Law as a Human Construct and Why That Matters

“Not only are the professions themselves a human construct, therefore, but so too is the organization of the knowledge that they dispense.” Richard Susskind and Daniel Susskind – The Future of The Professions

The knowledge that the legal profession dispenses comes mostly from case law. Case law springs from precedent, creating a body of writing obsessed with the past. This obsession with the past obscures the human author and makes the law appear pre-ordained and sacrosanct rather than a human construct.

Professor Elizabeth Judge explains in “Precedent and the Individual Opinion: Judges Judging Judgments and the Creation of the Law Canon”, the act of “authorizing precedent… deflect[s] attention away from the judicial acts of authoring the individual opinion”. By strategically excerpting past cases, “a new case is no longer Venus rising from a shell – it is a child with a precedential parent and that parent has been created by the present’s reworking of the past.” “The present’s reworking of the past” makes the law appear inevitable, and I would add that it makes the law appear almost God given rather than man-made.

Remembering that legal knowledge is a human construct enables us to re-imagine the legal world. It empowers us to shape the future of our profession, an endeavor more important than ever before.

In Tomorrow’s Lawyers, Richard Susskind argues that the “legal world will change more radically over the next two decades than over the last two centuries.” Susskind cites technology as the driver of this change, and in his latest book The Future of the Professions, he proclaims that “we are on the brink of a period of fundamental and irreversible change in the way that the expertise of these specialists [professionals] is made available in society.”

How do we arrive at a positive change?

To arrive at a positive change we must escape old ideas.

The difficulty lies, not in the new ideas, but in escaping from the old ones, which ramify, for those brought up as most of us have been, into every corner of our minds. (John Maynard Keynes)

But which old ideas should we escape from? And which principles should we use in building the future of our profession?

Starting from the proposition that laws are man-made allows us to challenge all old ideas, from the implicit principles that underlie the law to the history of the law’s formation and to the ratio decidendis in the case law. By carefully re-examining legal knowledge, we can begin to positively guide the “fundamental and irreversible” change that our profession is about to undergo.