Law new is a term that evokes a sense of change and anticipation. It has been used to describe a broad and growing area of legal scholarship that attempts to deal with our modem legal system in a way that seems new and different from existing approaches. This scholarship, despite its many incarnations and definitions, is essentially a reinter pretation of the discipline of legal scholarship to meet the demands of our modem legal system. The changes that it brings about are not dramatic or wholesale, but rather incremental and subtle.
The basic tenet of the new approach is that legislators and administrators do not see law as embodying general principles; they view it simply as a means of achieving policy goals. This shift in conceptual ization is crucial to the success of any legal scholarship that seeks to engage with modern legal realities.
This new view of law, and the resulting method of analysis, generates a different set of questions than does an analogy-based approach. In fact, when a legal scholar makes the shift from analogy to instrumental thinking and addresses legislators and admin istrators directly, he or she does not consider previous laws as sources of authority. Instead, he or she seeks out information on how and whether prior laws worked or failed, and what the results of those efforts were.
Similarly, when framing recommendations, a legal scholar does not search for solutions that are intellectually consistent with the pattern of past decisions; he or she seeks out what is effective and how it can be made more so. To do this, a legal scholar needs to rethink the very concept of law itself.
The result of this shift in conceptualization is that our contemporary legal system no longer looks like the legal systems that existed before modernization. While some commentators have suggested that our system is simply a reaction to an increasingly irrational public, a more convincing explanation is that the very conception of law has changed. This is the core of the problem and it must be addressed before any solution can succeed. The challenge is daunting, since a completely new conceptual system cannot be developed out of thin air or instituted by fiat. It must grow out of the experience and skills of current legal scholars, within their present institutional structures. Until it happens, any efforts to develop a new approach will remain marginal. That should not discourage those efforts, but it is important to realize that such efforts are unlikely to make a real difference until they do.