: Law As Engineering: Thinking About What Lawyers Do

Law As Engineering: Thinking About What Lawyers Do

Kate Galloway

law-as-engineeringDavid Howarth; Edward Elgar, 2014; 256 pages; UK£20 (paperback).

What is a lawyer? What do we expect from legal education? What is the connection between the two? Education in the law has been caught for centuries in cycles that alternately prioritise academic theory and focus on practical skills. (In Australia we are now tipping towards the latter.) For all this however, perhaps we remain unclear on just what it means to be a lawyer and what is the purpose of legal education. David Howarth seeks to answer these questions using the analogy of engineering. In doing so, he provides an interesting and useful account of the lawyer and their profession.

Having spent the majority of my career as a transactional lawyer, I was particularly taken with Howarth’s recognition of the dominance in legal practice of transactions relative to litigation. This really forms the backbone of his argument. I liked to say, of my property practitioner self, that my job was to make people’s dreams come true and I think Howarth validates my view. He describes the lawyer’s craft as creative: the transactional lawyer translates the client’s needs into a legal form. Not a form designed to withstand the scrutiny of appellate courts, but one that will facilitate the client’s relationships.

Howarth does not stop though at applying the engineering analogy to transactional lawyers. He also describes in engineering terms the work of litigators (military engineers), legislative drafters and policy-makers, judges (consulting engineers; bricoleurs) and legal academics. In doing so he challenges the dominant perceptions of lawyers as adversarial advocates, and constructs a plausible theory of lawyers as transactional innovators and problem solvers:

The characteristics of legal work are far from the combination of courtroom drama and overwhelming paperwork. … The qualities lawyers need most are not histrionics or pedantry but controlled imagination and creativity: imagination to comprehend problems both from their client’s point of view and from the point of view of the law, and creativity in solving those problems.

In other words, just as engineers do, lawyers ‘make things for clients.’

Having presented his argument about the nature of lawyers’ work and its resonance with engineering, Howarth follows up with two chapters on the implications that flow for ethics and for research in and teaching of law. He deals effectively with a variety of arguments about ethics and the nature of the lawyer’s work, using examples of disastrous consequences of lawyers’ involvement in the big collapses of the Global Financial Crisis, and engineers’ part in the Challenger explosion. The comparisons are instructive and provide a useful foundation for exploring just how ethics are central to his ‘creative design’ approach to lawyering. Indeed his explanation offers somewhat more than simply an alternative way to understand the role of the lawyer — notably through exploring the consequences of lawyers’ actions, and their role in public welfare.

Then through his explanation of the work of the academic, Howarth provides possibly the best explanation I have seen of the areas of academic work. He looks for ways in which the academic lawyer might better contribute to the practice of law — including to policy and legislative review — rather than focusing on a narrow and rarified field. I found this an interesting characterization particularly seeing potential for engaging students in such work.

For legal educators — and the profession — he also canvasses the role of a liberal legal education, instrumentalism, freedom and the centrality of adjudication in legal education. These issues are part of the ongoing discussion about the role and purpose of legal education and will be central to how we shape the profession in the future. Changes afoot in higher education in Australia will play into this debate.

For those engaged in equipping the profession to meet contemporary challenges, this book provides an excellent foundation from which to conceptualise the role of the lawyer and the system within which lawyers work.

KATE GALLOWAY teaches law at James Cook University.

(2011) 39(3) AltLJ 203
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