Connecticut Law Review Volume 44 – Issue 3

The Evolving Temporality of Lawmaking

Conventional wisdom suggests that law is past-oriented. That view always has been incomplete and is no longer as accurate as it once was. In fact, law always has been more future-oriented than is widely recognized. Additionally, during the last century, fundamental changes took place in attitudes about the nature and sources of law, as well as in the ways in which law is made. Predominately future-oriented methods of lawmaking—such as statutes, treaties, and administrative regulations— have expanded, while predominately past-oriented modes of lawmaking— such as the common law—have contracted. As a result, lawmaking has become even more future-oriented, and law’s memory of past law now plays a smaller role than it used to in determining the content of legal rules. Although this evolving temporality of lawmaking offers advantages, humans are not adept at predicting the future. Therefore, we should be cautious about projecting far into the future when making law, and we should minimize entrenchment of the law we make.

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