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 3: Law as engineering

David Howarth

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


What is the service that lawyers offer their clients? Lawyers themselves tend to think in terms of ‘advice’. Clients want to achieve something – restructure a debt, float a company, securitise assets, buy a house, provide for relatives after they die, or bring in a new government policy – and lawyers advise them about how to do it. But ‘advice’ does not fully capture what lawyers offer. Clients do not write contracts or leases or statutes on the advice of lawyers. Lawyers write them. Indeed, contracts, leases and statutes are often difficult for clients to understand without assistance. Their importance lies, for clients, in what they accomplish, not in their inner workings. Lawyers’ advice comes in the form of informing clients about what it is possible or not possible to achieve (or possible or not possible to achieve easily). It is about the risks attached to the various courses of action lawyers can facilitate, not about how that facilitation works. A better way of characterising the situation is that lawyers make things for their clients. Clients want things that help them to achieve their ends, and are interested in their effects and risks, but they are not particularly interested in the detail of how they work. Clients, from banks to governments, want to change their circumstances and want to put in place arrangements that bring about those changes, but specifically how those arrangements work is left to lawyers.

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