I can recall exactly when I became very interested in the relationship between the law and innovation. In the 1980s it was often said that Germany’s economic position was at risk because there was not enough innovation. Principally, the legal system was blamed. This was a theory that even then-Chancellor Kohl put forward.
If the law is the cause of a lack of important innovations, this does not necessarily have to be due to the law as such. Rather, it must be asked how the law should be reformed or developed so that essential and significant innovations, and their respective opportunities, are made possible while avoiding their subsequent potential risks. However, one should not always be limited to looking at technological innovations like genetic engineering. It is also important to look at societal innovations – for example, changes in the public’s values and lifestyle, as well as changes to the law itself. What role does the law play in gender equality or the development of new forms of work or patient care?
The topic of innovation has long been a key subject in economic, political and social sciences. In my publications, I considered the role the law was actively playing in innovation research. In 1995, I founded the Center for Research in Law and Innovation at the University of Hamburg, and in 1998 published the series “Research in Law and Innovation”. However, my mission was postponed, but not abandoned, by my appointment as a senator of justice (1995 to 1997), and from 1999 to 2008 as a justice in the Federal Constitution Court. After I retired, I accepted a position at Bucerius Law School as a “professor of law and innovation”, a fitting follow-up to my earlier professional activities.
Innovations cannot be forced, but only made possible. Thus, it is especially challenging for the law to regulate something new without knowing what it is. So the law must be able to tackle the future’s problems in the present. That affects all areas of life, including new technology like nanotechnology or, as is currently especially pressing, digitalization and the implementation of artificial intelligence.
Globalization also presents challenges. We need increased regulation that can be effected across national borders. From the internet and online services, it can be seen that the balance of power has changed globally. A large portion of power lies with oligopolies like Google, Facebook and Amazon. Within the framework of their innovative business models, they are trying to weaken sovereign law as much as possible and create their own law. Thus, there is a risk that the interests and legal goods of others – for example, ours as citizens – will be curtailed. At the very least, provisions for a legal enclosure of societal self-regulation are required.
The subject of law and innovation allows me to analyze rapidly developing fields and, where appropriate, present recommendations for law reform. Time and again I notice that the questions to be considered are not currently specific characteristic of the topic of innovation. Rather, my considerations, time after time, lead to fundamental issues of the law and jurisprudence. That motivated me to deeply consider basic questions about legal theory and methodology, as well as to draw on the approaches and insights of other sciences. Interdisciplinary curiosity and collaboration will surely foster the reciprocal gain of knowledge.
