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An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
It’s a wonderful, and novel, jurisprudential concept to look at the law (and possibly legal theory) as a design with devices similar to those used by engineers rather than as the basis of a philosophical set of rules to guide our behaviour.
David Howarth has trodden a courageous path here by offering a new approach which is set out in his innovative work “Law as Engineering” from Edward Elgar Publishing Ltd.
The book is well referenced throughout as one would expect with Elgar’s highly academic publications. Howarth’s starting point really begins in chapter 2- what do lawyers do?- when he writes: “The popular image of lawyers is all about litigation”.
This sweeping observation is very much the perception of the general public, especially concerning what one performs as Counsel in court. Of course, in reality it’s just one of many activities which lawyers perform but the concept leads on to chapter 3 ' “law-as-engineering” - which is the heart of the book.
In chapter 3 Howarth states: what is the service that lawyers offer their clients? This is where we actually think about what we give: the comparison between the function of a lawyer and an engineer is compared and contrasted to identify those matters which are common to both jobs. It is a bit technical but it is a fair point!
On the basis that Howarth has provided a justification for his thesis, he then goes on to examine its main implications. They cover the role of professional ethics, legal research and teaching which offer many similarities between the two occupations/functions thus strengthening his basic view.
The concluding chapter reviews Howarth’s thesis and examines the 4 possible objections to treating law as a form of engineering.
For jurisprudential purposes they comprise: (1)although it might be true in quantitative terms that lawyers mainly engage in activity that can be described in terms of engineering, in some other, qualitative, sense, those activities are not as important as litigation and adjudication.
(2) law-as-engineering is merely the latest in a line of instrumentalist conceptions of law- it being a mistake to treat law as a means to an end.
(3) treating law as a form of engineering encourages manipulative behavior that fails to respect human autonomy.
(4) law-as-engineering breaks the link between law and justice and replaces it with a technocratic view imbued with the worst aspects of legal positivism.
There is always a place for a new concept in the incomplete and developing world of jurisprudence and Howarth treats us to a delightful option which will amuse some, baffle others but generally adds to the continuing legal and philosophical debate which is the new twenty-first century jurisprudence.
