By Sohail Inayatullah
“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).
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.