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Proactive law


Proactive law seeks a new approach to legal issues in businesses and societies. Instead of perceiving law as a constraint that companies and people in general need to comply with, proactive law considers law as an instrument that can create success and foster sustainable relationships, which in the end carries the potential to increase value for companies, individuals, and societies in general.

The word proactive is the opposite of reactive, meaning that the approach to law is based on an ex ante view rather than an ex post view. According to the dictionary of Merriam-Webster, the word proactive refers to acting in anticipation of future problems, needs, or changes. Thus, the proactive law approach challenges the traditional backwards and failure oriented approach to law by acting in anticipation of legal disputes, taking control of potential problems, providing solutions, and self-initiation, instead of reacting to failures and shortcomings.

The hotbed of the proactive law movement is the Nordic countries and Finland in particular. The movement took off in the late 1990s and is almost similar to the American movement – Law as a Competitive Source. Both of these parallel evolutions are founded on the work of Louis M. Brown, developed in the 1950s known as the preventive approach to law.

The proactive law movement has become more visible in recent years, but the idea of an ex ante view is not new. It is generally known that the earlier a dispute or a potential dispute is addressed, the better the chances of a fair, just and prompt solution.Louis M. Brown was the first to introduce the ex ante view in his ground-laying book “Preventive Law”. Although he identified and organized the preventive law into a distinctive way of thinking, he was not the inventor of this approach. It has been, and still is, well known to many legal professionals and every business manager that:

“It usually costs less to avoid getting into trouble than to pay for getting out of trouble.”

In order to understand the general principles of proactive law, we need to identify the core principles of preventive law, as these principles create the foundation on which proactive law and Proactive Contracting is built. Edward Dauer has identified four core principles of preventive law:



  • Predicting human behavior: A legal solution, which anticipates and takes into account what people will do and by doing so, preventing litigation. This improves personal and business relationships, and constitutes an essential part of the preventive law.
  • Conflict management: Preventive law is drawing parallels from the medical context, illustrated by the fact that successful medical treatment is prophylactic.
  • Embracement of risks: Instead of focusing solely on reducing one or a few elements of risks to zero, the preventive law approach focuses on the overall sum of risks and strive to reduce the overall risk.
  • Preventive legal service: Lawyers and in-house counsels must participate with others in multi-disciplinary teams in the planning of the business’ venture. By bringing in legal expertise earlier, it becomes possible to detect and prevent legal problems from occurring.
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Wikipedia

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