Abstract

In ‘Law as Engineering’ (2013) I attempted to describe what lawyers do in terms of their design activities. The popular conception of lawyering is that it exclusively concerns litigation, especially in the criminal courts, but most of the time most lawyers are engaged in a quite different activity – they are designing devices for clients: contracts, trusts, companies, wills, conveyances and so on. Lawyers working for the state are also mainly employed as designers, in their case additionally of regulations, statutes, constitutions and treaties. The basic pattern is the same as in any design activity. The lawyer, as a designer, needs to elicit what the client wants and what constraints the client is working to, but also has to bring the client to understand what it is possible and not possible to achieve. The lawyer then generates options for achieving the client’s objectives within the constraints and looks for the best solution available.

Lawyers, like all designers, need to understand the properties of the materials and the forces they work with – in their case legal rules – which, crucially, includes understanding their limitations. Similarly, lawyers, like all designers, use characteristic design processes, in their case most notably the preservation and re-use of patterns and combinations of rules that seem to be effective. But I was intrigued by a comparison between engineering design and legal design, which seemed to point to a number of deficiencies in how lawyers characteristically approached finding design solutions, especially a failure to generate more than a very few options – sometimes only one – and a related tendency to start from old solutions rather than from an abstract understanding of the problem (although it turned out the designers of UK statutes, the Office of Parliamentary Counsel, have been taking counter-measures against this tendency for many years). It also seemed to me that if lawyers were to take a more systems engineering approach to their design work, a number of advantages would flow, especially in understanding how legal devices go wrong.

I have now embarked on several follow-up projects. In one, funded by the AHRC , I am asking whether it is possible to compile a comprehensive catalogue of legal rules, alongside their known effects and limitations, possibly to the extent of being able to put together a form of pattern language for the design of statutes. In another, I am asking how the conception of law as a form of engineering design might be applied to fields of law to which it does not obviously apply – especially the litigation dominated field of civil liability in which much of the law arises from the decisions of judges. Judges seem to face very big obstacles to being able to design well. They are in a poor position to see the system as a whole and it is very unclear who their clients are.”

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David Howarth is Reader in Law and Director of the MPhil in Public Policy in the University of Cambridge. He works in three departments – Law, Politics and International Studies and Land Economy. His interests were originally in civil liability law, about which he wrote a prize-winning book, but he was diverted into thinking about design after being commissioned to write a journal article about whether legal studies should be classified as part of the humanities, which led him to the thought that law was more like engineering than history. After an interlude in public life, he developed that thought into a book, ‘Law as Engineering: Thinking about what lawyers do’ (2013).