Cognitive Techniques of Legal Innovation

We can consider the law as a technology: a tool to answer the problems and the needs of human beings. We should not confuse legal certainty with the immutability of law. Changes are a common feature of law in the Western legal tradition. History abounds with examples of legal innovations driven by legislators, courts, lawyers, and scholars. Legal innovation often drives economic development. Behind these innovations, the learned hand of the lawyer is at work. This chapter is not about the legal techniques employed to change the law (for instance, legislative reforms). It looks instead at the cognitive techniques of innovation that lawyers employ. Using selected examples of the most significant legal changes that took place in the last decades in different fields of the law, this chapter tries to single out and describe the cognitive techniques employed when lawyers are called to answer old and new problems.