What is Legal Innovation?
Haim Sandberg – School of Law, The College of Management Academic Studies
-- Is law itself an arena of innovation – of legal innovation? Can we learn something about the nature of legal innovation from the general field of innovation research? In my essay, What is Legal Innovation (2021 U. Ill. L. Rev. Online 63), I argue that legal innovation is no less impressive and influential than innovation in other fields and should attract more scientific attention.
Law is a very ancient discipline and many of its most revolutionary innovations were born at times when there simply did not exist any means of measuring innovation, or even the aspiration to measure it. Can anyone minimize the innovative value of ideas such as the Ten Commandments or the need for judges? Can anyone second-guess the tremendous contribution made by the development of the “promissory note” as a means of payment, or the emergence of the innovative idea of a company with a separate legal identity?
Some of the innovations introduced in the field of law throughout the course of human history are no less astonishing than technological innovations and the list is very long: the emergence of legal instruments (law, constitution, courts, deed, company, trust, codex, condominium, registry of rights), the emergence of abstract legal ideas and concepts (good faith, tort liability, human rights, environmental protection, consumer protection, intellectual property), the emergence of judicial legal doctrines (equity, estoppel), the emergence of legal process (the adversarial method, witnesses, jurors, class action) and the emergence of research methods and legal thought (law and economy, law and society, a critical approach to law, a feministic, historical, empirical or psychological analysis of law).
The development of these innovations required a significant degree of creativity, as well as persistence and the ability to confront opposition. It typically did not emerge all at once; rather, it evolved in a multi-stage creative process. In many instances, it arose not only from legal activity, but from creativity and innovation in other fields or from the need to address changes or innovations that emerged outside of the law. Legal innovation also stemmed from competition over resources. Legal innovation does not necessarily happen on podiums or in the writings of theoreticians, but rather it comes about in the day-to-day reality of lawmakers and implementers of law. Many legal innovations have impacted reality to a degree comparable to that of the influence of technological and scientific innovations.
The law, especially intellectual property law, supports and regulates technological and creative innovation. Yet, the legal discipline is more preoccupied with identifying innovation in other areas than in analyzing the characteristics of its own innovations. In other areas of innovation, technological and scientific, there is an attempt to measure or appraise the innovation. Innovation taxonomies attempt to distinguish between types of innovation. In What is Legal Innovation I suggest that it is time to develop a new field of research: the research of legal innovation. The development of such a field will necessitate the use of scholarly tools developed in innovation research in other areas, such as taxonomy of legal innovation to study the diverse forms of legal innovation. I further show how, even in the ostensibly conservative field of land law, original and high-impact processes of legal innovation have evolved and how the innovation process that has yielded them raises questions relevant to innovations in other fields.
Legal innovation research can assist in understanding legal innovation and provide tools to support its development. It may enhance the focus of legal research and extend the scope of impact of its products. Moreover, it may integrate into the general puzzle of innovation research.