definition of a legal dissertation

Legal Dissertation: Research and Writing Guide

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About This Page

Choosing a topic can be one of the most challenging aspects of writing an extensive paper. This page has resources to help you find topics and inspiration, before you get started on the in-depth research process.

Related Guides

Citation and Writing Resources

Legal Research Tutorials

Secondary Sources for Legal Research

Methods of Finding Cases

Methods of Finding Statutes

Current Awareness and Alerting Resources

Compiling State Legislative Histories

Locating International and Foreign Law Journals

This guide contains resources to help students researching and writing a legal dissertation or other upper-level writing project. Some of the resources in this guide are directed at researching and writing in general, not specifically on legal topics, but the strategies and tips can still be applied.

The Law Library maintains a number of other guides on related skills and topics that may be of interest:

The Wells Library also maintains guides. A few that may be helpful for managing research can be found here:

Choosing a Topic

This video discusses tips and strategies for choosing a dissertation topic.

Note: this video is not specific to legal dissertation topics, but it may still be of interest as an overview generally.

The Bloomberg/BNA publication United States Law Week can be a helpful resource for tracking down the major legal stories of the day.  Log into Bloomberg Law, in the big search box, start typing United States Law Week and the title will appear in the drop down menu beneath the box. This publication provides coverage of top legal news stories, and in-depth "insight" features.

If you have a general idea of the area of law you wish to write about, check out the Practice Centers on Bloomberg. From the homepage, click the Browse link in the top left-hand corner. Then select Practice Centers and look for your area of law. Practice Centers are helpful because they gather cases, statutes, administrative proceedings, news, and more on the selected legal area.

Bloomberg has other news sources available as well. From the homepage, click the Browse link in the top left-hand corner. Then select News and Analysis, then select News or Analysis, and browse the available topics.

If you know what area of law you'd like to write about, you may find the Browse Topics feature in Lexis Advance helpful for narrowing down your topic. 

Log into Lexis Advance, click the Browse Topics tab, and select a topic.  If you don't see your topic listed, try using the provided search bar to see whether your topic is categorized as a sub-topic within this list. 

Once you click on a topic, a box pops up with several options.  If you click on Get Topic Document, you'll see results listed in a number of categories, including Cases, Legislation, and more.  The News and Legal News categories at the right end of the list may help you identify current developments of interest for your note.  Don't forget about the filtering options on the left that will allow you to search within your results, narrow your jurisdiction, and more.

Similar to Lexis Advance, Westlaw Edge has a Topics tab that may be helpful if you know what area of law you'd like to write about.

Log onto Westlaw Edge, and click on the Topics tab.  This time, you won't be able to search within this list, so if you're area is not listed, you should either run a regular search from the main search bar at the top or try out some of the topics listed under this tab - once you click on a topic, you can search within its contents.

What is great about the Topics in Westlaw Edge is the Practitioner Insights page you access by clicking on a topic.  This is an information portal that allows you quick access to cases, legislation, top news, and more on your selected topic.

In United States federal courts, a circuit split occurs whenever two or more circuit courts of appeals issue conflicting rulings on the same legal question. Circuit splits are ripe for legal analysis and commentary because they present a situation in which federal law is being applied in different ways in different parts of the country, even if the underlying litigants themselves are otherwise similarly situated. The Supreme Court also frequently accepts cases on appeal that involve these types of conflicted rulings from various sister circuits.

To find a circuit split on a topic of interest to you, try searching on Lexis and Westlaw using this method:

in the search box, enter the following: (circuit or court w/s split) AND [insert terms or phrases to narrow the search]

You can also browse for circuit splits on Bloomberg. On the Bloomberg homepage, in the "Law School Success" box, Circuit Splits Charts appear listed under Secondary Sources.

Other sources for circuit splits are American Law Reports (ALR) and American Jurisprudence (AmJur). These publications provide summaries of the law, point out circuit splits, and provide references for further research.

"Blawgs" or law-related blogs are often written by scholars or practitioners in the legal field.  Ordinarily covering current events and developments in law, these posts can provide inspiration for note topics.  To help you find blawgs on a specific topic, consider perusing the ABA's Blawg Directory or Justia's Blawg Search .

Research Methodology

Types of research methodologies.

There are different types of research methodologies. Methodology refers to the strategy employed in conducting research. The following methodologies are some of the most commonly used in legal and social science research.

Doctrinal legal research methodology, also called "black letter" methodology, focuses on the letter of the law rather than the law in action. Using this method, a researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). The purpose of this method is to gather, organize, and describe the law; provide commentary on the sources used; then, identify and describe the underlying theme or system and how each source of law is connected.

Doctrinal methodology is good for areas of law that are largely black letter law, such as contract or property law. Under this approach, the researcher conducts a critical, qualitative analysis of legal materials to support a hypothesis. The researcher must identify specific legal rules, then discuss the legal meaning of the rule, its underlying principles, and decision-making under the rule (whether cases interpreting the rule fit together in a coherent system or not). The researcher must also identify ambiguities and criticisms of the law, and offer solutions. Sources of data in doctrinal research include the rule itself, cases generated under the rule, legislative history where applicable, and commentaries and literature on the rule.

This approach is beneficial by providing a solid structure for crafting a thesis, organizing the paper, and enabling a thorough definition and explanation of the rule. The drawbacks of this approach are that it may be too formalistic, and may lead to oversimplifying the legal doctrine.

Comparative

Comparative legal research methodology involves critical analysis of different bodies of law to examine how the outcome of a legal issue could be different under each set of laws. Comparisons could be made between different jurisdictions, such as comparing analysis of a legal issue under American law and the laws of another country, or researchers may conduct historical comparisons.

When using a comparative approach be sure to define the reasons for choosing this approach, and identify the benefits of comparing laws from different jurisdictions or time periods, such as finding common ground or determining best practices and solutions. The comparative method can be used by a researcher to better understand their home jurisdiction by analyzing how other jurisdictions handle the same issue. This method can also be used as a critical analytical tool to distinguish particular features of a law. The drawback of this method is that it can be difficult to find material from other jurisdictions. Also, researchers should be sure that the comparisons are relevant to the thesis and not just used for description.

This type of research uses data analysis to study legal systems. A detailed guide on empirical methods can be found here . The process of empirical research involves four steps: design the project, collect and code the data, analyze the data, determine best method of presenting the results. The first step, designing the project, is when researchers define their hypothesis and concepts in concrete terms that can be observed. Next, researchers must collect and code the data by determining the possible sources of information and available collection methods, and then putting the data into a format that can be analyzed. When researchers analyze the data, they are comparing the data to their hypothesis. If the overlap between the two is significant, then their hypothesis is confirmed, but if there is little to no overlap, then their hypothesis is incorrect. Analysis involves summarizing the data and drawing inferences. There are two types of statistical inference in empirical research, descriptive and causal. Descriptive inference is close to summary, but the researcher uses the known data from the sample to draw conclusions about the whole population. Causal inference is the difference between two descriptive inferences.

Two main types of empirical legal research are qualitative and quantitative.

Quantitative, or numerical, empirical legal research involves taking information about cases and courts, translating that information into numbers, and then analyzing those numbers with statistical tools.

Qualitative, or non-numerical, empirical legal research involves extracting  information from the text of court documents, then interpreting and organizing the text into categories, and using that information to identify patterns.

Drafting The Methodology Section

This is the part of your paper that describes the research methodology, or methodologies if you used more than one. This section will contain a detailed description of how the research was conducted and why it was conducted in that way. First, draft an outline of what you must include in this section and gather the information needed.

Generally, a methodology section will contain the following:

• Statement of research objectives
• Reasons for the research methodology used
• Description and rationale of the data collection tools, sampling techniques, and data sources used, including a description of how the data collection tools were administered
• Discussion of the limitations
• Discussion of the data analysis tools used

Be sure that you have clearly defined the reasoning behind the chosen methodology and sources.

• Legal Reasoning, Research, and Writing for International Graduate Students Nadia E. Nedzel Aspen (2004) A guide to American legal research and the federal system, written for international students. Includes information on the research process, and tips for writing. Located in the Law Library, 3rd Floor: KF 240 .N43 2004.
• Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? Mark van Hoecke Oxford (2013) This book examines different methods of legal research including doctrinal, comparative, and interdisciplinary. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 235 .M476 2013. IU students may request item via IUCAT.
• An Introduction to Empirical Legal Research Lee Epstein and Andrew D. Martin Oxford University Press (2014) This book includes information on designing research, collecting and coding data, analyzing data, and drafting the final paper. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 85 .E678 2014. IU students may request item via IUCAT.
• Emplirical Legal Studies Blog The ELS blog was created by several law professors, and focuses on using empirical methods in legal research, theory, and scholarship. Search or browse the blog to find entries on methodology, data sources, software, and other tips and techniques.

Literature Review

The literature review provides an examination of existing pieces of research, and serves as a foundation for further research. It allows the researcher to critically evaluate existing scholarship and research practices, and puts the new thesis in context. When conducting a literature review, one should consider the following: who are the leading scholars in the subject area; what has been published on the subject; what factors or subtopics have these scholars identified as important for further examination; what research methods have others used; what were the pros and cons of using those methods; what other theories have been explored.

The literature review should include a description of coverage. The researcher should describe what material was selected and why, and how those selections are relevant to the thesis. Discuss what has been written on the topic and where the thesis fits in the context of existing scholarship. The researcher should evaluate the sources and methodologies used by other researchers, and describe how the thesis different.

The following video gives an overview of conducting a literature review.

Note: this video is not specific to legal literature, however it may be helpful as a general overview.

Not sure where to start? Here are a few suggestions for digging into sources once you have selected a topic.

Research Guides

Research guides are discovery tools, or gateways of information. They pull together lists of sources on a topic. Some guides even offer brief overviews and additional research steps specifically for that topic. Many law libraries offer guides on a variety of subjects. You can locate guides by visiting library websites, such as this Library's site , the Law Library of Congress , or other schools like Georgetown . Some organizations also compile research guides, such as the American Society of International Law . Utilizing a research guide on your topic to generate an introductory source list can save you valuable time.

Secondary Sources

It is often a good idea to begin research with secondary sources. These resources summarize, explain, and analyze the law. They also provide references to primary sources and other secondary sources. This saves you time and effort, and can help you quickly identify major themes under your topic and help you place your thesis in context.

Encyclopedias provide broad coverage of all areas of the law, but do not go in-depth on narrow topics, or discuss differences by jurisdiction, or  include all of the pertinent cases. American Jurisprudence ( AmJur ) and Corpus Juris Secundum ( CJS ) have nationwide coverage, while the Indiana Law Encyclopedia focuses on Indiana state law. A number of other states also have their own state-specific encyclopedias.

American Law Reports ( ALR ) are annotations that synopsize various cases on narrow legal topics. Each annotation covers a different topic, and provides a leading or typical case on the topic, plus cases from different jurisdictions that follow different rules, or cases where different facts applying the same rule led to different outcomes. The annotations also refer to other secondary sources.  

Legal periodicals include several different types of publications such as law reviews from academic institutions or organizations, bar journals, and commercial journals/newspapers/newsletters. Legal periodicals feature articles that describe the current state of the law and often explore underlying policies. They also critique laws, court decisions, and policies, and often advocate for changes. Articles also discuss emerging issues and notify the profession of new developments. Law reviews can be useful for in-depth coverage on narrow topics, and references to primary and other secondary sources. However, content can become outdated and researchers must be mindful of biases in articles. 

Treatises/Hornbooks/Practice Guides are a type of secondary source that provides comprehensive coverage of a legal subject. It could be broad, such as a treatise covering all of contract law, or very narrow such as a treatise focused only on search and seizure cases. These sources are good when you have some general background on the topic, but you need more in-depth coverage of the legal rules and policies. Treatises are generally well organized, and provide you with finding aids (index, table of contents, etc.) and extensive footnotes or endnotes that will lead you to primary sources like cases, statutes, and regulations. They may also include appendices with supporting material like forms. However, treatises may not be updated as frequently as other sources and may not cover your specific issue or jurisdiction.

Citation and Writing Style

• Legal Writing in Plain English Bryan A. Garner University of Chicago Press, 2001. Call # KF 250 .G373 2001 Location: Law Library, 3rd Floor Provides lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. The leading guide to clear writing in the field, this book offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. This guide uses real-life writing samples that Garner has gathered through decades of teaching experience. Includes sets of basic, intermediate, and advanced exercises in each section.
• The Elements of Legal Style Bryan A. Garner Oxford University Press, 2002. Call # KF 250 .G37 2002 Location: Law Library, 1st Floor, Reference This book explains the full range of what legal writers need to know: mechanics, word choice, structure, and rhetoric, as well as all the special conventions that legal writers should follow in using headings, defined terms, quotations, and many other devices. Garner also provides examples from highly regarded legal writers, including Oliver Wendell Holmes, Clarence Darrow, Frank Easterbrook, and Antonin Scalia.
• Grammarly Blog Blog featuring helpful information about quirks of the English language, for example when to use "affect" or "effect" and other tips. Use the search feature to locate an article relevant to your grammar query.
• Plain English for Lawyers Richard C. Wydick Carolina Academic Press, 2005. Call # KF 250 .W9 2005 Location: Law Library, 3rd Floor Award-winning book that contains guidance to improve the writing of lawyers and law students and to promote the modern trend toward a clear, plain style of legal writing. Includes exercises at the end of each chapter.
• The Chicago Manual of Style University of Chicago Press, 2010. Call # Z 253 .U69 2010 Location: Law Library, 2nd Floor While not addressing legal writing specifically, The Chicago Manual of Style is one of the most widely used and respected style guides in the United States. It focuses on American English and deals with aspects of editorial practice, including grammar and usage, as well as document preparation and formatting.
• The Chicago Manual of Style (Online) Bryan A. Garner and William S. Strong The University of Chicago Press, 2017. Online edition: use the link above to view record in IUCAT, then click the Access link (for IU students only).
• The Bluebook Compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. Harvard Law Review Association, 2015. Call # KF245 .B58 2015 Location: Law Library, 1st Floor, Circulation Desk The Bluebook: A Uniform System of Citation is a style guide that prescribes the most widely used legal citation system in the United States. The Bluebook is taught and used at a majority of U.S. law schools, law reviews and journals, and used in a majority of U.S. federal courts.
• User's Guide to the Bluebook Alan L. Dworsky William S. Hein & Co., Inc., 2015. Call # KF 245 .D853 2015 Location: Law Library, Circulation Desk "This User's Guide is written for practitioners (law students, law clerks, lawyers, legal secretaries and paralegals), and is designed to make the task of mastering citation form as easy and painless as possible. To help alleviate the obstacles faced when using proper citation form, this text is set up as a how-to manual with a step-by-step approach to learning the basic skills of citation and includes the numbers of the relevant Bluebook rules under most chapter subheadings for easy reference when more information is needed"--Provided by the publisher.
• Legal Citation in a Nutshell Larry L. Teply West Academic Publishing, 2016. Call # KF 245 .T47 2016 Location: Law Library, 1st Floor, Circulation Desk This book is designed to ease the task of learning legal citation. It initially focuses on conventions that underlie all accepted forms and systems of legal citation. Building on that understanding and an explanation of the “process” of using citations in legal writing, the book then discusses and illustrates the basic rules.
• Introduction to Basic Legal Citation (Online) Peter W. Martin Cornell Legal Information Institute, 2017. Free online resource. Includes a thorough review of the relevant rules of appellate practice of federal and state courts. It takes account of the latest edition of The Bluebook, published in 2015, and provides a correlation table between this free online citation guide and the Bluebook.
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Law Library

Writing Academic Papers for Law School

• Substantial Writing Requirement
• How to Find and Narrow Your Topic
• Researching for Your Paper
• Other Support for Substantial Writing

The thesis of your substantial writing paper must meet several requirements:

• It must be original
• It must take a position, advance an argument, or propose a solution
• It must be concrete, identifiable, and manageable
• It must be novel, useful, nonobvious, and sound

Your approach to the topic may be descriptive, prescriptive, or both.

You should also do a preemption check on your thesis, which means you make sure no one else has argued your exact same thesis/argument. You research the key terms of your thesis to make sure that no scholarly work comes up in your list of results with the same thesis.

Types of Theses

Most law review theses fit into three main categories: proposing a solution to a legal problem, bringing an interdisciplinary idea into the law, and comparing two or more legal ideas.

Common Arguments

A law review thesis will usually engage in one or more common types of arguments. These may include:

• an argument from precedent,
• an interpretive argument,
• a normative argument, or
• an institutional argument.

For more information about these types of arguments, see Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 37-38 (5th ed. 2017).

Solution Theses

There are a few helpful ways to think about generating a solution as your thesis.

• This type of thesis might transfer a solution from one area to a new area.
• It might re-categorize claims and facts that have been made elsewhere.
• It might challenge assumptions about an area of law.
• It might extend or modify an existing theory or doctrine.
• It might borrow distinct legal principles to respond to new events.
• It might use analogy and metaphor.

For more information, see Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 55-56 (5th ed. 2017).

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Law: Proposal and Dissertation Writing

Structure of the proposal.

• Conventions of Scholarship
• Dissertation Writing
• Getting started
• Generate Research Ideas
• Brainstorming
• Scanning Material
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A proposal should proceed along the following steps:

(1) a clear problem statement is formulated;

(2) the significance of the problem is explained;

(3) a clear research question is formulated;

(4) an answer or solution to the problem is suggested;

(5) the originality of the answer or solution is indicated through a literature survey;

(6) the way in the which the argument will be substantiated in the bulk of the dissertation is outlined;

(7) the method used (and its suitability) to answer or solve the problem is explained;

(8) any definitional issues are clarified; and

(9) a bibliography of materials used is supplied.

• Step 1: Problem Statement
• Step 2: Significance of the Problem/Issue
• Step 3: Research Question
• Step 4: Argument/Answer
• Step 5: Originality of Argument(Literature Survey)
• Step 6: Substantiating the Argument (Chapter Outline)
• Step 7: Methodology
• Step 8: Defining Concepts (Optional)
• Step 9: Bibliography

A proposal commences with a clear problem statement.

• What is the problem that intrigues you?
• What is the issue that you want to deal with?
• What is the question that you want to answer?
• It is often useful to state in your first paragraph as clearly and succinctly as possible what is the problem that you are addressing. Once that is done, the problem is unpacked.
• What is the background to the problem?
• What are the logical building blocks in law and practice that lead to the problem?

These building blocks are very important because they are again reflected in the chapters, where argument is substantiated. Vital to a successful dissertation is a narrowly defined problem. As a research paper is confined to 18 000 words, the issue must be much more limited than that for a mini-dissertation (30 000), full thesis (50 000) or a doctoral dissertation (100 000).

As you will be spending a considerable amount of time on the dissertation, you have to justify this endeavour to yourself, your supervisor and your examiners. Moreover, if the problem is significant, the solution or answer to the problem will be equally important. The significance of the problem may lie in a number of areas. In the case of divergent judgments on an issue, the conflict creates confusion and conflict in practice. The importance could lie in poor service delivery because of badly designed governance structures. Overall, the aim is to state the importance of the research that you will be doing.

Given the problem outlined and having shown its significance, a research question must be formulated that it captures the problem statement. What is the issue or problem that you want to answer? This is a short, concise statement that hones the problem statement into one or more questions.

Very important is that this research question must have a legal focus. It is the legal question you want to answer. Although sub-questions may include issues of development, etc., the main focus must be on some form of law/regulation,etc.

This should also be a measurable question. Indicating your research question as "Examining the effectiveness of insider trading legislation" is not feasible. How will you measure the effectiveness of this legislation?

Having done the reading of the relevant materials you have by now developed a tentative argument or an answer to the problem. You need to state upfront how you will be addressing the problem, what will be the answer or solution. This argument is what binds the dissertation together – providing the central measuring rod in deciding whether any material is relevant or not.

When you start off the proposal writing, you will have some idea of what the answer / argument will be. However, as you develop and substantiate the argument in the various chapters through your thorough engagement with the materials, you may find that the argument is refined, adapted, or changed. This is totally acceptable and even expected. Therefore, while the proposal signals the commencement of the dissertation (and is chapter 1 of the dissertation), it may also be last piece that you write in order to reflect the refinement and reshaping of the argument that occurred along the way.

The criterion by which you will be measured is whether your dissertation has added or contributed to knowledge on the topic. What is the point of the dissertation if the problem has already been solved or the issue addressed?

You must demonstrate the originality of the argument by showing how it compares with the existing literature on the issue. This is done by reading extensively around the issue to determine what other authors have written. In some cases, when you have described the literature on the topic (who wrote and what did they say – not a listing of article or book titles!), you may conclude that no one has yet addressed the particular issue, and therefore, you will provide a unique contribution. Even if you find that the issue has been addressed, you may conclude that it was wrongly or inadequately done. You may argue, for example, that the academic interpretation of a line of court judgments was wrong. The academic enterprise is about challenging accepted views and doctrines.

The focus in the literature survey is on “literature”, namely what other scholars have written. This is not the place to describe the Constitution, legislation or court cases.

The main purpose of the literature survey is to:

(A) Indicate what has been written on the subject and

(B) What will your contribution be? ie, What has not been covered by the literature? How will you contribute?

The bulk of the dissertation is devoted to substantiating the argument. This is done through breaking down your argument into its basic components and devoting a chapter to each component. In the proposal the chapters are outlined, showing how each form part of the argument and contributes to the answer or solution. This is not done by just providing chapter headings. You have to indicate whatthe purpose is of each chapter and what will be argued in that chapter. The emphasis falls on the logical flow of the argument and how each chapter contributes to that flow.

This should be done by way of a brief paragraph description of what will be covered in each proposed chapter.

Having outlined how the argument will be substantiated in the various chapters, you have to show how you will go about this task. What are the materials that you will rely on? What is the methodology that you will follow? If you are analysing court judgments, your primary source of information are case reports. A further primary source of information is legislation, official documents, policies, notices, etc. A secondary source is what other authors have written about the same cases or legislation in the relevant field. As all these materials are found in a library or the internet you may refer to it as a desktop study.

You may want to use empirical data in substantiating your argument. There are a variety ways of collecting such data. Official sources may be used. Newspapers may also be referred to. You may even venture out and collect your own data by, for example, conducting interviews, or inspecting court records. In the case of interviews you need ethical clearance from the University’s Senate Research Committee.

If you are going to do a comparative research, you must explain why, indicate your comparators (comparative countries, etc.) and you must explain why you are using these specific comparators.

In the context of your proposal (and later in chapter 1 of the dissertation), it may be necessary to define some key concepts that will be used in the chapters. This is done to provide the necessary clarity when confusion and ambiguity may be present.

All the materials referred to in the proposal must be listed alphabetically in the bibliography. Use the following main headings:

• Laws, regulation and other legal instruments
• Other government publications: policies, reports, etc.
• Books, chapters in books, articles, reports, internet sources
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dissertation

Definition of dissertation

Examples of dissertation in a sentence.

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'dissertation.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

1651, in the meaning defined above

Dictionary Entries Near dissertation

dissertative

Cite this Entry

“Dissertation.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/dissertation. Accessed 30 May. 2024.

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Thesis Law and Legal Definition

Thesis is a document submitted as a requirement for an advanced academic degree. A thesis consists of the results of research on a specific topic prepared by a candidate. Usually a thesis document advances a new point of view resulting from research. A thesis is usually implied rather than stated directly. A thesis statement declares what the research holder believe and what s/he intend to prove.

A valuable thesis must:

contain an arguable point with which people could reasonably disagree;

takes a stand and justifies the discussion presented;

tackle a subject that could be adequately covered in the format of the project;

be specific and focused;

assert conclusion based on evidence;

provide the reader with a map to guide him/her through the work;

anticipate and refutes the counter-arguments; and

avoid vague language, first person.

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The Nature of Law

Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the most intricate aspects of human culture. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions.

Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated. (We will return to this later.)

Thus, elucidating the conditions of legal validity and explaining the normativity of law form the two main subjects of any general theory about the nature of law. In section 1, we will explain some of the main debates about these two issues. In section 2, we will discuss some of the methodological debates about the nature of general jurisprudence. In the course of the last few centuries, two main rival philosophical traditions have emerged about the nature of legality. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, natural law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin . The philosophical origins of legal positivism are much earlier, though, probably in the political philosophy of Thomas Hobbes . The main controversy between these two traditions concerns the conditions of legal validity. Basically, legal positivism asserts, and natural law denies, that the conditions of legal validity are purely a matter of social facts. In contrast to positivism, natural law claims that the conditions of legal validity are not exhausted by social facts; the moral content of the putative norms also bears on their legal validity. As the famous dictum, commonly attributed to Saint Augustine, has it: lex iniusta non est lex (unjust law is not law). (Augustine, De Libero Arbitrio, I, 5; see also Aquinas, Summa Theologica, I-II, Q. 96, Art. 4.)

1.1 The Conditions of Legal Validity

1.2 the normativity of law, 2.1.1 conceptual analysis views, 2.1.2 investigating law itself, 2.1.3 the metanormative inquiry view, 2.1.4 the prescriptive view, 2.1.5 constructive interpretation of legal practice, 2.2.1 preliminaries, 2.2.2 is legal theory evaluative in the relevant sense, other internet resources, related entries, 1. general jurisprudence.

The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis. The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts. Early legal positivists followed Hobbes’ insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source of legal validity resides in the facts constituting political sovereignty. Law, they thought, is basically the command of the sovereign. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards. These facts, such as an act of legislation or a judicial decision, are the sources of law conventionally identified as such in each and every modern legal system. One way of understanding the legal positivist position here is to see it as a form of reduction: legal positivism maintains, essentially, that legal validity is reducible to facts of a non-normative type, that is, facts about people’s conduct, beliefs and attitudes.

Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. And again, it is possible to view this position as a non-reductive conception of law, maintaining that legal validity cannot be reduced to non-normative facts. See the entry on natural law theories .

The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be. The Separation Thesis, however, has often been overstated. It is sometimes thought that natural law asserts, and legal positivism denies, that the law is, by necessity, morally good or that the law must have some minimal moral content. The Social Thesis certainly does not entail the falsehood of the assumption that there is something necessarily good in the law. Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it would have to have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality. Once again, the Separation Thesis, properly understood, pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances.

Many contemporary legal positivists would not subscribe to this formulation of the Separation Thesis. A contemporary school of thought, called inclusive legal positivism , endorses the Social Thesis, namely, that the basic conditions of legal validity derive from social facts, such as social rules or conventions which happen to prevail in a given community. But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the norms, depending on the particular conventions that happen to prevail in any given community. The social conventions on the basis of which we identify the law may, but need not, contain reference to moral content as a condition of legality (see, for example, Waluchow 1994).

The natural law tradition has undergone a considerable refinement in the 20th century, mainly because its classical, popular version faced an obvious objection about its core insight: it is just difficult to maintain that morally bad law is not law. The idea that law must pass, as it were, a kind of moral filter in order to count as law strikes most jurists as incompatible with the legal world as we know it. Therefore, contemporary natural lawyers have suggested different and more subtle interpretations of the main tenets of natural law. For example, John Finnis (1980) views natural law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily promotes the common good. As we have noted earlier, however, it is not clear that such a view about the necessary moral content of law is at odds with the main tenets of legal positivism. To the extent that there is a debate here, it is a metaphysical one about what is essential or necessary to law, and about whether the essential features of law must be elucidated in teleological terms or not. Legal positivists do not tend to seek deep teleological accounts of law, along the lines articulated by Finnis, but whether they need to deny such metaphysical projects is far from clear.

The idea that the conditions of legal validity are at least partly a matter of the moral content or merits of norms is articulated in a sophisticated manner by Ronald Dworkin’s legal theory. Dworkin is not a classical natural lawyer, however, and he does not maintain that morally acceptable content is a precondition of a norm’s legality. His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be. Evaluative judgments, about the content law ought to have or what it ought to prescribe, partly determine what the law actually is.

Dworkin’s legal theory is not based on a general repudiation of the classical fact-value distinction, as much as it is based on a certain conception of legal reasoning. This conception went through two main stages. In the 1970s Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is incapable of accounting for the important role that legal principles play in the law. Legal positivism envisaged, Dworkin claimed, that the law consists of rules only. However, this is a serious mistake, since in addition to rules, law is partly determined by legal principles. The distinction between rules and principles is a logical one. Rules, Dworkin maintained, apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome. On the other hand, principles do not determine an outcome even if they clearly apply to the pertinent circumstances. Principles provide judges with a legal reason to decide the case one way or the other, and hence they only have a dimension of weight. That is, the reasons provided by the principle may be relatively strong, or weak, but they are never “absolute.” Such reasons, by themselves, cannot determine an outcome, as rules do.

The most interesting, and from a positivist perspective, most problematic, aspect of legal principles, however, consists in their moral dimension. According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles are essentially moral in their content. It is, in fact, partly a moral consideration that determines whether a legal principle exists or not. Why is that? Because a legal principle exists, according to Dworkin, if the principle follows from the best moral and political interpretation of past judicial and legislative decisions in the relevant domain. In other words, legal principles occupy an intermediary space between legal rules and moral principles. Legal rules are posited by recognized institutions and their validity derives from their enacted source. Moral principles are what they are due to their content, and their validity is purely content dependent. Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations. As Dworkin put it in the most general terms: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (Dworkin 1986, 225). The validity of a legal principle then, derives, from a combination of facts and moral considerations. The facts concern the past legal decisions which have taken place in the relevant domain, and the considerations of morals and politics concern the ways in which those past decisions can best be accounted for by the correct moral principles.

Needless to say, if such an account of legal principles is correct, the Separation Thesis can no longer be maintained. But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction between rules and principles in the law: the relevant difference concerns the level of generality, or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical features Dworkin attributes to principles. More importantly, notice that if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility that an entire legal community may get its laws wrong. Any moral mistake in the reasoning leading to a legal principle might render the conclusion about the principle unsound, and the principle itself thus not legally valid. Since there is nothing to prevent judges and other legal actors from making moral mistakes, there is nothing to prevent a result whereby an entire legal community, and for a long time, gets its laws wrong (Marmor 2011, chapter 4). Perhaps Dworkin would have not found this problematic, but others might; the idea that an entire legal community can be systematically mistaken about its own laws might strike legal theorists as deeply problematic.

In the 1980s Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory of interpretation, and emphasizing law’s profound interpretative nature. Despite the fact that Dworkin’s interpretative theory of law is extremely sophisticated and complex, the essence of his argument from interpretation can be summarized in a rather simple way. The main argument consists of two main premises. The first thesis maintains that determining what the law requires in each and every particular case necessarily involves interpretative reasoning. Any statement of the form “According to the law in \(S\), \(x\) has a right/duty etc., to \(y\)” is a conclusion of some interpretation or other. Now, according to the second premise, interpretation always involves evaluative considerations. More precisely, perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se , but an inseparable mixture of both. Clearly enough, one who accepts both these theses must conclude that the Separation Thesis is fundamentally flawed. If Dworkin is correct about both theses, it surely follows that determining what the law requires always involves evaluative considerations.

Notably, the first premise of Dworkin’s general argument is highly contestable. Some legal philosophers have argued that legal reasoning is not as thoroughly interpretative as Dworkin assumes. Interpretation, according to this view, long maintained by H.L.A. Hart (1961, chapter 7), is an exception to the standard understanding of language and communication, rendered necessary only when the law is, for some reason, unclear. However, in most standard instances, the law can simply be understood, and applied, without the mediation of interpretation (Marmor 2011, chapter 6).

Dworkin’s legal theory shares certain insights with the inclusive version of legal positivism. Note, however, that although both Dworkin and inclusive legal positivists share the view that morality and legal validity are closely related, they differ on the grounds of this relationship. Dworkin maintains that the dependence of legal validity on moral considerations is an essential feature of law that derives from law’s profoundly interpretative nature. Inclusive positivism, on the other hand, maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of law or of legal reasoning as such. Inclusive positivists accept the Social Thesis; they claim that moral considerations affect legal validity only in those cases where this is dictated by the social rules or conventions which happen to prevail in a given legal system. The relevance of morality is determined in any given legal system by the contingent content of that society’s conventions. As opposed to both these views, traditional, or as it is now called, exclusive legal positivism maintains that a norm’s legal validity is never dependent on its moral content. Legal validity, according to this view, is entirely dependent on the conventionally recognized factual sources of law.

It may be worth noting that those legal theories maintaining that legal validity partly depends on moral considerations must also share a certain view about the nature of morality. Namely, they must hold an objective stance with respect to the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also be rendered subjective, posing serious problems for the question of how to identify what the law is. Some legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the skeptical conclusions that follow about the nature of law. According to these skeptical theories, law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is entirely subjective, it only demonstrates how the law is also profoundly subjective, always up for grabs, so to speak. This skeptical approach, fashionable in so-called post-modernist literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this literature in any sophisticated way.

Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies. Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains. Legal positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society. Before we unpack the various issues involved in this controversy, it might be worth noting that the debate about law’s coercive aspect is one good example of debates in jurisprudence that focus on what might be an essential or a necessary feature of law, regardless of its particular manifestations in this or that legal system. How to understand these claims about the essence of law, and the question of whether these claims are about metaphysics or something else, perhaps about morality, will be discussed in section 2.1.

Returning to law’s coercive aspect, there are several issues entangled here, and we should carefully separate them. John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law, maintaining that what we call “law” can only be those norms which are backed by sanctions of the political sovereign. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. It is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subjects’ ability to predict the chances of incurring punishment or evil and their presumed desire to avoid it.

In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its demands by violent means, is the most important of law’s functions in society. Twentieth century legal positivists, like H.L.A. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives?

Austin’s reductionist account of the normativity of law, maintaining that the normative aspect of law simply consists in the subjects’ desire to avoid sanctions, was discussed extensively, and fiercely criticized, by H.L.A. Hart. Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, “that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions” (Hart 1961, 82). This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions. If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. In other words, Hart’s fundamental objection to the predictive model is actually a result of his vision about the main functions of law in society, holding, contra Austin and Kelsen, that those functions are not exclusively related to the ability of the law to impose sanctions.

It is arguable, however, that law’s functions in our culture are more closely related to its coercive aspect than Hart seems to have assumed. Contemporary use of “game theory” in the law tends to show that the rationale of a great variety of legal arrangements can be best explained by the function of law in solving problems of opportunism, like the so called Prisoner’s Dilemma situations. In these cases, the law’s main role is, indeed, one of providing coercive incentives for the mutual benefit of all parties concerned. Be this as it may, we should probably refrain from endorsing Austin’s or Kelsen’s position that law’s only function in society is essentially tied to its coercive aspects. Solving recurrent and multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic expressions of communal values, resolving disputes about facts, and such, are important functions which the law serves in our society, and those have very little to do with law’s coercive aspect and its sanction-imposing functions.

The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20 th century, called the Legal Realism school. American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes. Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity (Raz 1994). The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But law is the kind of institution which necessarily claims to be a legitimate authority.

According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances. An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i.e., if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers may comply better with the balance of those reasons by following the legal speed limit than if they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.

Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces. If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on, then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. Authorities are there to make a practical difference, and they could not make such a difference unless the authority’s directive can be recognized as such without recourse to the reasons it is there to decide upon. In other words, it is pointless to have an authoritative directive if, in order to discover what the directive is, you have to engage in the same reasoning that reliance on the directive is supposed to replace. Secondly, for something to be able to claim legitimate authority, it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own reasoning about their reasons for action; authority requires some authorship.

Raz’s conception of legal authority provides very strong support for exclusive legal positivism because it requires that the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same considerations that the law is there to resolve. Therefore a norm is legally valid (i.e., authoritative) only if its validity does not derive from moral or other evaluative considerations that the law is intended to replace. Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the inclusive version of legal positivism. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.

Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. As Leslie Green observed, Hart’s “view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation,” and this Green finds troubling, because the rules of recognition point to the “sources that judges are legally bound to apply” (Green 1996, 1697). The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis (1969) conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations. Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.

From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. The referee in a soccer game is equally obliged to follow the rules of his game, and the fact that the game is conventional poses no difficulty from this, let us say, “internal-player’s” perspective. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is . Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well. (See the entries on political obligation and legal obligation .)

More recently, however, a number of philosophers have started to question the idea that there is something unique to the normativity of law, inviting us to see how laws might affect our reasons for action in ways that are not closely tied to the nature of law (Greenberg 2014, Enoch 2011, Marmor 2016 [2018]). Some of these views (e.g., Enoch, Marmor) purport to show that there are different ways in which the existence of various norms bear on people’s reasons for action, present in law as elsewhere, without denying that the law often makes a difference; these views only deny that there is something unique to the way law changes its subjects’ reasons for action, compared with other types normative demands. Others challenge law’s normativity from an opposite angle (Greenberg 2014, Hershovitz 2015), arguing that the only aspect of law that is of normative significance is the moral difference that it makes to people’s reasons for action.

In the last two decades of the 20th century, new challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. This methodological turn gained momentum with the publication of Dworkin’s Law’s Empire (1986), arguing that not only the law, as a social practice, is a profoundly interpretative (and thus partly, but necessarily, evaluative in nature), but that any theory about the nature of law is also interpretative in a similar way, and thus, equally evaluative. Many of those who do not necessarily share Dworkin’s views about the interpretative nature of legal practice, or the specifics of his theory of interpretation, have joined him in this methodological skepticism about the traditional aims of general jurisprudence, that is, about the possibility of developing a theory about that nature of law that would have general application and remain morally neutral. These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section.

It would be fair to say, however, that in the last few years, many legal philosophers have expressed a growing frustration with these traditional debates about the nature of law, calling for legal philosophy to move beyond the Hart-Dworkin debates and explore new avenues of research. Some of these new critics are content to abandon the project altogether, declaring the death of general jurisprudence (Hershovitz 2015). Others, however, are engaged in exploring new challenges. One emerging area of research concerns the artifact nature of law, aiming to learn something about the nature of law from the fact that law seems to be an artifact, created and sustained by humans for particular purposes. (See, for example, Burazin et al. eds., 2018.) Others explore connections between law’s features as artifact and fictionalism, suggesting that their underlying logic and metaphysics share a great deal in common (Marmor 2018). Another new and potentially fruitful area of research focuses on applications of philosophy of language to law, brining new developments in philosophy of language, particularly in pragmatics, to bear on questions of legal interpretation and understanding of legal content (Asgeirsson forthcoming, Asgeirsson 2015, Marmor 2014). This linguistic direction is not uncontroversial, however; some legal philosophers express skepticism about the idea that legal content is determined by linguistic factors (Greenberg 2011) and there is an ongoing debate about these issues. Finally, there also seems to be a growing interest in recent developments in metaphysics that might bear on a theory about the nature of law, and even debates about meta-metaphysics are beginning to emerge in the context of general jurisprudence, purporting to show that ways in which we think about the tasks of metaphysical inquiry may bear on ways we think about the law (Rosen 2010). For example, if the main task of metaphysics is to determine what really exists in the world, irrespective of what we think about it or ways in which we represent the world, metaphysics may not have much to say about the nature of law or, perhaps, it may indicate that only a scientific approach to jurisprudence can yield metaphysically respectable results. If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. This potential metaphysical interest in jurisprudence is at its infancy presently, and time will tell if this new approach gets us interesting results.

2. The Methodology of Jurisprudence

When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is. The first asks about the aims and success criteria for philosophical theories about the nature of law:

What is the target that first-order theories of law aim to capture, and when do they succeed in doing so?

The second asks about the role of evaluation in jurisprudential methodology:

Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive?

Each of these questions will be discussed in turn.

2.1 The Target of a Theory of Law

The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.

There are five main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. This approach is often associated with Hart’s influential work, The Concept of Law (1994). A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics. Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fifth kind of view, associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of legal practice. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.

On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In particular, the data to be systematized are taken to be people’s intuitions involving some shared concept of law (or cognate concepts like legal validity or legal obligation). In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or one of its cognates) applies.

What’s more, such a theory can be arrived at by employing the method of conceptual analysis, undertaken from the proverbial armchair. The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account. The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way (as opposed to an ad hoc manner). (For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro 2011, 16–22.)

Jurisprudence has been influenced by two main ways of understanding the relevant intuitions (or data) that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways. Accordingly, we find two main varieties of the conceptual analysis view of methodology.

The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies. Thus, intuitions about the concept of law are to be understood as linguistic intuitions about how to use the word “law.” On the present view, then, conceptual analysis is a mode of linguistic analysis. This sort of view was famously discussed in chapters 1 and 2 of Dworkin’s Law’s Empire (Dworkin 1986, 32, 43–46). It arguably traces back to the kind of ordinary language philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013, 210–212).

However, this understanding of concept possession has drawbacks. Perhaps the biggest source of concern in the present context is that this sort of view fuels a version of Dworkin’s “semantic sting” argument (Dworkin 1986, 43–46). The argument may be summarized as follows. Suppose legal theories aim to capture the concept of law and that concept possession just is a matter of knowing when the word “law” applies. If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity. After all, if legal theories are in this way semantic in nature, then disagreement about what the grounds of law are must boil down to disagreement about when the word “law” applies—at least assuming the parties to the disagreement are not merely talking past one another. But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are (and thus, what counts as law or as legal). On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. Legal practice, as Dworkin puts it, is not “a grotesque joke” (Dworkin 1986, 44). Accordingly, there must be something wrong with construing legal theories as mere semantic accounts of when the word “law” applies.

If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin’s preferred response, though, as we’ll see, one can reject conceptual analysis without adopting Dworkin’s own favored methodology. (More on that in sub-section 2.1.2.) Second, if one wants to still say that legal theories are in the business of analyzing the concept of law, then the obvious response to the semantic sting argument is to deny that concept possession just is a matter of knowing how the word “law” in its juridical sense is to be applied. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in.

The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. (This sort of richer view of concept possession is discussed, e.g., in Raz 2004, 4–7; Stravopoulos 2012, 78–79; Shapiro 2011, 16–22. It is perhaps also the sort of view presupposed by Hart.) On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.

However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized (Marmor 2013, 215–217; Raz 2004, 10; Leiter 2007, 177–79). One question that immediately arises is which concept of law, exactly, constitutes the proper target of a theory of law. Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law? Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared concept of law that is employed by practitioners in all jurisdictions—or if there is one, it is doubtful that it is anything more than the sort of thin concept that one possesses in virtue of knowing what the word “law” in its juridical sense means.

A deeper worry about all forms of conceptual analysis is the question of why we should care about anybody’s concept of law in the first place (Marmor 2013, 216–217; Leiter 2007, 177–79). After all, as philosophers, it seems that it is the nature of law itself that we care about understanding (Raz 2004, 7, 10). Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions. But it is not obvious that there is anything distinctively philosophical about such questions. Insofar as philosophers (qua philosophers) are interested in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a route to understanding that which it is a concept of (Raz 2004, 4, 10). Accordingly, one might think that what theories of law aim to capture is not anybody’s concept of law in particular, but rather the nature of law itself. (See also the entry on concepts , section 5.2.)

A possible response to this objection is to assert that since law is a social phenomenon and is in part constituted by practitioners’ own understanding of the practice they are engaged in, collecting evidence about the concept of law possessed by legal practitioners is an especially useful way to investigate law itself (Stravopoulos 2012, 79). Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly?

A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry. The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object— the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis (cf. Bealer 1998). Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature (Sarch 2010, 468–73). Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects (see the entry on platonism in the philosophy of mathematics ), it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously. While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law .

Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself , not any concept of it. Reductionist and naturalistic views fall into this category. (As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.)

In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way (Marmor 2013). The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be reduced to particle physics). Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e.g., about people’s behavior, beliefs and dispositions. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. (For more on metaphysical reduction in general, see Schroeder 2007, 61–83; see also the entry on scientific reduction .)

One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence takes the aim of legal theories to be to explain the nature of law itself (not anybody’s concept of it). But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so (Leiter 2007, 180–81, 183–99). (See also the entry on naturalism in legal philosophy .)

Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided. The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. Moreover, if legal practice (as a social phenomenon) is partially constituted by practitioners’ own beliefs and attitudes towards the practice they are engaged in, then evidence about legal practitioners’ concept of law might prove especially relevant as evidence about the law itself (Stravopoulos 2012, 79).

By contrast, naturalists tend not to endorse the armchair method of testing theories of law against intuition, given their aim of making “philosophical theorizing continuous with and dependent upon scientific theorizing” (Leiter 2007, 35). Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight (as others have argued with respect to intuitions in other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins 1998). On Leiter’s view, philosophers generally should aim to unpack the “concepts that have been vindicated by their role in successful explanation and prediction of empirical phenomena” (Leiter 2007, 184). Thus, he suggests a methodology that “tak[es] seriously the…social scientific literature on law…to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior” (Leiter 2007, 184). This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else. More generally, the naturalist owes an account of what features of law are most in need of explication and why.

A different sort of concern that arises for reductionist views (and perhaps naturalistic views as well) is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts (i.e., facts about what our legal obligations are) to a set of purely non-normative facts, e.g., social ones. One might think that this would impermissibly transgress the familiar (though not uncontroversial) is-ought gap. (For a discussion of this sort of worry about positivism, see Shapiro 2011, 47–49.)

In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do (Shapiro 2011, 188; see also Hart 1994, 110).

Another recent methodological view developed by Plunkett and Shapiro (2017) takes general jurisprudence to be just another branch of metanormative inquiry. The latter kind of inquiry as a general matter aims to explain how normative thought, talk, and entities (if any) fit into reality. Metaethics is another branch of metanormative inquiry, which focuses on how ethical thought, talk and entities fit into reality. Thus, on the present view the subject of inquiry in general jurisprudence would be legal thought, talk and entities (if any), and the aim of the field would be to explain how such thought and talk about law—as well as legal structures and legal properties (if any)—are best accounted for in one’s general philosophical view of reality. On this view, jurisprudential inquiry would be continuous with—and methodologically quite similar—to the work done in other areas of normative inquiry, especially ethics and aesthetics.

One question that arises for this position, however, concerns the extent to which this is a distinct methodology from those discussed above. If the focus of one’s metanormative inquiry is legal thought and talk, we seem to get rather close to the conceptual analysis picture of how jurisprudence should proceed. On the other hand, if the focus of inquiry emphasizes how legal entities or properties fit into reality in general, then the view ends up seeming rather close to the naturalist position that the topic of jurisprudential inquiry is phenomenon of law itself. Nonetheless, perhaps a particular attraction of the metanormative view is that it can show how both the conceptual analysis picture and the naturalist picture capture distinct pieces of the bigger enterprise of the task that jurisprudence is engaged in. Thus, rather than purporting to replace the other methodologies discussed above, the metanormative view, if sound, would do away with there being a privileged starting point for jurisprudential inquiry (such as metaphysics of legal content, the semantic analysis of legal statements, or the nature of legal obligations).

A different sort of approach to methodology in jurisprudence takes it that the proper aim of a legal theory is to specify a substantive conception of law that it would be especially desirable for people to adopt. Moreover, even if the conception of law that this inquiry ends up supporting departs radically from our pre-theoretical understanding of law, then the resulting theory would recommend abandoning that prior understanding of law. Accordingly, if jurisprudence is chiefly a prescriptive endeavor, then theories of law might end up being radically revisionist in nature (though, of course, not necessarily).

As explained in the next sub-section, Dworkin’s methodological view incorporates some prescriptive elements. But one prominent advocate of an exclusively prescriptive project is Neil MacCormick (MacCormick 1985; see also Campbell 1996; Murphy 2001; Postema 1989; Schauer 1996; Waldron 2001). MacCormick argues that there are compelling normative arguments in favor of adopting a positivist conception of law. In particular, he suggests that values like autonomy and freedom of conscience demand that the law not regulate with a heavy hand “the sphere of aspirational values, of duties of self-respect and of duties of love,” a sphere that concerns “questing for the good beyond duty, or for the right lines of development of a self, or for the proper regard to bestow upon one’s family, friends or neighbors” (MacCormick 1985, 35–36). Values like autonomy and freedom of conscience, McCormack thinks, support the claim that at least within this sphere of conduct, it is desirable to keep the question of what the law requires entirely separate from the question of what morality requires. (However, MacCormick also allows that the law properly can regulate the sphere of “duties of justice,” as these duties are in some sense weightier (MacCormick 1985, 35).) Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires. Thus, MacCormick seems to be offering a normative argument for a claim that has often been associated with positivism, namely a version of the Separation Thesis. (Though, as seen earlier, it is not clear that all positivists must be committed to a strong version of this thesis.)

While the question of what conception of law it is most desirable that people adopt is surely a significant one, it is important to note that the prescriptive view of methodology in jurisprudence is not genuinely in competition with either the conceptual analysis view or the reductionist approach. After all, it might turn out, for example, that positivism provides the best account of our concept of law, or perhaps is the best reductive account of the phenomenon of law itself, even though there are compelling normative arguments for changing the practice or adopting a new concept of it that, say, comports with natural law theory. Accordingly, accounts of the concept of law, or reductive theories of law, are not necessarily inconsistent with prescriptive accounts of what legal theory it would be most desirable from the moral point of view to adopt.

A final methodological view, which deserves separate treatment both because of its influence and sophistication, is Dworkin’s (Dworkin 1986). This view takes it that (i) the target of a first-order theory of law is existing legal practice and (ii) these theories succeed to the extent that they offer a defensible constructive interpretation (in Dworkin’s sense) of that practice. According to the constructive interpretation view, the aim of a first-order theory of law is not to analyze any concept or to reduce legal facts to other more foundational facts. Rather, the aim of a legal theory is to reconstruct the behavior and self-understandings of participants in legal practice and, moreover, to do so in a way that casts this practice in its best moral light. As a result, a theory of law is more successful the better it both fits with the data about how legal practitioners understand the practice they are engaged in, while also normatively justifying that practice (Dworkin 1986; Perry 1995, 129–31; see also the entry on legal interpretivism ).

One concern about the constructive interpretation view of methodology in jurisprudence is that it may not be in genuine competition with either the conceptual analysis or reductive views of methodology. After all, one sort of project is to explain what law actually is and how it operates (perhaps according to our concept of it). But it is a very different sort of project to explain how we should conceive of the law in order for legal practice to be normatively justified. It seems possible that our account of what law actually is tells us one thing (e.g., that certain features of it are essential and others not), while our account of what law should be like in order for the practice to be as justified as possible tells us to think of law in a rather different way (e.g., as having different essential features). Accordingly, some have argued that the constructive interpretation view engages with the other methodological views mentioned above only if it denies what they assert: viz., that legal theories attempt to provide an explanation (perhaps of some particular kind—e.g., reductive) of the actual nature of law (or perhaps our concept of it).

One way that adherents of the constructive interpretation view might deny what certain other methodological views assert is by denying that it is even possible to give a reductive explanation of law. (For discussion, see Marmor 2013, 218.) The thought would be to claim that law is a normative practice, and normative facts cannot be reduced to purely non-normative facts without losing something essential. In response, the reductionist might either deny that legal facts are genuinely normative (in which case the sought-after reduction would be unproblematic), or she might assert that any successful reduction will have to reduce legal facts to a set of facts that includes normative facts (in which case a version of natural law theory might appear attractive).

2.2 Is Legal Theory Inherently Evaluative?

A second widely-discussed question about jurisprudential methodology is whether first-order legal theories are inherently evaluative. The above views about the proper target of first-order theories of law have different implications about this second question. But before explaining that, we must first get the relevant question more clearly in view.

To begin with, one might wonder where the interest in the question of whether legal theory is inherently evaluative comes from. Some of this interest likely traces to the skeptical worry that legal theories purporting to be purely descriptive in fact are pushing some hidden ideological or political agenda. (For more on this, see, e.g., John Gardner’s introduction to Dickson 2004.) A second source of the interest in this question may be the suspicion (or hope) that if legal theory proves to be inherently evaluative, that would be an independent reason to adopt some version of natural law theory. Whether this is so remains doubtful, however, since meta-questions about the methodology of legal theory prima facie seem to be independent of questions in first-order legal theory like what the determinants of the content of law are. What is more, legal scholars might be drawn to the present issue through consideration of Dworkin’s argument that there is a very tight connection between the evaluative nature of theorizing about the law and the evaluative nature of law itself, rendering the content of law inevitably dependent, at least in part, on moral-political considerations. Regardless of the motivations for engaging in the debate about whether legal theory is inherently evaluative, however, this debate has taken on independent significance and has been a fruitful source of insight in its own right.

To avoid confusion, the question we are concerned with here must be clarified in several ways. For there are a number of uncontroversial ways in which legal theory plausibly is or might be evaluative, and these do not go to the heart of the methodological debates in jurisprudence.

First, there are several trivial ways in which legal theory, like theories about any topic , plausibly cannot be entirely value-free. In particular, it seems that one cannot engage in the business of theorizing about law without evaluating the extent to which various theories are coherent, simple, clear, elegant, comprehensive, and so on (Dickson 2004, 32–33). Granted this means that legal theorists must engage in a form of evaluation. But there is nothing special about legal theory in this regard. After all, these meta-theoretical virtues are criteria for the success of theories about any subject matter.

A second seemingly uncontroversial way in which legal theory is evaluative is that one cannot begin to develop a theory of law without determining which of its central features are to be accounted for (Dickson 2001, 38–45). John Finnis, for example, argues that one cannot do first-order legal theory without taking a stand on what the important features of law are that adequate theories must explain (e.g., the law’s claim to authority). However, this seems to require evaluation (Finnis 1980, 9–15).

Nonetheless, it is not likely to be especially controversial that legal theory is evaluative in this way. To see why, distinguish between (a) thick evaluative claims , which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and (b) thin evaluative claims , which do not. (This distinction roughly tracks Julie Dickson’s distinction between directly evaluative propositions and indirectly evaluative propositions. See Dickson 2001, 51–55.) Thus, the simplest thick evaluative claims have the form: \(X\) is morally [all-things-considered] good [bad] . Such claims might also be comparative in nature, such that they have the form: \(X\) is morally [all-things-considered] better [worse] than \(Y\). By contrast, thin evaluative claims judge how well some item fares relative to a standard that is neither moral nor all-things-considered normative. Such claims do not entail any thick evaluative claims either. Examples of thin evaluative claims thus would include “\(X\) is important” and “\(X\) is interesting”. Accordingly, even if legal theorists must make thin evaluative claims in order to be able to begin the project of developing a first-order legal theory, this does not mean that they must make thick evaluative claims in order to do so. After all, one might construct a theory that captures a range of legal phenomena that are deemed central or important, while still remaining agnostic about whether these phenomena are themselves valuable.

A third way in which legal theory could in principle be evaluative, though uncontroversially so, is suggested by the prescriptive view discussed in section 2.1.3. If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative. Nonetheless, as seen above, prescriptive theories aim to answer a different question from theories in the conceptual analysis, reductive or interpretive categories. Thus, what matters to the debate about whether legal theory is evaluative is not whether legal theory in principle could be evaluative, but whether it is inevitably or necessarily so.

Now we are in a position to fully appreciate the question of primary interest here. In particular, it is whether theories about the nature of existing legal practice (or perhaps our concept of it) necessarily involve or entail thick evaluative claims about the law. That is, does offering a first-order theory of law of either the conceptual analysis, reductive or constructive interpretation varieties require one to accept claims about how valuable the law, or some feature of it, is? This is the question to be discussed in the remainder of this entry.

Some answers to the question that was discussed in section 2.1 suggest that theories of law are inherently evaluative in the sense of committing advocates of these theories to thick evaluative claims about the law. As we will see, this is most plausibly the case on the constructive interpretation view of methodology. By contrast, other answers to the question discussed in section 2.1 do not obviously entail that first-order legal theories commit their proponents to thick evaluative claims. In particular, this is the case for the conceptual analysis and reductive views of jurisprudential methodology. At least on their face, both these views seem to allow that there can be purely descriptive accounts of law—i.e., accounts that capture the central features of law without being committed to any moral or all-things-considered evaluation of the law. After all, one might think that a particular account does a good job of capturing some widely shared concept of law, but this does not obviously commit one to saying that law, on this concept of it, is good . Likewise, one might endorse a reduction of legal facts to some more foundational set of facts (e.g., certain social facts) without this committing one to thinking that the law is valuable or morally justified.

As a result, at least on their face, both the conceptual analysis and reductive views seem to allow that there can be first-order theories of law that are purely descriptive. Some argument would be needed if one is to endorse the opposite conclusion. Accordingly, let us consider some prominent arguments for thinking that legal theory must be inherently evaluative in nature. (For an overview, see Marmor 2011, 122–35.)

The argument from legal functions

One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that understanding what the law is requires taking a view about what functions it serves (Finnis 1980, 12–17; Perry 1995, 114–20). Moreover, one might think that functions are evaluative in the sense that attributing a function to something is to endorse a standard by which that thing may be judged as successful or unsuccessful. In this way, one might think that legal theory, too, is inherently evaluative.

While this line of thinking plausibly shows that legal theory requires accepting some evaluative claims, it does not obviously show that legal theory necessarily involves thick evaluative claims (Dickson 2001, 114–125). Claims of the form “the function of \(X\) is \(F\)” are naturally classified together with “\(X\) is important” (or more precisely, “\(X\) is important for some purpose \(Y\)”) as thin evaluative claims. Accordingly, asserting that the function of law is \(F\) does not obviously entail any thick evaluative claims about law. After all, it is not obvious why attributing a function to something requires believing that performing that function is either all-things-considered or morally good . Thus, attributing a function to law need not entail any thick evaluative claims.

The argument from the internal point of view

A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law. More specifically, taking the internal point of view towards the law is a matter of adopting some kind of attitude of endorsement towards it, seeing it as in some sense justified or as providing reasons for action (Shapiro 2011, 96–97; Perry 1995, 99–100; see also the entry on legal positivism ). Moreover, it is common to think that a critical mass of the participants in legal practice must adopt the internal point of view towards the practice in order for the practice to genuinely count as law. This is a fact that any adequate theory of law must account for, one might think. Accordingly, since the internal point of view involves a positive evaluation of the law, and since any adequate legal theory must account for this point of view, one might infer that any adequate theory of law must itself be inherently evaluative. (One finds versions of such an argument, e.g., in Perry 1995, 121–25; Waldron 2001, 423–28.)

It is unclear whether this argument succeeds, however. After all, it seems in principle possible to explain what kinds of considerations legal practitioners endorse, and why, without oneself endorsing those considerations. Similarly, a first-order legal theory might be able to plausibly explain the truism that legal practitioners tend to take the internal point of view towards (i.e., endorse) the law in their respective jurisdictions without the theory thereby being committed to the claim that the law in any particular jurisdiction (or the law in general) is valuable or justified. Accordingly, it is not obvious why a theory of law cannot in principle capture the internal point of view taken by legal practitioners towards the law without itself being committed to any thick evaluative claims about the law.

The argument from interpretation

Probably the most influential argument for thinking that legal theory is inherently evaluative proceeds from the idea that legal theory is an interpretive endeavor in Dworkin’s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor 2011, 126–30). To say that legal theory is an interpretive project is to claim that fully understanding what the law is requires construing it as the best instance it can be of the type of thing that it is. Moreover, one might think that in order to construe legal practice as the best instance of the kind of thing that it is requires making thick evaluative claims about the law. (See the entry on legal interpretivism .)

One might attempt to respond to this argument in two ways. A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good . Saying that Bernie Madoff was (for a time) the best fraudster in history does not entail that one approves of fraud. As a result, saying that the law must be thus-and-so in order to be a good instance of its kind does not commit one to any thick evaluative claims. Nonetheless, there is a deeper or more interesting sense in which Dworkin’s view renders legal theory inherently evaluative. For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires construing it in its best moral light . Thus, offering an interpretation of legal practice would require taking a stand on which of the available ways of construing that practice is morally better than the others. Of course, this does not necessarily require asserting that the law, on any particular construal, is good —full stop. But it does seem to require at least saying that some construals of legal practice are morally better than other construals would be. This looks to be a thick evaluative claim, albeit a comparative one. Moreover, one cannot make such comparative judgments without having a view about what would make one construal of legal practice morally better than another. Thus, in at least this sense, taking legal theory to be an endeavor that is interpretive in Dworkin’s sense would make legal theory count as inherently evaluative in the sense we are concerned with here.

Accordingly, if one wants to maintain the possibility of purely descriptive first-order legal theories, a more promising strategy for responding to the argument from interpretation would be to question its key premise—viz., that legal theory necessarily is an interpretive endeavor in Dworkin’s sense. In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given for it. That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. A critic of the argument from interpretation, then, might claim that the argument’s proponents have not carried their burden of providing a rationale for this premise, on which the argument crucially depends.

One possible rationale that might be offered here is that since social practices essentially involve communication, and understanding any form of communication necessarily involves interpreting speakers’ claims, understanding the social practice of law necessarily involves interpreting it. However, this rationale is too quick. Even if it is true that understanding any social practice requires interpretation of some kind or other , it does not follow that doing so requires a constructive interpretation in Dworkin’s sense —i.e., identifying a construal of the practice that casts it in its best moral light (Marmor 2011, 127–28). But the latter claim, of course, is what proponents of the argument from interpretation need to establish in order to reach their desired conclusion that legal theory is inherently evaluative.

Accordingly, we seem to be left in the following dialectical situation. Whether or not legal theory is inherently evaluative in the relevant sense depends on whether the argument from interpretation succeeds. Whether that argument succeeds, in turn, depends on its key premise, i.e., the claim that understanding the law necessarily requires giving a constructive interpretation of it. If a non-question begging argument can be given for this claim, then there would be reason to think that legal theory necessarily is evaluative in nature. By contrast, if no non-question begging argument can be given for thinking that understanding law requires a constructive interpretation, then one would be free to maintain that there can be purely descriptive first-order legal theories.

Of course, even if the argument from interpretation fails and purely descriptive legal theories remain possible , it could still be a worthwhile project to attempt to give a constructive interpretation of legal practice, and the output of this project would indeed be a partially evaluative theory. Nonetheless, these two types of theory would not genuinely be in conflict, as they would be addressed to answering different questions. In the end, therefore, “methodological pluralism” may be the most apt characterization of the state of play in jurisprudence.

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Austin, John | Bentham, Jeremy | concepts | feminist philosophy, interventions: philosophy of law | Hobbes, Thomas: moral and political philosophy | law: and language | legal obligation and authority | legal reasoning: interpretation and coherence in | legal rights | limits of law | mathematics, philosophy of: Platonism | naturalism: in legal philosophy | nature of law: interpretivist theories | nature of law: legal positivism | nature of law: natural law theories | political obligation | reduction, scientific

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Article Contents

Introduction, a definition of legal technology, a mapping and categorization of legal technology, implications of legal technologies, legal tech design and adoption considerations.

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Defining legal technology and its implications

 Associate Professor, Faculty of Law, University of Hong Kong, Pokefulam, Hong Kong. E-mail: [email protected] .

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Ryan Whalen, Defining legal technology and its implications, International Journal of Law and Information Technology , Volume 30, Issue 1, Spring 2022, Pages 47–67, https://doi.org/10.1093/ijlit/eaac005

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Legal technological developments have been both lauded as the promising future of the law and derided as a danger to the fundamentals of justice. This article helps reconcile these divergent perspectives by providing a definition of legal technology and a framework through which to understand its different types and their potential implications for the legal system and society more generally. Mapping technologies according to how specifically they afford legal uses, and the directness with which they engage in unmediated legal activities reveals different technological categories and their differing propensities to have legal, functional or general implications. This framework can help inform discussions both about which types of legal technologies to be excited about, and which to be concerned about, while also helping guide research, policymaking, design and adoption considerations.

Although excitement about how technology will change the practice or substance of law is nothing new, 1 recent years have witnessed rapid growth in both the development and marketing of legal technologies, and discussions about their implications. 2 The increasing sophistication of these technologies and their wider availability and adoption have generated two divergent narratives about their potential implications. These narratives alternately express excitement about legal technology’s potential to make the law more efficient and improve access to justice, 3 or concern about the ways in which it may actually exacerbate existing biases or otherwise systematically harm justice. 4 Although these two narratives appear to be at odds with one another, they can be reconciled by noting one simple and uncontroversial fact about legal technologies: they are diverse. However, despite their diversity, we lack a sufficiently precise and nuanced conceptualization to differentiate between the varied types of legal technology. To the extent that we currently have a vocabulary to categorize these technologies, it relies on the areas of law they are applied in. So, legal tech comprised ‘fintech, regtech’, 5 ‘smart contract’, 6 ‘e-discovery’, 7 etc. While this categorization tells us something about where or when a technology might be used, it overlooks all of the other dimensions these technologies can be sorted along as well as the similarities they share. At other times, scholars or commentators might examine legal tech by focusing on how specific technologies might be applied to the law. For instance, scholars have written about how technologies like search engines, 8 machine learning 9 or chatbots 10 might influence the law or legal practice. However, by focusing on specific types of technology these approaches offer little to help us make sense of legal technology as a whole. This lack of precision in commentary relating to legal technologies makes deep and meaningful discussion about their merits and demerits less precise than they should be. By more explicitly defining and categorizing legal technologies, this article seeks to help address this lack of precision.

The relationship between law and technology is much older than recent decades and includes much more than the computationally enabled information technologies often used as examples. For instance, important technological developments like writing, 11 papermaking 12 and citator organization 13 influenced the development of law and legal systems, and were each in different ways ‘legal’ technologies. The basket of technologies referred to as ‘legal tech’ is vast, and its constituent technologies vary in their design, their markets, their implications and the directness with which they engage with the law. Noting this diversity and identifying the important dimensions along which legal tech varies, can provide both a better understanding of what it means to be legal technology, as well as guidance about the potential implications and relevant design considerations they raise.

This article makes three contributions to the way we understand, study and discuss legal technologies. First, it offers a definition of legal technology as ‘all devices, capable of being used as a means for interacting with the substance of law or assisting its user to interact with the law, and the skills and techniques by which we use them’. Next, it situates those technologies within a two-dimensional mapping according to the directness with which they engage with the law and the extent to which they specifically afford legally related uses. Following from this mapping, and informed by the resulting taxonomy of legal technologies it provides, this Article then goes on to discuss the implications that legal technologies can give rise to and how these can and should inform the design, regulation and adoption of legal tech. Before we move on to mapping legal technologies and trying to understand the different types of implications they can have, we must first discuss what we mean when we talk about ‘legal tech’.

On the surface, the notion of ‘legal technology’ and what may or may not fall under its auspices, seems straight forward. One might say that legal technology is simply any technology that one might use while engaged in legal activities. However, this definition has a number of weaknesses. It is of course self-referential, defining the term in relation to its component parts. It also elides much of the nuance and diversity that exist within the bounds of legal technology, while at the same time being over inclusive and possibly incorporating many mundane technologies that have no intrinsic ‘legalness’ about them.

Because of the diversity of technologies that potentially fit within the ‘legal tech’ penumbra, scholars have struggled to produce a precise and concise definition of it. Webb defines legal technology as ‘the use of digital information and communication technologies to automate all or part of the legal work process, to offer decision support to legal service producers, and to provide legal information and advice directly to clients/end users.’ 14 Hoffmann-Reim offers a similar definition describing legal tech as ‘the use of digital technologies to assist in identifying, interpreting and applying the law and, in some instances, also in creating it.’ 15 Salmerón-Manzano focuses on legal tech as online services used by lawyers or those needing legal advice. 16 These are certainly helpful definitions, but they exclude many non-digital precursors of modern legal technologies. This is perhaps appropriate when discussing 21st century legal technologies but is unduly limiting when trying to understand the concept more generally. 17

Rather than focusing on precisely defining legal technologies, Gowder provides a helpful way to categorize them according to the type of effect they have on legal practice. 18 This categorization scheme sorts legal technologies into two types: the ‘cheaper lawyer’ type which replicates current practices but with greater efficiency, and the ‘transformative artificial legal cognition’ type that facilitates automated legal decision-making in ways not previously possible. This focus on how different legal technologies have different implications for legal systems provides an essential consideration for related discussion. However, we are still left without a clear definition of what precisely we mean when we talk about ‘legal tech’. In seeking a generally applicable and historically inclusive definition, we can begin by deconstructing the term into its constituent parts—legal and technology.

What is it to be ‘legal’?

To be ‘legal’ is of course to be ‘relating to the law’. 19 Although there is jurisprudential disagreement about what precisely the ‘law’ is, for our present purposes these philosophical disputes can largely be ignored. Provided we adopt a sufficiently expansive definition, little will turn on its precise philosophical perspective. Shapiro’s definition of legal activities as those that are ‘shared, official, institutional, compulsory, [and] self-certifying’ acts of social planning with a moral aim 20 provides one such sufficient definition of law and legality. These acts result in social plans, which can manifest as rules, regulations, norms, common law principles, etc that make up what we commonly think of as ‘the law’. So, to be a ‘legal’ technology is to be a technology related to one of these social plans or the resulting system of shared, official, institutional and compulsory rules, norms, etc. 21

In order to avoid an overbroad definition of the ‘legal’ portion of legal technology, we must also account for the nature of the relationship between the technology and the law. Not all technologies relating to anything that law touches upon will be ‘legal technologies’. This would subsume all technologies and make the ‘legal’ modifier meaningless. Rather, we must include limit legal technologies to be those that ‘interact with’ the law as such. That is to say, those technologies that interact with the substance of law itself—for instance the rules, norms, principles, etc—or the activities involved in discovering, creating, enforcing or complying with that legal substance. To return to Shapiro’s definition of law as social planning, technologies that engage with the law as such would include those that help form the plans, determine what the plans are or gauge whether activities conform to the plan.

Because of both law’s omnipresence and technology’s diversity, there are of course many ways that technologies can interact with the law. In the categorization of legal technologies below, I will detail some of these different ways and the important dimensions along which they vary. For now, let it suffice to say that if a technology is capable of interacting with the substance of law, or assisting its user to interact with the law, it is ‘legal’. With that addressed, let us now turn to shedding some light on precisely what we mean by ‘technology’.

What is technology

Much as defining ‘what is legal’ is the subject of a vast and varied literature, the task of attempting to define ‘technology’ has a similarly robust tradition. Although engaging deeply with this tradition is beyond our current scope, defining legal technology requires at least some discussion of what it means to be a technology.

Technology has at its roots two Greek words: techne (craftsmanship, craft or art) and logos (word, reason, discourse, etc) . Since the industrial revolution, the term has been remarkably fluid, having shifted in meaning from the study of craft and technical production to refer to the objects produced themselves. 22 The dictionary definition of the modern term is often something along the lines of ‘machinery, equipment, etc, developed from the practical application of scientific and technical knowledge’. 23 With its focus on machinery and equipment, this more traditional definition characterizes technology as artefact, thereby overlooking its non-physical aspects. Sociologists of science and technology offer a more inclusive definition, such as Bain’s ‘all tools, machines, utensils, weapons, instruments, housing, clothing, communicating and transporting devices and the skills by which we produce and use them.’ 24

Although helpful, Bain’s definition is also perhaps overly detailed, listing some terms redundantly (eg, a tool is also potentially a utensil and an instrument), and can be made more succinct. What Heidegger refers to as the instrumental definition of technology as a ‘means to an end’ helps in this regard by focusing on the ways technologies can be and are used as a vital aspect of the definition. 25 To ensure our definition is clearly inclusive of information technologies, which are so central to legal tech, 26 we can also include a reference to the ‘technique’ involved in using devices. This helps ensure that a computer clearly fits within the definition of technology but so too does a type of database or machine learning model. Putting these components together gives us a useful working definition of technology as: ‘all devices capable of being used as a means to human ends and the skills and techniques by which we produce and use them.’

Defining legal technology

We can adapt this general definition of technology to provide one that is focused specifically on legal technologies. Doing so leads us to a definition of legal tech as: ‘all devices, capable of being used as a means for interacting with the substance of law or assisting its user to interact with the law, and the skills and techniques by which we use them.’ This encompasses all technologies that are capable of being used towards ‘legal ends’.

This is an expansive definition, and will include many different types of technologies. Indeed, as technologies become more capable of taking on legally related roles, it will come to include more-and-more different types of technology. 27 The next section helps divide these technologies into their different types by characterizing them according to both their possible uses and the degree to which they directly engage with the law.

The definition of legal technologies as those capable of use as a means to interact with the law is expansive, incorporating a wide variety of technologies. To facilitate a useful mapping of these technologies that allows us to understand their different types in terms that extends beyond their practice area applications, I propose situating them along two dimensions: their legal ‘directness’, and their legal ‘specificity’. Legal directness refers to the extent to which a technology interacts with the law in a direct unmediated fashion. Specificity refers to how generic or specifically useful the technology in question is. Assessing legal technologies along these two dimensions provides a mapping of four different types of technology ( Figure 1 ).

Mapping legal technologies according to their ‘directness’ (how directly they engage with the law in an unmediated and/or official manner) and their ‘specificity’ (the degree to which they offer primarily legal affordances). Although useful for visualization purposes, these two dimensions are not truly orthogonal to one another, and do not bisect one another quite as neatly as shown. In reality, the ‘generic tech’ quadrant would occupy only a small corner on the bottom left. These technologies do not interact with the law directly or indirectly. Once a technology is capable of interacting with the law, even if in a quite mediated and indirect manner, it becomes ‘legal’ technology and thus the ‘generic legal tech’ quadrant would occupy much of the lower half of the space.

The ‘specificity’ dimension runs from generic technologies with many non-legal applications, to more specific technologies that are designed for or capable of being applied for primarily legally related purposes. While this may seem simple on its face, it is important to note that a technology’s ‘uses’ are not merely coterminous with its ‘capabilities’. Technologies are often used in ways for which they were not designed or intended, and users may or may not avail themselves of each of a technology’s capabilities. The ways technologies are used vary greatly by context, they change over time, differ between users and are thus difficult to define in specific and concrete ways.

The concept of technological ‘affordances’ 28 provides a way to discuss legal technologies’ capabilities, while also recognizing the complex and socially constructed nature of their actual or perceived uses and potential. Building on Gibson’s introduction of the notion of affordances to the cognitive psychology literature, 29 scholars of science and technology 30 and design 31 have adopted it to more precisely discuss how technologies can be and are used. Hutchby defines technological affordances as ‘the possibilities that [technologies] offer for action’. 32 Affordances describe all the functional capabilities that a technology has. Take for instance a paperback book. It has a wide variety of affordances including conveying a narrative story, weighing down papers in a windy office, swatting houseflies, etc. While these affordances are properties of the book, whether they are available depends on the context. When the book is perceived by someone not literate in its language, its narrative-conveying affordance is not available, yet it retains is capacity as a paperweight ( Figure 2 ).

The specificity dimension varies based on how generic or specifically legal a technology's affordances are.

All of this is to say that legal technologies also have affordances, and those sets of affordances vary in terms of how exclusively legal they are. The specificity dimension reflects this and represents the degree to which a technology has a specifically legal or more generic set of affordances. Sometimes the availability of those affordances will depend on context, such as whether the user is a layperson, a legal professional or someone serving in an official capacity, but regardless the affordances are there. Legal technologies with low specificity—that is to say generic technologies—may have legal affordances but also many non-legal ones. They can be applied to the law or legal practice, but they can also be used for unrelated purposes. For instance, the word processing software I am currently using is a generic technology. It can be used to engage with the law, but it is not primarily intended for such use and it has many non-legal uses. On the other end of the spectrum would be a technology with a very specific set of legal affordances, and few non-legally related ones. For example, an automated contract clause generator has almost exclusively legally related affordances.

The ‘directness’ dimension also relates to the affordances that a technology offers, but rather than focusing on how varied those affordances are it measures the degree to which a technology affords direct engagement with the law. There are two aspects of a technology that can affect this directness—the extent to which it requires a human intermediary to interact with the law and whether that interaction is official. Thus, directness spans a spectrum from technologies which are highly indirect, because they do not themselves refer directly to any legal substance and require an intermediary to do so, to those that engage with the substance of the law directly and officially. In a sense, this directness dimension can be thought of as representing not just the degree to which the technology in question can be used for legal ‘ends’, but the degree to which it does so by legal ‘means’ ( Figure 3 ).

The directness spectrum runs from highly indirect engagement with the law to direct and official engagement.

For example, consider different technologies all related to speed limit enforcement or compliance. The regular speedometer installed in a car is highly indirect. It functions to help ensure the driver’s behaviour complies with the law and thus fits our definition of a legal technology, but it requires extensive human intermediation to do so. The human driver needs to be aware of the local speed limit, to compare that with the speedometer’s readings and subsequently perhaps correct the vehicle’s speed. The police officer’s radar gun still requires a human intermediary, but it is calibrated and officially endorsed as a measure of vehicle speed, making its engagement with the law more direct than the unofficial driver’s speedometer. Finally, the speed camera requires no intermediary and engages directly and officially with the law by automating enforcement and issuing speeding tickets where appropriate. It is thus a very direct example of this type of technology.

These two dimensions—directness and specificity—are related but distinct. Technologies that are inherently very direct in nature—that is to say, those that incorporate or engage with legal rules directly and officially as a core part of their functionality—will often be specifically designed for legally related uses and thus have a set of affordances that is largely legally related. That said, this relationship runs from directness-to-specificity, but not necessarily in the other direction. There are many technologies that are specifically designed for use in legal practice that may not engage with legal rules at all and are thus relatively low in their directness. Consider a law firm’s contract precedent management system. It is specifically designed for legal uses by helping the firm track and reuse or adapt contractual provisions, but because the substance of legal rules does not feature in the design or use of the tool, it is not directly legal in nature.

Although there are of course many dimensions along which one can sort legal technologies, these two are particularly useful in providing a categorization that is distinct from the ‘field of practice’ categorizing approach that is presently dominant, and in doing so they help provide insight into the potential wider social, professional and legal implications arising from these technologies. Focusing on how ‘direct’ a legal technology is in its interface with the law represents the degree to which it automates behaviour that would otherwise require a human to complete. In doing so it can help distinguish between technologies that introduce great potential change to legal practice or enforcement. Technologies that are highly indirect and require extensive human intermediation between them and the law are ceteris paribus less concerning than those that potentially remove human intermediaries and engage directly with the law, potentially automating important legal tasks. Meanwhile, the specificity dimension can provide insight into the degree to which the technology in question is of general relevance—and thus perhaps best subject to general regulation—or whether it is more narrowly relevant to legal officials and practitioners—and thus perhaps more appropriately regulated via professional bodies or the courts.

The four quadrants of the directness–specificity space can be used to categorize technologies into types. In the low specificity, low directness quadrant, we find generic technologies. These are of little interest to our present purposes, as they neither afford legal uses nor do they engage with the law. The quadrant above generic technology represents the high specificity, low directness technologies that can be thought of as ‘shallow legal tech’. These technologies are designed for and afford uses that primarily relate to the law, but they do not engage meaningfully with the law as such. The bottom right quadrant, featuring the low specificity and high directness technologies, is home to ‘generic legal tech’. Like their generic neighbours to the left, they are not designed with specific legal uses in mind, but they can engage directly with the law. Finally, the top right corner of the space shows the high specificity and high directness technologies. These ‘deep legal technologies’ both afford primarily legally related uses and engage with the law directly and deeply. The following sections will further describe these types of technologies, before we turn to examining the different implications they can have.

Generic technologies

Generic technologies are those that do not engage with the law—or only do so in such a remote and indirect way as to have essentially no engagement—and have a generic (ie, non-legally related) set of affordances. This category includes the majority of technologies—from the curtains on my windows to the powerplant charging my laptop. Although these technologies are clearly important, they are beyond this article’s immediate scope and so will only be discussed in passing. What distinguishes these technologies from their generic legal technology counterparts is that they are as low on the directness spectrum as to have essentially no connection, or only an extremely attenuated connection, to the law and legal practice.

It is true that because the law touches on all human activities, generic technologies can, and often do, have implications for the law and legal practice. As such, they will appear in discussions about technological implications below. However, for the time being, our focus is on ‘legal’ technologies, and so we will turn first to the three other types of categories that are either used as the means to a legal end or that afford primarily legal uses.

Generic legal technologies

Generic technologies that have some degree of engagement with the law are perhaps ‘legal technologies’ but as a group are the furthest removed from the law and legal practice. They have a generic—as opposed to specifically legal—set of affordances, and because they are generic, they come in a wide variety of forms, including those that have only mediated and indirect engagement with the substance of the law and those that are more direct. For instance, this category includes all sorts of mundane and indirectly legal technologies like computers, highlighters or the Internet. These are generic technologies, in that they offer a widely varied set of affordances, and only engage with the law via extensive human intermediation. On the other hand, some generic technologies offer more direct legal engagement. Consider for example the self-driving car. 33 Its primary set of affordances are things like transportation, shelter, etc and it is thus on the generic side of the generic-specific spectrum. However, it also engages directly with the substance of the law, it features databases of legal rules and makes unmediated determinations about compliance.

Not all generic technologies are generic ‘legal’ technologies. The bicycle that the lawyer rides to work, or the shoes that she wears during her visit to the court are so far left on the ‘directness’ spectrum that they are simply ‘generic’. To be a generic ‘legal’ technology, the technology in question must be capable of being applied to the professional or personal practice of law, or it must engage with legal rules, codes or norms. That is to say, they afford legal uses.

Shallow legal tech

Moving on from generic technologies with some legal affordances, we come next to the technologies that are specifically legal because their affordances are primarily legally related, yet do not themselves engage directly with the law. These technologies are frequently used to engage with some aspect of legal practice—for instance, helping a practitioner discover the law or track legal developments—and thus are often used by lawyers, judges, law librarians and others who frequently engage in legal practice. Because they are designed with legally related uses in mind, they are high in ‘specificity’; however, they do not engage directly with the law and are thus low in ‘directness’.

Because so much of legal practice revolves around determining what the law is in relation to some scenario, many of the technologies specifically designed to assist in legal practice are meant to help in this process of legal search and retrieval. For instance, the many legal databases that catalogue and organize the law in its various forms fit within this category. These databases are designed to help lawyers, judges, clerks and others who might want to know what law governs some issue they have identified. Other examples of specific legal practice technologies include things like docket management systems used by courts, contract management systems used by corporations or patent prior art search engines. It is a broad category—including many information technologies—that continues to grow in its importance to the legal profession.

Much of the shallow legal tech category is populated by generic technologies that have been adapted specifically for legal use. This reflects the recombinatorial nature of technology, where technological developments are variously recombined and repurposed to produce new variants. 34 For instance, technologies like the docket management systems or legal opinion search engines referenced above are adaptations of generic database and information retrieval systems that have been specifically designed for legal applications.

What distinguishes these shallow legal technologies from their more deeply legal counterparts is their comparatively limited direct engagement with the law. For instance, while the precedent search engine may be very specifically designed for legal uses, and indeed a key part of many legal practices, it does not engage with the law as such. It makes no legal determinations and leaves the majority of the legal work to the human practitioner. Recently, more technologies have been moving beyond this dynamic by engaging more directly with the law as such, and by automating more legal work.

Deep legal tech

Atop the legal technology hierarchy are those technologies that afford primarily legal uses and that engage directly and deeply with the law. These technologies do so by making legal determinations, directly or indirectly enforcing the law, or perhaps by updating the law itself. Some might consider these ‘true’ legal tech because they are so closely entwined with the law. Much of the recent excitement about legal technologies revolves around the promise of deep legal tech to transform the institution of the law or the way we interact with it. 35

Despite their direct legal engagement, these technologies need not be overly complex, and some of them have been widely used for many decades. For instance, tax preparation software that takes as input one’s specific circumstances—eg, income, marital status, etc—and makes a determination about one’s tax obligations fits into this deep legal tech category. These programmes are designed to take into account the relevant tax law, and by comparing a set of facts to that law make legal determinations. When these technologies are official in nature and thus capable of making legally binding determinations about tax obligations, they become even more directly legal as they further reduce the need for human intermediation between the facts and the legal outcome. Other examples of deep legal tech include newer inventions like the so-called ‘smart contracts’ that are designed to monitor conditions and self-execute as the agreement dictates, 36 or automated trademark infringement detectors that use artificial intelligence to monitor IP portfolios and make judgements as to possible infringement. 37

At the apex of this ‘deep legal technology’ category are technologies—at this point mostly theoretical—that not only incorporate the rules into their engineering and make legal determinations, but that observe conditions and update the rules accordingly. These technologies offer much promise in addressing some of the weaknesses inherent in the way law is created, but also raise important ethical issues about the role of law and its legitimacy.

Although these technologies are at this point largely theoretical, we can imagine some examples. For instance, responsive speed limits provide a simple example of this sort of reactive legal technology. 38 By monitoring traffic congestion and updating local speed limits in order to help ensure safe traffic flow, automatic speed limiting technologies are not just taking rules and facts as input and giving legal interpretations as output, but rather are updating the current rules that govern behaviour.

In some ways, this theoretical type of legal technology engages in making law. Unlike the other types of legal tech which either assist in legal practice, or help one discover or interpret the law, these ‘law making technologies’ actually alter the rules that govern behaviour at any given time and can be empowered to dynamically alter legal obligations. For this reason, they have particularly powerful implications and correspondingly important design considerations.

Having spent all of this time and effort defining and mapping legal technology, it would be very understandable if one were to ask: ‘why?’ Why does it matter that the rather amorphous set of technologies sometimes referred to as ‘legal tech’ can be sorted along these two dimensions of their generic utility and the directness with which they engage with the law? Does the categorization that this sorting allows for provide more than a helpful ‘sense-making’ explication of legal technologies?

I believe the answer to these questions is that yes, identifying these dimensions along which we can situate legal technologies provides nuance that is useful when we discuss them. And, perhaps more importantly, thinking of legal technologies in this way provides insight into the varied concerns different types of legal technology raise in terms of their implications and the design and regulatory issues that they give rise to.

Before moving on to discuss these potential implications, it is important to note that the effects legal technologies might have are not simply a function of their capabilities but are also influenced by important social forces. There is a tendency in the literature to take an overly technologically deterministic approach in forecasting how legal tech will alter legal practice and legal systems more generally. 39 Deterministic accounts of technology equate technological progress with social progress and make assumptions based on a technology’s capabilities to infer how it will be adopted and what sorts of implications it will have. 40 In doing so, these accounts ignore the role of human agency both in the choices contributing to a technology’s design, and also in terms of how that technology will go on to be used. In reality, technology is not merely deterministic but is—at least in part—a social construct, and as such any discussion of its implications must account for its social context. To do so, technology can be considered not merely as a tool with inherent capacities that will become manifest as it is used, but rather as an entity which offers a variety of technological affordances that users may or may not avail themselves of. 41 Doing so reveals that, although technologies may have inherent affordances, they are also subject to human agency and are thus ‘both shaped by and shaping of the practices humans use in interaction with, around and through them’. 42 Conceiving of technological development and its implications as not merely deterministic, but rather as a function of both technology’s affordances and a degree of social construction that is constrained by those affordances, helps ensure a more realistic and nuanced understanding of the relationship between technology and society.

The relationship of legal technology to the law and legal practice has yet another consideration that must be accounted for—the limitations and possibilities within different jurisdictions. 43 For legal technologies, we can think of these as ‘legal affordances’ which can limit or enable the affordances of legal technology. From a jurisdictionally agnostic perspective, a legal technology might have a given set of affordances. However, that set of affordances can change dramatically in practice if that technology is regulated by a jurisdiction’s legal profession or laws. For instance, consider again our example of the automated speed limit enforcement camera. In theory, it affords direct enforcement of the law. However, these cameras are not legal in all jurisdictions. 44 In jurisdictions where their use is not legal, they have no legal affordance to enforce the law and may in fact be completely irrelevant. Thus, when considering what sorts of implications a specific legal technology might have, in addition to considering its inherent affordances, one must also consider the legal affordances in relevant jurisdictions.

To summarize, legal technologies’ implications are not deterministic. Rather, they are influenced by the affordances each technology might allow for, the choices made by users as they adopt (or ignore) each technology, and the legal affordances of the jurisdictions within which they might be used. All that said, these implications can be sorted roughly into three types and the likelihood of any given technology having implications of these varied types is related to its directness and specificity, as described above. In order to show how mapping legal technology along these two axes can help reveal design, adoption and regulation considerations, let us first explore three distinct types of implications that legal technologies can have: legal, functional and general.

Legal implications

Perhaps, the most obvious type of implication arising from the adoption of a new legal technology is the possibility that it alters the substance of the law. This occurs when the technology in question affects the form of some legal rule, norm, principle, etc. For instance, the responsive speed limit technology discussed above enables jurisdictions to reform comparatively crude speed limits tied only to the location of the road in question, or perhaps one or two other auxiliary inputs like the time of day or proximity to a school, with tailored speed limits that optimize traffic flow across an entire network of roads in response to live traffic conditions. The introduction of a technology like this could substantively change a jurisdiction’s traffic law by transforming a categorical rule to a more complex, technologically enabled, regulation system.

As another example, consider a hypothetical technology that allowed patent offices to precisely estimate the degree of innovation in a new invention claiming a patent. Doing so would allow for tailored patent terms in providing a longer duration of protection for more innovative inventions, and shorter duration for less innovative inventions. The introduction of this technology would enable a substantive change to the current binary that exists in patent law where—absent a few regulatory exceptions—all patentable inventions are entitled to the same duration of protection, 45 and any inventions not meeting the patentability bar receive no patent protection at all. 46

The sorts of legal technologies that enable the substantive alteration of legal rules are perhaps easiest to conceive in legal areas that do not raise contentious moral or ethical issues. In both of the examples provided above, technical designers could use relatively objective and clear utility functions to inform their design choices. In the case of traffic regulations—a largely amoral area of law—the function is to optimize both safety and efficiency, enabling those using the traffic system to safely reach their destinations in the most efficient manner. In the case of an innovation-measuring technology that optimizes patent terms, the utility function is a maximization of innovative output. This sort of technology would set out to tune the reward and incentive scheme provided by patent law to further this goal.

In areas of law where questions of morality are more salient, it is more difficult to imagine technologies that substantively alter the law in a manner that is not highly contentious. However, imagining dystopian technologies that substantively alter the law in contentious ways is not so difficult. Take for example a hypothetical invention that classifies speech as either constitutionally protected free expression, or regulatable unprotected speech. This would substantively alter free expression law by foregoing legislated rules or the use of judicial discretion, and instead create a technologically enforced rule wherein expressions deemed permissible are left alone, while those that are deemed impermissible are regulated accordingly—perhaps with a takedown notice or injunction requiring their correction. Even assuming the technology in question could accurately categorize speech into categories currently considered protected or unprotected—for instance by identifying fighting words 47 —automating the decision-making process and removing humans from the deliberation would be highly contentious. It would forego the possibility that new exceptions could be identified, or new interpretations made, while also precluding change in the meaning of words or the social context through which they are understood. Unlike the less controversial examples above, there is no objective utility function with which to design this technology. Not only do we not know how to accurately classify speech as protected or not protected—indeed it may be impossible to do this without a huge amount of contextual information—but perhaps more importantly, there is great disagreement about what should be in these categories. For instance, reasonable people can and do disagree about what it means to be threatening and the appropriate role of the fighting words doctrine in limiting (or not) free expression. 48

The lesson here is that technologies which substantively alter the law merit different degrees of oversight depending on whether or not they are able to integrate objective criteria in the way in which they transform the rules they alter. Some areas of law are largely divorced from contentious moral considerations and are either implicitly or explicitly structured in such a way as to produce some agreed upon outcome. These areas of law are most amenable to legal tech developments as they set out clearer design standards and raise fewer sensitive questions. Other areas of law do not present operationalizable objective criteria that can be used to inform its design. As such, these areas of law are less likely to be able to uncontroversially adopt technologies that substantively alter the law. In these areas, it may be that the humanness of the legal endeavour is central to the legal system’s legitimacy. 49

Functional implications

In addition to the way technology can substantively change the law, it can also give rise to functional implications that affect the way we interact with the law. These arise when the technology changes some facet of the way the law functions, or the way we practice, access or engage with the law—but do not necessarily alter the substance of a rule or make legal determinations. For instance, the adoption of a case management system that enables a court to hear more cases per day and thereby reduce the time required to render judgment has functional implications. Although they do not alter legal substance, these changes can be normatively important. Most consider the timely rendering of justice to be an important aspect in a well-functioning legal system, 50 as the saying goes ‘justice delayed is justice denied’, and thus the adoption of a technology that improves timeliness makes a normative improvement to the legal system without altering legal substance.

As another example, consider the implications that arise from a self-executing contract. These agreements—sometimes referred to as ‘smart contracts’—do not alter the substance of contract law. 51 Indeed, like all contracts they assume that contract law is a largely settled matter and rely on it to inform agreement drafting. However, the self-executing nature of these contracts has functional implications for the way in which private factors establish and enforce legal obligations. Because a truly self-executing contract automates enforcement of the agreed upon terms, it obviates the need for third-party enforcement. When a traditional contract is allegedly breached, the parties must ultimately rely on the state to enforce compliance or provide a remedy. In contrast, a self-executing contract does not allow for breach and, in theory at least, makes dispute resolution by arbitration or the state unnecessary. This has functional implications for the legal system by essentially rendering its dispute resolution function obsolete in enforcing the agreements between contracting parties.

These functional implications can also extend to the way that the law is structured. For instance, consider the implications of the introduction of tax preparation software. These programmes make it easier to navigate complex tax laws and apply them to one’s own—or one’s client’s—circumstances. As such, these sorts of software effectively make applying the law simpler, abstracting complexity away from the end user. But, these applications and other analogous legal technologies also have a more direct structural effect on the law that actually enables the complexity they seek to mitigate. 52 By making legal complexity easier to navigate, legal technologies can make it more practical for legislators and regulators to draft laws and regulations with a degree of complexity that would not be feasible absent the technological capacity to navigate them.

We have seen similar ‘complexification’ of the law enabled by the general use information retrieval technologies that are now common throughout legal study and practice. Berring argues that legal information retrieval systems, define the world of ‘thinkable thoughts’ 53 and that moving from published opinion reporters with clear categories and indices to full text search, atomizes the law creating a complex and evolving web of law and legal practice. 54

While functional implications are diverse, they share the trait of enabling legal change by altering how we practice, access or engage with the law, rather than by acting on the law itself by changing rules or making legal determinations. As such, these implications are one step removed from the law. They do not alter or engage with it directly, but by changing practical aspects of how humans engage with the law, they can have great influence.

General implications

In addition to the legal implications that technology can have by enabling changes to the law itself, and the functional implications it can have by altering methods of legal practice and the way legal systems function, legal technologies can also have more general social implications as they alter the communities governed by the legal systems that adopt them. These non-legal implications are like those that can arise from any technology, and I thus refer to them as ‘general implications’ here. This type of implication often arises as a consequence of the substantive and functional changes brought about by legal technology. Because the legal system is so thoroughly intertwined with society, changing the substance of the law, or altering its practice in functionally important ways, will almost certainly have follow-on effects that are non-legal in nature.

As an example, consider the general implications of writing down the law. Prior to the invention of writing, law—such as it was—would have been rooted in oral tradition and communal deliberation—perhaps interpreted or guided by some community elders or officials. 55 There are of course many differences between societies which use writing and those that do not, and the changes arising from writing down laws are only one of many. But that single act of transitioning from a system of laws that are not encoded to one where they are written down has substantial implications for how society can be ordered. It, at least in theory, makes the law clearer. It gives it further geographic reach and more consistency as it spreads from its point of origin. The greater consistency and certainty allowed by writing down the rules that govern legal relationships encourages innovations in commerce and industry. Posner argues that the capacity to write down rules—and thus to subsequently update, remove or change them—enables the law to develop at a faster pace, and thus enables more dynamic social systems. 56 Similarly, Vismann argues that a society’s legal framework is, at least in part, a function of its techniques and technologies for producing records. 57 The general implications that can arise when a legal system adopts the technology of writing are so fundamental and varied that they can be difficult to perceive from our current perspective within a highly technologically enabled legal system and society. That said, this example of a legal tech adoption—in this case the adoption of the generic technology of writing to legal practice—provides a clear demonstration of how legal technology can have wide ranging general implications beyond the law.

For a more future-oriented example of how adopting a legal technology could have implications beyond the legal system, consider the variety of ways that self-driving cars might alter the built environment. A true fully automated car, with the so-called Level 5 automation, 58 would be in the ‘generic legal tech’ category described above. Although not specifically designed for legal uses, these automobiles would ‘know’ all relevant traffic laws and constantly be making determinations based on them. While the introduction of Level 5 autonomous automobiles would almost certainly ultimately lead to substantive legal implications—after all many existing traffic laws are only required because humans are not very adept at coordinating high-speed transit—it would also have more general effects by altering transportation practices. This could influence where people choose to live and work, how public transit is funded, and much of urban planning. 59

The set of general implications that have arisen, and may arise in the future, due to the adoption of legal technology are too varied to cover here exhaustively. The wide-ranging importance of the legal system to social, political and cultural ordering means that when technologies alter the law or legal practice, there are often follow-on implications beyond the law itself.

These three types of implications can be ordered hierarchically in terms of how directly they implicate the law or the legal system—substantive implications are the closest to the law altering its substance; functional implications are one step removed from the law itself, altering the law by changing legal practice; finally, general implications arise when legal technologies have effects beyond the law or legal practice.

Every legal technology has its own propensity for generating each of these distinct types of implications. Some will be of minor import, and have few meaningful implications at all, while others have the potential to greatly transform the law, legal practice or society more generally. As a result, the development and adoption of legal technologies should be done with care and awareness of what may come.

Mapping legal technologies in the way proposed above—according to how directly they engage with the law, and how specifically they afford legal uses—and understanding that the implications of legal technologies can fit within the above taxonomy as either legal, functional or general, provides a framework to more precisely discuss and understand both the varied types of legal technology and the concerns that arise from their design and adoption. Although in theory each type of implication could arise from technologies within any of the described legal tech quadrants, these tendencies are not evenly distributed across the space. Increasing directness increases the likelihood that a technology will have substantive legal implications, moving upwards in specificity makes functional implications more likely, while moving towards the generic end of the spectrum makes important general implications more probable. Understanding these tendencies can assist the work of those who study, design, regulate or adopt legal technologies.

Just as any technology can have general implications, any legal technology can as well. That said, the more generic a technology is the more likely it is to have wide-ranging and important general implications. 60 As we move upwards in the specificity dimension, we reduce the probability of encountering technologies that produce these diffuse effects on society. This is not to say they are not possible, but rather that the probability of general implications decreases as a legal technology becomes more specifically designed for legal uses.

General implications are characterized by their diffuse nature. They can thus be difficult to predict when a technology is in its infancy. Given this, when it comes to anticipating and addressing the potential general implications of their products, legal technologists face a similar set of considerations as technologists more generally: more generically useful technologies are more likely to have wide-ranging general implications and they thus require careful forethought about the effects they may have. 61

As technology moves from the generic towards the specific end of the spectrum, it becomes more likely to have functional implications on the legal system. By definition, these specifically legal technologies influence how we engage in legally related activities. It is therefore in their nature to alter the way legal systems function and they thus raise issues that are important to the legal profession. For instance, specific legal technologies are more likely to raise issues related to access to justice. 62 These technologies have the capacity to reduce the cost of legal services, thereby improving access to justice, 63 or alternately provide tools only available to those who can afford them, thereby making access to justice less equal. 64 Because of the functional implications that are in their nature, specifically legal technologies are more likely to raise professional ethics-related design considerations. Designers of specifically legal technologies must, therefore, take into consideration the effects their technologies may have for consumers of legal services. Depending on their own interests, they may also wish to consider the effects on the legal profession more generally. After all, these functional implications are most likely to be relevant to those who make their living in a legal capacity. 65

In the other dimension, technologies that are more directly legal in nature, that is to say those that incorporate the law as a component or make unmediated legal determinations, are more likely to have substantive legal implications. Their capacity to engage directly with the law, means that these directly legal technologies can facilitate different rules than those that exist absent the technological enablement in question. By enabling substantive changes to the law, these technologies are more likely to raise normative concerns such as fairness, equality, due process or transparency.

Because of the normative concerns that can arise when technologies have the capacity for substantive legal implications, they must be treated with great care. Some would argue that these technologies should be strictly limited to a few areas of law, so as not to detract from law’s inherent humanity 66 At the least, these technologies are less likely to raise serious concerns when they engage with areas of law that do not raise serious moral questions. 67 When the law in question consists of ‘coordinating rules’ 68 with a clear utility function—such as the traffic law function of enabling safe and expedient movement of traffic—there is little concern about the substantive implications a technology might have. All that we care about is that the rule in question effectively achieves its purpose. On the other hand, when the laws in question raises important moral considerations—for instance criminal laws—we should be concerned about the substantive changes that legal technologies might enable. In these instances, technology must not be used to deprive individuals of their ‘right to a human decision’ 69 and if it is used at all, should be initially adopted in a hybrid form alongside human decision makers. 70

Legal technologists, regulators and practitioners should take these considerations into account. When developing, adopting or choosing whether to regulate legal technologies, one must understand what kind of technology it is and what type of implications it is most likely to give rise to. Mapping the technology in question according to how directly and specifically legal it is can help do so.

Legal technologies are diverse. They have the potential to both improve access to justice and to exacerbate inequality. Without a sufficiently rich conceptualization and an accompanying vocabulary, we risk eliding this diversity and impeding our ability to both capitalize on legal technology’s promises and face the challenges it raises. This article has offered a definition of legal technology as ’all devices, capable of being used as a means for interacting with the substance of law or assisting its user to interact with the law, and the skills and techniques by which we use them.’ It then categorized these technologies according to how directly they engage with the law and how specifically legal or general their affordances are. This reveals four types of technologies: generic; generic legal tech; shallow legal tech and deep legal tech. These provide a framework to think about and discuss legal technologies that extends beyond the usual ‘area of law’ categorizations that accompany them.

In conjunction with the legal tech definition and categorization, the taxonomy of legal tech implications as either legal, functional or general helps add nuance to discussions about the importance of legal technologies, and how they may alter the law, legal practice or society more generally. Legal technologies that are more generic are less likely to give rise to regulatory concerns when they are adopted for legal purposes. On the other hand, the more directly a technology engages with legal rules, the more likely it is to raise normative legal issues, such as concerns about justice, equality and democracy.

Although there is much uncertainty about the future of legal systems, it is almost certain that technology will play an increasingly high-profile role in practicing, accessing, enforcing and making the law. It is essential that, as we consider the future, we do so in a sufficiently nuanced manner to ensure we both benefit from the efficiency gains that legal technologies can offer, while also avoiding their more pernicious possibilities.

See eg, Louis H Mayo, ‘New Technology and National Goals Some Implications for Legal-Policy Decision Making’ (1961–1962) 37 Notre Dame Law Rev 33; Marise Cremona and Adam Hodgkin, ‘Electronic Publishing in Law: A Text-Base Approach’ (1989) 9 Oxf J Leg Stud 323.

See Roger Brownsword, Law 3.0: Rules, Regulation, and Technology (Routledge 2020); Jim Leason, Abigail Connor and Jimmy Vestbirk, ‘Legaltech Startup Report 2019: A Maturing Market’ (2019) < https://blogs.thomsonreuters.com/legal-uk/2019/10/18/a-new-report-legaltech-startup-report-2019-a-maturing-market/ > accessed 27 August 2020; In recent years, investments in legal tech firms have exceeded $1 billion Meg McEvoy, ‘ANALYSIS: 2019 Legal Tech Investments Top $1B After Strong Q3’ ( Bloomberg Legal Analysis , 11 October 2019) < https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-2019-legal-tech-investments-top-1b-after-strong-q3 > accessed 24 September 2020.

Andrew Arruda, ‘An Ethical Obligation to Use Artificial Intelligence? An Examination of the Use of Artificial Intelligence in Law and the Model Rules of Professional Responsibility’ (2017) 40 Am J Trial Advoc 443; John O McGinnis and Russell G Pearce, ‘The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services’ (2013–2014) 82 Fordham L Rev 3041; Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press 2013).

Mireille Hildebrandt, ‘Law as Computation in the Era of Artificial Legal Intelligence: Speaking Law to the Power of Statistics’ (2018) 68 UTLJ 12; Frank Pasquale, ‘A Rule of Persons, Not Machines: The Limits of Legal Automation’ (2019) 87 Geo Wash L Rev 1.

Douglas W Arner, Janos Barberis and Ross P Buckey, ‘FinTech, RegTech, and the Reconceptualization of Financial Regulation’ (2016–2017) 37 Northwest J Intl L& Bus 371.

Eliza Mik, ‘Smart Contracts: Terminology, Technical Limitations and Real World Complexity’ (2017) 9 LIT 269; Max Raskin, ‘The Law and Legality of Smart Contracts’ (2017) 1 Geo L Tech Rev 305; Pierluigi Cuccuru, ‘Beyond Bitcoin: An Early Overview on Smart Contracts’ (2017) 25 Int J Law Inf Technol 179.

Maura R Grossman and Gordon V Cormack, ‘Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient than Exhaustive Manual Review Annual Survey’ (2010–2011) 17 Rich J L & Tech 1.

Robert C Berring, ‘Legal Research and Legal Concepts: Where Form Molds Substance’ (1987) 75 Cal L Rev 15; Robert C Berring, ‘Chaos, Cyberspace and Tradition: Legal Information Transmogrified’ (1997) 12 Berkeley Tech LJ 189.

Harry Surden, ‘Machine Learning and Law’ (2014) 89 Wash L Rev 87; McGinnis and Pearce (n 3); Paul Gowder, ‘Is Legal Cognition Computational? (When Will DeepVehicle Replace Judge Hercules?)’ in Ryan Whalen (ed), Computational Legal Studies (Edward Elgar Publishing 2020).

Joshua D Blank and Leigh Osofsky, ‘Automated Legal Guidance’ (2020) 106 Cornell L Rev 179.

Richard A Posner, ‘A Theory of Primitive Society, with Special Reference to Law’ (1980) 23 J L Econ 1 (discussing the relationship between writing and legal system development).

Richard Leslie Hills, Papermaking in Britain 1488– 1988: A Short History (Bloomsbury Publishing 2015) 130 (referring to the importance of papermaking for legal document keeping).

Robert C Berring, ‘Legal Research and the World of Thinkable Thoughts’ (2000) 2 J App Prac Process 305; Berring, Legal Research and Legal Concepts (n 8) (exploring the relationship between citator development and legal categorization).

Julian Webb, ‘Legal Technology: The Great Disruption?’ in Richard L Abel and others (eds), Lawyers in 21st Century Societies (vol II, Hart Publishing 2021).

Wolfgang Hoffmann-Riem, ‘Legal Technology/Computational Law’ (2021) 1 J Cross-disciplinary Res Computational L.

Esther Salmerón-Manzano, ‘Legaltech and Lawtech: Global Perspectives, Challenges, and Opportunities’ (2021) 10 MDPI J Laws 24.

The trade press offers another source of definitions of legal technology, but they are often circular and of limited help in delineating the concept, including ones such as ‘the technology that helps facilitate the practice of law’ Christian Lang, ‘What Is “Legal Tech”?’ ( Medium , 3 November 2018) < https://medium.com/@christianllang/what-is-legal-tech-a6edf69140e7 > accessed 24 September 2020, or ‘the use of technology and software to provide and aid legal services’ ‘What Is Legal Technology And How Is It Changing Our Industry?’ ( The Lawyer Portal , 29 January 2019) < https://www.thelawyerportal.com/blog/what-is-legal-tech-and-how-is-it-changing-industry/ > accessed 24 September 2020.

Paul Gowder, ‘Transformative Legal Technology and the Rule of Law’ [2018] UTLJ < https://www.utpjournals.press/doi/abs/10.3138/utlj.2017-0047 > accessed 22 June 2020.

‘legal, adj. and n.’ OED Online, OUP, March 2021 < www.oed.com/view/Entry/107008 > accessed 25 April 2021.

Scott Shapiro, Legality (Harvard University Press 2011) 3111.

Under this definition, the law can of course take many forms—eg, as an explicit rule, a common law standard, a plan-like norm, etc—however the ‘rule’ is perhaps the modern archetype of law and as such I will at times use ‘legal rules’ below to speak of law. See Antonin Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 56 U Chi L Rev 1175.

Eric Schatzberg, ‘“Technik” Comes to America: Changing Meanings of “Technology” before 1930’ (2006) 47 Tech & Cult 486.

‘technology, n.’ OED Online, OUP, March 2021 < www.oed.com/view/Entry/198469 > accessed 25 April 2021.

Read Bain, ‘Technology and State Government’ (1937) 2 Am Soc Rev 860, 860.

Martin Heidegger, The Question Concerning Technology, and Other Essays (Garland Publishing 1977) 4.

Richard E Susskind, The Future of Law: Facing the Challenges of Information Technology (OUP 1996).

For more on the increasing technologization of the law (as Law 3.0), see Brownsword (n 2); Roger Brownsword and Han Somsen, ‘Law, Innovation and Technology: Fast Forward to 2021’ (2021) 13 Law Innov Technol 1.

James J Gibson, The Ecological Approach to Visual Perception (Houghton Mifflin 1979); Ian Hutchby, ‘Technologies, Texts and Affordances’ (2001) 35 Sociology 441; William W Gaver, ‘Technology Affordances’, Proceedings of the SIGCHI   Conference   on Human   Factors   in   Computing   Systems (ACM 1991).

Gibson ibid.

See eg, Paul M Leonardi, ‘When Does Technology Use Enable Network Change in Organizations? A Comparative Study of Feature Use and Shared Affordances’ (2013) 37 MIS Q 749; Hutchby (n 28).

See eg, Donald A Norman, The Psychology of Everyday Things (Basic Books 1988); Rex Hartson, ‘Cognitive, Physical, Sensory, and Functional Affordances in Interaction Design’ (2003) 22 Behav Info Tech 315.

Hutchby (n 28) 447.

Anthony J Casey and Anthony Niblett, ‘Self-Driving Laws’ (2016) 66 UTLJ 429.

Charles Galunic and Simon Rodan, ‘Resource Recombinations in the Firm: Knowledge Structures and the Potential for Schumpeterian Innovation’ (1998) 19 Strategic Mgmt J 1993; Martin L Weitzman, ‘Recombinant Growth’ (1998) 113 Q J Econ 331.

See eg, McGinnis and Pearce (n 3); Sophia Adams Bhatti, Akber Datoo and Drago Indjic, The LegalTech Book: The Legal Technology Handbook for Investors, Entrepreneurs and FinTech Visionaries (John Wiley & Sons 2020); Micha-Manuel Bues and Emilio Matthaei, ‘LegalTech on the Rise: Technology Changes Legal Work Behaviours, But Does Not Replace Its Profession’, Liquid Legal (Springer 2017); Arruda (n 3).

Raskin (n 6); Cuccuru (n 6).

Sonia K Katyal and Aniket Kesari, ‘Trademark Search, Artificial Intelligence, and the Role of the Private Sector’ (2021) 35 Berkeley Tech L J 501.

See John O McGinnis, Accelerating Democracy: Transforming Governance through Technology (Reprint edition, Princeton University Press 2015).

See Milan Markovic, ‘Rise of the Robot Lawyers’ (2019) 61 Ariz L Rev 325 (arguing that more nuance is needed to address existing deterministic accounts of legal technology’s future).

Sally Wyatt, ‘Technological Determinism Is Dead; Long Live Technological Determinism’ in Edward J Hackett and others (eds), The Handbook of Science and Technology Studies (vol 3, MIT Press 2008).

Gibson (n 28); Gaver (n 28); Norman (n 31).

Hutchby (n 28) 444.

This is similar to how a technology’s institutional or organizational context can have far-reaching effects for its affordances and the way they are or are not adopted by its users. Anne-Laure Fayard and John Weeks, ‘Affordances for Practice’ (2014) 24 Info Org 236.

See Insurance Institute for Highway Safety, ‘Automated Enforcement Laws’ ( IIHS-HLDI Crash Testing and Highway Safety , May 2021) < https://www.iihs.org/topics/red-light-running/automated-enforcement-laws > accessed 3 May 2021.

See eg, 35 USC s 154; Patents Act 1977 (UK) s 25. Laura G Pedraza-Fariña and Ryan Whalen, ‘A Network Theory of Patentability’ (2020) 87 U Chi L Rev 63 (proposing a technologically enabled method of operationalizing innovation).

See eg, 35 USC s 101; Patents Act 1977 (UK) s 1.

See Chaplinsky v State of New Hampshire (1942) 315 US 568 (defining ‘fighting words’ as ‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace’).

See eg, Stephen W Gard, ‘Fighting Words as Free Speech’ (1980) 58 Wash U L Q 531; William C Nevin, ‘Fighting Slurs: Contemporary Fighting Words and the Question of Criminally Punishable Racial Epithets’ (2015–2016) 14 First Amendment L Rev 127.

See Michael A Livermore, ‘Rule by Rules’ in Ryan Whalen (ed), Computational Legal Studies (Edward Elgar Publishing 2020); Aziz Z Huq, ‘A Right to a Human Decision’ (2020) 106 Va L Rev 611.

See eg, Charter of Rights and Freedoms (stipulating a right ‘to be tried within a reasonable time’.).

For an overview of smart contracts, see Raskin (n 6).

Lawrence Zelenak, ‘Complex Tax Legislation in the TurboTax Era’ (2010) 1 Colum J Tax L 91.

Berring, Legal Research and the World of Thinkable Thoughts (n 13) 305.

Berring, Legal Research and Legal Concepts (n 8).

Andrew D Madden, Jared Bryson and Joe Palimi, ‘Information Behavior in Pre-Literate Societies’ in Amanda Spink and Charles Cole (eds), New Directions in Human Information Behavior (Springer Netherlands 2006) < https://doi.org/10.1007/1-4020-3670-1_3 > accessed 10 September 2020.

Posner (n 11).

Cornelia Vismann, Files: Law and Media Technology (Stanford University Press 2008).

‘Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles’ < http://standards.sae.org/ > accessed 2 February 2022.

Eva Fraedrich and others, ‘Autonomous Driving, the Built Environment and Policy Implications’ (2019) 122 Transp Res A Poly Pr 162.

Timothy F Bresnahan and Manuel Trajtenberg, ‘General Purpose Technologies “Engines of Growth”?’ (1995) 65 J Econometrics 83.

It seems likely that a similar dynamic exists within technologies that are used across varying levels of legal generality. Legal technologies will have use for a varied number of practice areas. For instance, one might only be useful for trademark practice, whereas another might be useful to all civil litigation. Those legal technologies that are more ‘generically legal’ by being useful to more practice areas, are more likely to have general implications across the law. Their developers therefore have a greater responsibility to carefully consider the way their technologies may affect the law and legal practice.

Deborah L Rhode, Access to Justice (Oxford University Press 2004); See also William Lucy, ‘Access to Justice and the Rule of Law’ (2020) 40 Oxf J Leg Stud 377 (arguing for a more nuanced appreciation of the relationship between access to justice and the rule of law.).

McGinnis and Pearce (n 3).

Emily S Taylor Poppe, ‘The Future Is Complicated: AI, Apps & Access to Justice Symposium: Lawyering in the Age of Artificial Intelligence’ (2019–2020) 72 Okla L Rev 185.

For discussion on professional implications of legal tech, see Richard Susskind, The End of Lawyers?: Rethinking the Nature of Legal Services (Revised edition, Oxford University Press 2010); but see Markovic (n 39) (arguing that technology is unlikely to undermine the market for professional legal services).

Pasquale (n 4).

See Arti K Rai, ‘Machine Learning at the Patent Office: Lessons for Patents and Administrative Law’ (2018) 104 Iowa L Rev 2617 (arguing that patent offices offer an appropriate proving ground for machine learning in law).

Shapiro (n 20).

Huq (n 49).

Tim Wu, ‘Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems’ (2019) 119 Colum L Rev 2001.

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• UG Dissertations 2016: Consent in the Sexual Offences Act 2003

UG Dissertations 2016: To what extent do the consent provisions of the Sexual Offences Act 2003 provide adequate protection to victims of rape?

By Lok Wai Ho, LLB Law Graduate, 2016

Rape is defined as penile penetration perpetrated against a person without his/her consent. Absence of consent has long been a vital element of rape. However, consent had been undefined until the Sexual Offences Act 2003, for the first time, provided a statutory definition of it. My dissertation examined whether the Act has improved understanding and application of consent in the law of rape, the statutory definition of consent, and how the law operates in practice.

Before the 2003 Act came into force, there was no statutory guidance in relation to both consent in fact and belief in consent. Thus, the meaning of consent was a matter for the common law. In R v Olugboja , the Court of Appeal attempted to provide a partial definition of consent in cases involving the issue of whether the victim had consented or merely submitted to sex. However, the court did not rigidly prescribe what kind of pressure and what degree of pressure would be sufficient to render a person’s agreement to intercourse ‘mere submission’. This flexible approach was intended to protect the varying sexual autonomy of different individuals. However, by leaving wide discretion to the jury and asking them to apply their ‘common sense and knowledge’, the outcome of trials would become uncertain and susceptible to the influence of rape myths. Jurors who fail to understand the complicated legal concept of consent are likely to guide their decisions with rape myths and conventional sexual paradigms. For instance, where the victim has not actively struggled, jurors may think that her silence is just disguised consent.

Having considered these issues, I moved on to consider how the new definition of consent in section 74 of the 2003 Act has played out in practice and whether it has effectively reduced legal uncertainty by providing a definition of consent that could be readily understood by legal practitioners and jurors. Under section 74, a person consents if he/she ‘agrees by choice, and has the freedom and capacity to make that choice’.

The notion of ‘free agreement’ signifies that mutual respect and understanding should form the fundamental basis of sexual relationships, and this should be achieved through communication and agreement. This notion was intended to shift the focus of rape trials from whether the victim resisted to what steps the defendant took to ascertain the mutual agreement. Since rape myths are predominantly concerned with the behaviours of the victim, directing the focus of rape trials away from the victim’s actions might distract the jury from rape myths. However, whether the shift would be evidenced in practice is doubted. Without corroborative evidence of non-agreement, victims still have to give evidence and be cross-examined in rape trials. Defence counsel may argue that the victim’s dress, demeanour and behaviour amounted to non-verbal consent.

‘Freedom’ and ‘choice’ are two other crucial elements of consent under section 74. Unfortunately, there is no further explanation or definition as to when a person lacks the freedom to make a choice. The Court of Appeal did not seize the golden opportunity in R v Jheeta to further clarify the issues. Under the decisions in Jheeta and Kirk , consent is only vitiated when the pressure is so grave that it overrides the complainant’s freedom to choose whether or not to consent. As a result, in cases involving pressure the issue of ‘freedom’ and ‘choice’ hinge on the victim’s subjective state of mind, which means that the main focus of a rape trial continues to rest on the victim.

The main focus of my dissertation was ‘capacity’. This issue has provoked the most controversy, especially in cases where the victim is voluntarily intoxicated. Despite the Home Office’s recommendation to statutorily define ‘capacity’, the proposed definition did not find its way into the 2003 Act. Although the task of clarifying the issues of ‘capacity’ and intoxicated consent is vital, it is difficult to identify the stage where a person’s affirmative sexual behaviour is a mere reflection of his/her intoxication instead of autonomous choice. There is great individuality in this context. The Court of Appeal in R v Bree has remarkably stated that ‘a drunken consent is still consent’, and intoxication does not necessarily render a complainant incapable of granting consent. The question is again left to jury, taking into account the specific facts and circumstances. This judgment is problematic. Firstly, the court referred to the principle applicable to intoxicated offenders – ‘a drunken intent is still intent’. By drawing a close analogy between drunken offenders and drunken victims, voluntary intake of alcohol is portrayed as a culpable act and the victim-blaming culture in society may be exacerbated. Secondly, the court’s refusal to establish a certain level of alcohol consumption that would negate consent has effectively reintroduced the flexible yet problematic Olugboja approach into the law. Jurors are again given wide discretion. Numerous empirical studies have suggested that the public (and thus arguably juries) are generally reluctant to believe in the account of a complainant who alleges being raped while voluntarily intoxicated.

To conclude, the s.74 definition fails to clarify the vague concept of ‘capacity’ and it leaves too much discretion to jurors. Further definition or guidance is definitely desirable. Nonetheless, mere amendment of statutory language cannot address the issues caused by prevalent rape myths. Societal education alongside legal reform is necessary to directly challenge the misperceptions outside the courtroom.