Linking the Present and the Future in Judicial Bureaucracies: Learning from the
Hawaii Judiciary Case
“Linking the Future
with the Present in Judicial Bureaucracies: Learning From the Hawaii Judiciary
Case”, in Mika Mannermaa, ed., Proceedings of the X1 World Futures Studies
Federation Conference (Turku, Finland, World Futures Studies Federation and
Hungarian Academy of Sciences, 1992).
By Sohail
Inayatullah
ABSTRACT
This
article explores ways in which the future can be linked to the present in
judicial bureaucracies. Successful and failed links as well as methods to
remedy failed links are developed. Links between the vision of the future and
the reality of the present are possible through (1) leadership, (2) a
poststructural epistemological perspective, (3) wide conceptual ownership of
the forecasting process, (4) a focus on the larger purpose of the institution
and (5) middle-management participation. Links between the future and the
present fail because of the (1) predictive nature of futures research, (2)
lack of attention to strategic power on the part of futurists, (3) lack of
development of true alternatives, (4) inaccessibility of futures research to
institutional culture and (5) in the case of courts, the structural
contradictions between the forward view of futures and the emphasis on
precedence in legal culture.
Introduction
Using the
experience of futures research in the Hawaii courts1 as a departure
point, this article develops the various ways in which the present and the
future can be linked. Successful and failed attempts to link the present and
the future in the planning/policy cycle are explored.
After a series of
citizen and judicial conferences in the 1970's as well as the success of the
broader based Hawaii 2000 project, the Hawaii courts initiated a problem
oriented planning process. However, the results of this orientation merely
shrank the time horizon such that instead of discussions of visions and purposes
planning conferences argued day to day issues such as parking. Allocation of
immediate resources, questions of efficiency, personal politics and pressures
from external agencies (legislature, media, government groups) remained the
focus. Problem solving simply reinscribed the present on to the body of the
future making the immediate all pervasive and hence unsolvable.
Leadership
dissatisfaction with this approach led to a comprehensive planning project in
1979. This project searched for a priori existental missions and dimensions for
the Judiciary. From the comprehensive planning project a futures research
project emerged. Housed in the Office of Planning, researchers meeting with
attorneys and administrators presented long range, high impact, but low
probability issues such as the rights of robots, sentencing in the context of
natural brain drugs, the secession of Hawaii, and the governance implications of
a runaway Constitutional Convention.
An
institutional power shift within the courts forced research to move from the
long range to the trend level. Trends examined the future of attorneys,
the future of the family, the future of specific regions in Hawaii and on the
implications of rapid caseload expansion on the courts. Would they have
enough resources? would the courts collapse if public approval or caseload
continued to increase? These types of questions then realigned futures
research. While the philosophical issues were now seen as secondary, the
gains made from the view of the court bureaucracy in terms of justifying budgets
were critical in further legitimized futures research.
Eventually the
Judiciary developed a review titled Justice Horizons which
summarized future oriented issues. These ranged from issues that made
problematic the notion of "crime," "judging," to issues that presented emerging
information and computer technologies. Issues from different cultural
perspectives were also presented. Recent issues have focused on the social
construction of law and crime, legal implications of genetic engineering
advances, the future of mediation as well as on virtual reality and its impact
on incarceration and judging.
In
1989, the Chief Justice of the Hawaii Judiciary proposed that Hawaii convene a
Foresight Congress to generate new visions and ideas about the role and
structure of the courts. Congress participants were to include members of
the Bench, Bar and Public. The desire for the Congress was motivated by a
need to include public input into the planning and policy creation process in
the courts and to encourage interaction among Bar, Bench, and Bar about the
future of the Courts.
The
legitimacy of holding a Foresight Congress was greatly aided by the May 1990 San
Antonio Congress on the Future and the Courts sponsored by the American
Judicature Society and the national funding agency, the State Justice Institute.
The Hawaii Congress was held in January 1991. Congress organizers featured
both plenary sessions and small group interactive sessions. Plenary
sessions focused on the following areas: the national courts, the Hawaii courts,
culture and demographics, science and technology and world economy and politics.
Small group sessions had participants discuss various predictions of the future,
develop scenarios of preferred and possible court futures and articulate
specific recommendations as to desired changes in laws, policies and structures.
TENSIONS
In
the eleven years of institutionalized futures research there have been numerous
conflicts between researchers, bureaucrats and top administrators. Among
these include the classic issues of researchers presenting too much information
and management desiring one future, a plan, not a range of alternative futures.
While researchers privileged the educational view of forecasting (to learn about
the future so as to understand today), management privileged the political,
strategic discourse (the "bottom-line" for bureaucracies). The time
horizon for researchers and administrators has also been different. While
the futures perspective has been to unleash time, the management focus has been
to domesticate time, to make it predictable and routine.
Finding a balance between
these divergent views as to what constitutes appropriate planning and
forecasting has been a challenging task. Some of these issues have been
naturally resolved; others remain structurally endemic to any institutional
forecasting project whether in the courts or in business.
The national
conference held in San Antonio, Texas on the "Future and the Courts" saw many of
tensions that the Hawaii courts experienced resurface. However, pre-conference
meeting assurances that good futures research meant being able to be dysjunctive
from the past and present (to say the outrageous and the impossible) created an
atmosphere where creative visions were possible. Participants developed a range
of visions and scenarios for the courts (for instance, the present continued,
the global courts, the green courts, transformational high-technology courts)
and strategies to achieve these visions. The Hawaii courts in the planning of
their own foresight conference used these lessons and created a similar creative
atmosphere. By developing a planning committee that had representation of
judges, attorneys, futurists and planners, the conference managed to speak to
the near and long term future, to the creative and the routine, and to the
practical and the ideal.
LINKS
Given the
structural problems in planning and forecasting in court bureaucracies, what
then are the possible ways with which to link the (needs of the) present with
the (vision of the) future and thus potentially resolve the policy conflicts
embedded in forecasting in court bureaucracies. While we use the Hawaii
courts as a starting point the following discussion is generalized for
institutions and other policy environments.
The first
necessary link is leadership2. The future as vision or as
mission ican be linked with the day to day operations through administrative and
judicial leadership. But this link is difficult as leadership comes and goes;
some are open to futures studies, others are not. Their reasons for openness
could be to enhance personal power or indeed to transform the institution. Both
reasons might be present depending on the particular lifecycle of the
institution.
The
proximity of the futurist to the leader also influences the type of futures
studies that develops and the success and failure of transforming the
institution. For example, is the futurist a researcher in the Planning or
Research department, is he a chief planner or is she the advisor to the Leader
(that is, the organizational wizard)? While proximity is often helpful to
the futures effort it can paradoxically hurt. If leadership changes then the
follower or advisor associated to the leader may also have to leave.
Alternatively, being a researcher may not lead to grand, high status projects
but while leadership goes through its various cycles, the researcher can
continue to write, forecast, and continue to transform the local and
institutional environment where possible.
This
certainly has been the case in the Hawaii courts where leadership has gone
through various cycles of enthusiasm and a lack of concern with respect to the
future. Yet institutionalization is important but without vision embodied
in leadership, institutionalization even as it protects the program does so at
the expense of the quality of the research.
The second link is
epistemological, specifically, the need for a critical epistemology3.
The future within a critical view becomes relevant not because of the specific
predictive forecast since these forecasts usually have decisionmakers still
puzzled as to how events and trends ten years from now will change their own
worlds. However, futurists continue with popular exhortations such as: change
is rapid, we will live our life in the future or the classic, and future
awareness will improve decisionmaking. In contrast, in the critical futures
view, the future becomes relevant because we can use it as an asset to remark
about the present. The future then is used to make the present unnatural, to
make it contentious, to open it up. The past too can be used in a similar way.
Here by
gaining distance from the present--through scenarios, through visions, through
the construction of alternative realities--the present is made problematic. What
is, does not always have to be. This is different then using forecasts to
state what will occur. Much of futures research often ends up--as our
discussions in the courts often have--in arguments over whose forecast is
correct, more reliable, more likely and so forth. But by using the future
as a way to comment about the present allows the present to become less frozen
in time, the present to become unnatural, one present among many, then real
change can be possible. Thus, the way one constructs the future greatly
impacts the success of research. The goal here then is to argue that the
future is similar to the present and the past in that it is one possibility
among many. The real becomes interpretative and a particular reality becomes
authoritative not because of a priori ontological factors but because of various
struggles of meaning among constitutive groups.
The third link is
ownership or self-identification. Instead of situating the future
in experts, it is better to have the judge (or bureaucrat or technocrat) own the
future him or herself. Even if the judge's work or the administrators vision is
not as radical as the futurist might want it, ownership allows that person to
move into an alternative temporal dimension. While the futurist might want to
present the information to a panel or committee thus leading to one's own
self-image as an expert, this posturing merely in the long run makes it more
difficult to futurize the institution in question. The more useful view then
is that there is a futurist in every person. The person who locates herself
professionally as a futurist should then aim at facilitating the other's view of
temporality, of change, and of design.
The fourth link is
focusing how change will impact the role or purpose of an
institution4. Predictions or scenarios about the future are more
interesting if they can be linked to how the institution or the people within it
will have to change. This is applicable again to history. For example, by
using a sixty year time horizon--the last thirty years and the next thirty
years--we can see how the mission, the purpose (of the courts, for example)
itself has been or could be transformed. Once the changing role has been
understood then goals and operational tasks can follow. By locating conferences
or commissions in the prediction discourse, the question of significance remains
unanswered? However, by asserting that a forecast is important because it will
change one's purpose, one's personal mission, or the mission of the institution
in question, then it has more currency. Merely providing a forecast in a
government setting where profit is not what gives overall institutional meaning
leads nowhere. The linking question then becomes: how will the institution
change its basic purpose because of technological, demographic, political,
cultural or economic changes?
The fifth link is
structure and participation. If leadership owns vision and the
long range future, then middle management must participate in creating the
middle range future with other operational oriented employees. Middle
management then becomes the key to creating an alternative future. They make
the vision real; they alter their goals in line with the vision and in turn
change or transform the vision by their actions. Middle management, too, must
believe that the vision will benefit them, will clarify their lives, give them a
role and thus make the politics of everyday life easier. However, most often
participation is avoided since it makes the decisionmaking process too messy; it
brings in too many variables, and it allows the possibility of controversy. In
this sense a vision must both emerge from the group and it must lead the group
out of what it thinks possible and out of how it defines itself in the
present. Middle management while often the most enthusiastic about futures
research has the least amount of available quantitative (linear) time to pursue
the future. Rather their day is spent in making the bureaucracy work
efficiently.
From
another view, this is also true for lawyers. Their interest in futures is
if it can increase profits. It is judges who no longer operate in the
profit discourse that can use futures studies. Lawyers will use futures
research as long as it increases their wealth or prestige; otherwise futures
remains overly speculative, divorced from real life facts. However,
judges, too, have interests that inhibit their use of futures studies.
Besides working in bureaucracies many judges live in places where they have
reelection concerns. In addition, for administrative judges the pressures
of caseload make using futures research either to redesign the structure of the
courts (social engineering) and law (recommending changes to the legislature) or
to merely increase bureaucratic efficiency difficult.
The final and
sixth link is theoretical or historical. The question in the
legal context is: will the changes ahead (due to technology or demographics or
other factors) alter the patterns of the past or will the weight of the past
continue. Will the pendulum affect of history (of the structure of society,
courts and laws)--shifts of professional/lay; written/oral;
centralization/decentralization; homogenization/diversity; formal/informal;
adversarial/negoitation; absolute/substantive/procedural;
individual/state--continue in the future? and how? Without this link then
conferences while strong on data (trends and problems) and values (visions,
preferred futures) will miss the structural and historical. The historical view
is critical in that it reminds us that, for example, the move toward informal
justice (mediation) is understandable given the previous decades of formal
adversarial justice. The pendulum view also predicts that a form of the
adversarial system will return once mediation has gone to an extreme.
Can we then
conclude that new technologies, however revolutionary, will not change basic
historical patterns? If so then perhaps institutional redesign is not needed.
Basic social problems (such as the individual versus the collective) will remain
the same, indeed, they have not changed noticeably in the last two thousand
years if one takes the macroview of history as sociologists such as Sorokin5
do. Should we then relax and let these periods of dramatic change pass by and
wait for a time when social change slows down?
SUMMARY
Summarizing this
section we suggest that without leadership, futures research will not impact the
institution. Without an appropriate epistemological perspective, forecasting
will remain bounded by a future that has no relationship to the present.
Moreover, without a critical epistemology, the future will merely reinscribe the
present instead of calling into question our definitions of rationality and the
real. Without ownership or self-identification in the policy/futures process,
the future will remain situated in a particular office (the planning or research
office) or in a particular person, the official futurist. But by linking
ownership of the future to institutional leadership, then the present can be
changed. Central to changing the present is including upper and middle
management in any planning for the future. In addition, the key focus with
which the forecasts come to have meaning relate to the changing purpose or
mission of an individual or organization. Without this anchor, then forecasts
and designs remain interesting but they do not provide a context within which
change can be understood. Rather forecasts merely restate the obvious: there
will be more or less technology, more or less centralization. Here the final
link of theory and history is critical. Have the changes under study occurred
before? Will changes in technology lead to substantive changes in the law or
will they shift the pendulum away or toward the classic cycle of individual
versus states' rights, for example?
FAILED LINKS
In the Hawaii
courts (and other institutions) there have been numerous failed links. While
the sites of responsiblity for failed links are numerous, however, as the
self-professed agents of change, of fear and hope, it is the futurist/planner
that bears the brunt of this commentary.
First,
futurists only tend to give forecasts, predictions in the hope of
increasing general awareness. We are weak at implementation and at legislative
money politics--the strategic discourse. More problematically, there is no way
to measure increased "future awareness." Second, the location of futures
often remains in a specialized research team within a technocratic site. The
futurist is seen as a planner as a technocrat. The image of the futurist as
court wizard, as the giver of meaning is rarely used. The wizard speaks magic
and thus continuously creates new worlds, while the planner (arguing that other
views are fuzzy, less real, impractical) solves problems6. One
speaks from mythology while the other speaks from a view representing the voice
of science and rationality, the voice of the modern world. Third, the
futurist does not speak to power and tradition. Giving information about the
future does not change decisionmaking necessarily--decisions are made for other
reasons--personal power, party power, tradition, fear, prestige, ego, to mention
a few. This assertion counters most of the reasons that futurists give as to
why institutions need forecasting such as the rate of change has increased or
that we have entered an information world (the post industrial world where
politics and ideology will no longer exists). If more information does not
necessarily lead to better decisions then the efficacy of futures research
becomes increasingly problematic. Futures (and planning) then is used most
often for symbolic power, to assuage critics that modernity and rational policy
making has been reached. However in most institutions (certainly the courts)
there are times when futures has been used for symbolic purposes and times when
an alteration in temporality was used for the purposes of social change, for
meeting the changing needs of various constitutiences.
The fourth
failure is that futurists only do a particular type of futures; only spiritual
or only technocratically orientated, that is, we do not develop true
alternatives. While we claim to articulate alternative futures, the agenda
of the researcher in terms of her or his particular politics remains. While
leaders and bureaucrats are critiqued for their hidden agendas, futures
researchers are not immune from this view. We too inhabit a politics of
knowledge privileging some scenarios over others. Successfully creating true
alternative futures is rare although the recent US conference on the courts did
develop a range of alternative futures. However, most likely as the time
distance from the conference grows and the shock experience from having
futurists deconstruct the edifices of the present decreases then the vision that
continues the present will remain the dominant one even as futures researchers
attempt to persuade others of a dysjunctive vision.
In the Hawaii
case, our fifth failed link has been that our research has not been
intellectually accessible to the institutional culture, not phrased in
the language of the legal discourse, for example. It has remained housed in
social science language. We have not successfully transformed the visions and
scenarios used in futures research into the language of court rules, laws and
written policies. Futures research then must be contextualized in the language
of the particular institution or discourse it is housed in.
The last
and most critical failed link deals with a basic contradiction in futures
oriented legal research in a judicial environment. Futures research is forward
oriented while legal research, legal decisionmaking, and legal education is
precedent orientated. Futures research suggests that decisions should be
based on what is desired while judges base many of their decisions on past
cases. At the macro level and institutional level, moreover, futurists propose
transformative change while those in institutions usually preferr incremental
change. Judges and attorneys, while occasionally acceding to the point that
social change is dysjunctive continue to assert that it is tradition that
civilizes humans. Constitutional law, that is, law that is primarily sacred and
natural, provides the social cohesion necessary for a good society. Constantly
criticizing and deconstructing the epistemological pillars of society leads to
the possibility of social chaos. Incremental common law allows for a decent
level of change, letting the good become better and avoiding large scale
disasters of fundamental change, for example, revolutionary change as in
communist countries or military coups in which law is by-passed, wherein
tradition is destroyed. Futures research (especially critical futures
research) in this view is at best useless and at worst dangerous to the creation
of a civilized society that continues the good of tradition and incremental
change. Futures research is perceived as camouflaged social engineering. For
the futurist, educating judges and others from the legal profession then becomes
a challenge that from the outset is problematic--legal education, the
bureaucratic context, organizational expectations, philosophical visions of the
good and the real are vastly different.
REMEDYING FAILED LINKS
The
recent Hawaii Foresight Congress and the various State Justice Institute
sponsored state foresight commissions are attempting to remedy these failed
links. In the Hawaii case, the Foresight Congress made futures more
accessible, less specialized and less technocratic, more involved in the
legislative and political process, and participants created a range of true
alternatives to the present. This above could occur since the Congress was
mandated by the Chief Justice and legitimized by national foresight efforts.
A planning team that included key administrators ensured that the Congress would
not remain a mere research effort but one that would have long term policy
implications. By including administrators and futurists the Congress
developed a structure that had both visions of the future and practical
suggestions for immediate action. In addition, by involving judges and attorneys
in the planning process and as key speakers at the Congress, futures research
(its language, its vision) became more accessible to the legal culture.
Indeed, participants saw the futures approach as a way to potentially transform
not only the judiciary bureaucracy but the legal culture as well. For
example, recommendations focused on promoting mediation, culturally appropriate
dispute resolution forums, and judicial outreach. This was made more possible by
articulating the future not as a predictive empirical science but as a way to
epistemologically distance us from the present (through scenarios) so as to make
the present problematic and thus changeable. At the same time the problem
of symbolic transformation remains. While numerous recommendations were
made, these have been passed on to a Foresight Commission which now may take
them seriously or may merely conclude its work with a glossy proceedings of the
Congress. However, by including key members of the Community--the media
especially--the Commission will be pressed to seriously attempt to establish
some the changes in court structure and legal culture that participants
proposed. The Hawaii Congress (and certainly the San Antonio Conference) by
virtue of being mandated by top leadership, by including different sectors of
policy community (Bench, Bar and Public), by speaking to both the vision and the
day to day budget needs did to a great degree remedy many of the failed links
mentioned above. However, the problem of the structure of government and
especially the historical structure of law and the courts remains. This
tension is embedded in the very foundation of the legal and judicial system.
Moving back to the macrolevel, the Judiciary then is that institution that continues the lessons of
the past, that does not try and create the evernew, however, much you and I, as
futurists, would like to. This is especially so during times of considerable
chaos when the real ceases to be dominated by any group and when it sets
above and below waiting for a new authoritative definition. For while the real
waits to be captivated the worlds of power and violence often continues. Here
perhaps the wise judge, grounded in ethics and unaffected by the dazzle of the
future, can continue the process of civilizing humans towards decency.
However, in
comparison to the legislative and executive branches where interest group
politics and pressures of raising funds to get elected reduce the future to the
next "democratic" contest, the Judiciary can afford to think of the long term.
In this view the courts are the natural sites of futures research. Judges have
long term tenure and thus can afford to be speculative (except those in locales
where they are elected). They can be the true change agents7 of
society keeping what is historically good and simultaneously moving policy
forward to respond to changing constructions of the real and the natural. Of
course, this raises the question of the role of the Judiciary in the American
design of governance especially with respect to the separation of powers.
Nonetheless, this
dual view--that of keepers of the past/present and creators of the new (for the
bureaucratic and judicial dimensions of the courts)--lies embedded in the
missions of the Judiciary. As Chief Justice Harlan Fiske Stone wrote about
Justice Benjamin Cardozo: "Cordozo believed..that the law must draw its vitality
from life rather thant the precedents and that 'the judge must be historian and
prophet all in one.' He saw in the judicial function the opportunity to pratice
that creative art by which law is molded to fulfill the needs of a changing
social order. " 8 Any attempt to create a futures consciousness in
the courts has to negotiate the tensions between these temporal dimensions.
Among the possible negotiation strategies include linking the future with the
present: this can be done through leadership, a critical epistemology,
participatory ownership of the future, and a grounding in macrohistory and
theory. While these linking strategies may not entirely bridge temporal gaps,
they do create the possibility of sites of knowledge and action that are neither
frozen in the present nor untethered in the future.
Notes
Dr. Sohail
Inayatullah is a political scientist/futurist with the Hawaii Judiciary. Office
of the Administrative Director, Planning and Statistics. Box 2560. Honolulu,
Hawaii 96804. This paper is based on presentations at the State Justice
Institute/American Judicature Society Conference on "The Future and The Courts,"
May 18-22 at San Antonio, Texas, at the Eleventh World Conference of the World
Futures Studies Federation at Budapest Hungary, May 27-31, 1990 and at the 1991
Hawaii Judicial Foresight Congress, January 6-8, 1991.
1. Sohail Inayatullah
and James Monma, "A Decade of Forecasting: Some Perspectives on Futures Research
in the Hawaii Judiciary," Futures Research Quarterly
(Spring 1989).
2. Phil McNally
asserts that leadership is the key arguing that instead of institutionalization
the futurist as wizard is a far more enabling role. See his "The Planner,
Planning and Leadership," Futures Research Quarterly (Winter
1988).
3. Sohail Inayatullah,
"Deconstructing and Reconstructing the Future: predictive, cultural and critical
methodologies," Futures (March 1990).
4. Gregory Sugimoto
has stressed this point. See his, Comprehensive Planning in the
Hawaii Judiciary
(Honolulu, Hawaii Judiciary, 1981).
5. See Pitirim Sorokin,
Social and Cultural Dynamics (Boston, Porter Sargent, 1970). Sorokin
develops a pendualum theory of three social mentalities: sensate, dualistic, and
ideational. Crime and law change as these mentalities change becoming more
material (property oriented) or more ideational (morality) given the particular
era.
6. "But do planners
solve problems," asks Phil McNally. "Don't they merely hide visions, problems
and solutions within the structural closets of Plans. Closets that among other
attributes have a great amount of political dust." Comments from McNally on an
earlier draft of this paper.
7. James Dator has
argued this. See his remarks at the San Antonio, Texas Conference on Law and
the Courts, May 19, 1990 and at the Hawaii Judicial Foresight Congress, January
6, 1991. 2424 Maile Way, University of Hawaii, Honolulu, Hawaii 96822.
8. Bernard Schwartz,
The Law in
America (New
York, American Heritage, 1974), p. 201.