While the search

is on for better means of tackling future threats to the world’s economy, energy systems, and cli-

mate, some of the most pressing questions of our time are being answered quietly, even inciden-

tally, through regulation backstage.

In other fields, the everyday acts of relating to and constructing the future have not been as

underestimated as they have been in law. Several disciplines across the arts, humanities, and

social sciences have widened the scope of “futures studies”through sustained, reflective, and

critical theorizing about the future, not in terms of technically assessable facts so much as in

terms of the future’s subtler structural, material, and even visceral qualities (e.g. Adam &

Groves 2007; Borup et al. 2006; Appadurai 2013; Currie, 2013; Urry, 2016; Weszkalnys, 2014).

Legal analysis has a great deal to contribute in this regard, not simply because law brings dis-

tinct empirical and conceptual material to the table, but also because legal texts and actions are

deeply implicated in producing the futures they then seek to govern, in ways that are not always

recognized as such. Law, in other words, is an important but neglected site of anticipation.

“Anticipation,”both as an idea and as a framework for understanding contemporary modes

of future-making, has untapped potential to widen the field of legal inquiry beyond the episte-

mological domain, to reveal a greater diversity of perspectives on law’s engagement with the

“not yet.”Instead of seeing the future primarily as a problem of unknown but in principle know-

able quantities, it redirects attention to what Adams, Murphy, and Clarke (2009, p. 247) call

“speculative forecast,”which is less concerned with statistically measurable outcomes than with

threats and promises that are felt to be real even if they do not come to pass. That is not to say

that conventional mechanisms of future-knowing, such as risk assessment, are no longer rele-

vant to law. The value of organizing the discussion around anticipation, however, is that it

encourages an approach that treats evidence gathering as but one element of a broader set of

legal arrangements with respect to the future. This, in turn, prompts consideration of how the

future is disclosed, enabled, and maintained not through any single technique but through a

combination of different anticipatory styles, material forms, and sensory affects

(Anderson, 2010; Groves, 2017). So far, law has not featured prominently in debates about how

futures are constructed and “held together”(Brown et al., 2012), even though legal rules and

techniques are key components in this process.

The aim, then, is to see that law assumes its rightful position alongside cognate disciplines at

the center of futures research. While this may be too ambitious a task to fulfill in the limited

space available here, I take an initial step in that direction by exploring what a “futures perspec-

tive”can bring to the study of law. I begin by explaining how futures research takes us beyond

issues of evidence to consider other means by which the future is made sense of and deployed in

regulatory settings. This provides a powerful new angle on legal futurity, one that rejects any

conception of the future as a neutral temporal space into which law is projected. Next, using

established concepts and categories of futurity and anticipation, I offer a framework for devel-

oping this approach in legal scholarship, based on three sets of questions about law’s capacity

to draw the future into its present functioning. The first deals with the future horizons set by

law. The second is concerned with the specific legal forms that reach into, engage with, and use

the future to serve current regulatory purposes. The third addresses how law also operates on

an affective plane, contributing to various states of hope, possibility, precariousness, and so on,

which give the future an immediate and palpable intensity. These are by no means the only

74 ANTICIPATORY REGIMES IN LAW