MUNICH — 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.
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. 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.
Contracts, once used to protect against all contingencies, are now written more openly — explicitly anticipating new knowledge and adjustments. Among startups and innovation-oriented companies, written agreements are less likely to specify payments for specific work at specific times and more likely to establish processes for collaboration and shared decision-making. For example, start-ups use Agile contracts with vendors that, instead of pledging a final digital product at a price, set parameters of a creative process involving a test phase, iterative feedback loops and product benchmarks.
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