Law as Engineering

Law as Engineering

Thinking About What Lawyers Do

David Howarth

Law as Engineering proposes a radically new way of thinking about law, as a profession and discipline concerned with design rather than with litigation, and having much in common with engineering in the way it produces devices useful for its clients. It uses that comparison to propose ways of improving legal design, to advocate a transformation of legal ethics so that the profession learns from its role in the crash of 2008, and to reform legal education and research.

Chapter 1: Introduction

David Howarth

Subjects: economics and finance, law and economics, law - academic, law and economics, law and society, legal theory

Extract

How should we characterise what lawyers do? The question has both a sociological component and an evaluative component. As a sociological question it asks what functions lawyers perform – what precisely would be lost if they did not exist? As an evaluative question, it consists of asking what good do lawyers do? Are they worth having, and if so, are some kinds of lawyers more worth having than others? One of the dangers of inquiries of this kind is that there is a temptation to take the questions in the wrong order, to take the evaluative question first and to ask the sociological question only in the form of asking to what extent the real world meets the standards set by the ideal. For example, one might conceive of the role of lawyers as, in some form or other, to secure justice, and then to ask how far the legal profession provides that form of justice. One example of that procedure sets up an ideal of the ‘lawyer-as-hero’, the lawyer who fights injustice through the courts, taking on the rich and powerful to win cases for the poor and oppressed, and then points out, unsurprisingly, that heroism is in practice in short supply.