My children occasionally ask: “What do lawyers do?”. I always struggle to find an answer. Not because there isn’t one; because there are many.

Whenever my mind wanders towards questions like this, I’m reminded of one of my favourite quotes:

“The lawyer is constantly engaged in fitting into some workable design the relations of men to one another. His task as a social architect can demand creative imagination of a high order.”

Lon Fuller ‘The Role of Contract in the Ordering Processes of Society Generally’ *

I love this. It speaks to all sorts of truths about law and lawyers. But in particular, it shines a light on what, at heart, they are really all about. People. And more specifically, how to manage the unending truth that people are terrible at getting on with one another (and their planet) and need to find ways of handling that fact.

As Fuller explains in his essay, there are different ways of achieving social order. It can be through laws, created and imposed by those with authority (top down). It can be through contracts agreed between individuals (horizontal). It may involve enforcing rights through the courts; or it could include voluntary processes like mediation or arbitration. Whatever form it takes these are all, as Fuller puts it, ways of “fitting into some workable design the relations of [people] to one another”. And to the extent that lawyers have, for centuries, been involved in designing the processes and procedures to make these workable, they have been involved as creative architects of a system to keep our relationships on track.

These designs may not be creative in the conventional sense. It doesn’t look like art. It looks like process. It looks like rules. It looks like evidence and forms and procedures and documents and governance and ways of finding truth and balancing competing interests. It (too) often looks like lots and lots of words. It can sometimes feel boring. But it is always important.

In all this, the role of designing our positive social infrastructure — the tools and processes to manage our relationships — can be lost in the day-to-day realities of modern lawyering. Lawyers may not think of themselves as architects in the world in which they operate. Perhaps they more often feel like labourers, working ferociously to implement someone else’s design. Doers not designers.

Which is not a criticism. In fact, it’s inherent in the lawyer’s job, which requires them to get their head down and work (very) hard to help clients with immediate and important issues. This can leave little time or energy to think about the macro. To consider how the system works at large for those that use it. To focus on the architecture, not the bricks.

And to put it bluntly, for well-paid lawyers doing commercial or corporate work (like me), there can be little incentive to start reimaging that there might be even better ways of supporting how people (clients) can relate to one another.

This tension between the ‘micro’ and the ‘macro’ runs deep for lawyers. It is even reflected in their core professional obligations. In England & Wales, for example, solicitors are required to act in the best interest of each client (micro), as well as to protect the wider rule of law and the administration of justice (macro). It is well understood that these duties can occasionally come into conflict. What is sometimes less well understood is that the primary obligation — the one that should always win in the end — is the macro duty to uphold the rule of law and the proper administration of justice.

All of which is another way of saying that lawyers have always played an important role in a bigger plot. Even when they are deeply focused on working for individual clients, they play their part in a system that, by design, asks them to help deliver fairer outcomes for everyone by providing proper representation for someone.

But working hard for individual clients should never stop lawyers lifting their heads and looking up. In their longstanding role as the architects of how many things are, lawyers must continue to use “creative imagination” to see what could be.

Or to put this another way, us lawyers should constantly challenge ourselves to better serve our clients by improving things for all clients. It’s where the ‘micro’ and the ‘macro’ meet. Whilst some improvements may come too late for today’s clients, without it, can we really say we are doing our best for tomorrow’s?

PostScript

I wrote this blog a few years back, but have never shared it because, in my head, it was always the first half of a longer piece that I’ve struggled to finish (and partly because I didn’t want it to be left hanging on an unintentionally sanctimonious note). For now, here’s the headline version of what I thought I might say.

With topics like this, it’s easy to get drawn into ubiquitous talk of legal innovation and legal technology. It’s relevant, but my blog is intentionally not about that.

Having said that, the whole ‘innovation and technology’ trend does illustrate a few interesting points:

1. Embracing a more active role as creative social architects (for the benefit of all) does not mean lawyers doing it alone. To state the obvious, lawyers are not software developers, UX designers or [insert other roles here]. Collaboration is key; between individuals, between firms, but most importantly, with other skills, industries and professions.

2. Lawyers can support ‘innovation and technology’ by being facilitators and enablers of others. This often means doing the non-technology work that makes technology work. That could include supporting better governance, or creating contracts and legal information in structured, open and accessible ways that can help new technologies realise the promises that have been made for them. Lawyers actively contributing what lawyers can (or should) do best.

3. Engaging with those outside ‘the law’ is not about delegating the problem. Lawyers do not have exclusive ownership of improving our legal and social infrastructure (obviously), but I do think they have a leadership role to play — and it’s one they should embrace, not outsource.

*Fuller, L. (1981) The Principles of Social Order, Durham, N.C.: Duke University Press