law school research paper outline

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Outlining and Drafting

An outline is not a “data dump.” Creating a document in which you can store interesting facts, figures, tables, charts, etc., is worthwhile, as you may decide to incorporate this information into your paper. However, this document is not an outline. Your outline should contain your thoughts and impressions as you conduct your research and get a better idea of the overall structure that your paper will take. You are beginning to synthesize your research when you consider how to group topics and in what order you will present topics in your paper. Ideally, your outline can be filled in to become the first draft of your paper!

While working on the first draft of your paper, do not worry about the common writing concerns you can find listed under the tab Revising, Editing, Proofreading (passive voice, ambiguous pronouns, dangling participles, etc.) These issues appear under the tab Revising, Editing, and Proofreading for a reason: deal with these concerns later! At the drafting stage, focus on getting your ideas on paper. These ideas do not need to be expressed elegantly or eloquently; they just need to be expressed! Worrying about writing style when you should be focused only on content will slow you down, lead to unnecessary self-censorship, and may distract you from putting on paper the full collection of concepts that you intend to address. After you have translated your ideas into words on the page, then you can begin thinking about revising, editing, and proofreading your writing project.

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• Writing a Student Note
• Writing Process

The Writing Process

Typical outline of a note.

• Introduction : The Introduction should include a description of the problem, a thesis statement, and a roadmap of the argument to follow.
• Part I : This section should be used to set forth the background information on which the later analysis in your Note will depend. It should be a general and broad review of the important issues relevant to your topic that educates your readers about everything they must know in order to understand your Note. When writing this section, be sure to use language that a reader who is not familiar with your Note topic can easily understand.
• Part II : This section should examine the major cases and statutes that your Note will be analyzing. It will contain the main portion of your analysis of how the law stands. For example, if your topic focuses on a circuit split, Part II is where you would explain the conflicting holdings and rationales. You may also choose to discuss what other commentators have said about your topic and these cases.
• Part III : This section is where you will contribute your own analysis of and views on the topic. You will say why you feel the cases/commentary you analyzed are wrong and what should be done instead. In the case of a circuit split, say which side is better and why. Part III is where you should place your original thoughts and contributions, along with the conclusion of your Note.
• Conclusion : The Conclusion should briefly restate what you have already said. You should not focus too much on this section when preparing this Prospectus.

Tips on Legal Writing—Patrick Garlinger ’09

While some may have a greater facility for language than others, there is nothing natural about good writing. It comes from practice—and from rewriting.

Advice on writing is easily dispensed but difficult to follow. This is largely because writing requires enormous discipline. The following are six basic principles that provide a structure for the writing process. They are not specific to academic writing or to legal writing in particular but may be especially helpful in a law school environment where time to write is a precious commodity. Over the years these guidelines have given me the discipline to start and finish, among other academic texts, a student Note.

Writing is like a muscle: Exercise it regularly.

For most students, the Note is the first experience with publishable academic writing. In college, all-nighters might produce passable term papers, but that approach certainly won’t do here. Nor will exam writing really prepare you for legal academic writing. Instead, good academic writing requires regular practice. Law school does little to assist here, since all too often the periods for working on one’s Note are isolated and scattered due to the time constraints imposed by classes, journal work, clinics, and extra-curricular activities. You may pursue a Directed Research as a way to carve out a block of time dedicated to the note or, alternately, write your note to fulfill the writing requirement of a seminar. Winter break is also a great time to make substantial progress on a first draft. Either way, you should try to work steadily on the Note so as to avoid losing momentum and focus.

Good writing does not come naturally: Read good writers.

While some may have a greater facility for language than others, there is nothing natural about good writing. It comes from practice—and from rewriting. To practice without models of good writing is, however, pointless. You must read other legal writers carefully, for both their analysis and their style. As a starting point, find a few sources that inspire your intellectual juices and, over time, keep adding to the list. Read and analyze how those writers introduce their topic and communicate their thesis. Look carefully at the architecture of their argument, their lexicon and sentence structure. In short, read them as both legal scholars and writers. Emulate (but do not copy, of course). Additionally, you may benefit from style guides that provide specific guidelines for legal writing (e.g., Bryan Garner’s Legal Writing in Plain English ). Avoid legalese. A student note should not read like a law school exam or a brief.

Know your thesis: Say it in a single sentence.

One of the most difficult tasks facing a student writer is finding a topic and narrowing the thesis. The student Note is rather short—and because you need to provide background information for your generalist readers, there is little room for sweeping analysis. As such, you should target a very discrete issue. Yet, in my experience, articulating, not finding, the topic is the most difficult task facing a student writer.

You should be able to state your thesis in one or two sentences at most. Anything longer suggests that the topic too unwieldy for a student note or, more probably, that the writer still has not fully understood the nature of the project. Pith not protraction should be your goal. If you can state your thesis in a single sentence, that clarity and concision will guide you throughout the rest of the writing process, helping to avoid unfortunate meanderings or excess material that is not essential to the argument. Simply put, if you cannot summarize your note in one or two sentences, you don’t have a thesis.

Know your writing mode: Respect your rhythm.

Everyone has a writing mode—when you are most inclined to write and how you go about composing. Some of us are “whittlers.” We write and write and write. Later, we will edit and “whittle” away the excess. We refine our ideas in the process of writing, often repeating the same thoughts in multiple guises until we hit on just the right formulation. Others are “refiners” who write just a few sentences or a paragraph and then revise and polish it to perfection before moving on. Similarly, you may have a natural rhythm when it comes to the time of day when your writing seems to flow most easily. A friend of mine prefers to write in the mornings before she has any tea or coffee, using what I call the “carrot” method of motivation.

Respect your writing style; recognizing how you work is important to maximizing it. It may prove futile to try to write against your natural rhythm. If I try to refine as I write, or if I write in the middle of the afternoon, I find myself producing very little.

Everyone suffers from writer’s block: Switch gears or put it down and rest.

Even when you know your writing mode, writing can be a difficult process; your energy comes in fits and spurts, your love for your topic waxes and wanes. When you hit a road block, change it up. Sometimes very simple changes can give you a boost. When I find myself struggling, I switch fonts, or change the spacing from single to double. Often the effect is just to defamiliarize the text, so you see it differently. If writer’s block still persists and the words elude you, take a break. Sometimes a day or two can make a difference in how the argument reads to you—the logical leaps, grammatical errors or infelicitous word choices will leap off the page.

There is a danger, though, in always caving at the first resistance to writing. Writing is hard work. It requires endurance and persistence. Force yourself to try to write for at least 10-15 minutes. A mentor was fond of saying, “Screw your a-- to the chair and don’t get up.” Like exercise, sometimes the thought of writing is more painful than the actual practice, and once you start, you find it comes more easily than anticipated.

Never fall in love with your own writing: Edit with a vengeance.

This piece of advice is owed to a former mentor who repeated it as a mantra. Whether you are a whittler, a refiner, or somewhere in between, we often fall in love with our own prose, unable to let go of a snappy sentence or an ingenious turn of phrase. Editing is the key to good writing, however, and you cannot be afraid to leave material on the cutting room floor.

Place yourself in the reader’s position and ask yourself if the sentence/paragraph/section is really essential. Because we often think we know what our words mean, we fail to realize that our readers may not find our thoughts to be so crystalline. Defamiliarize your own writing by putting the text away or it may be helpful to print out and proofread in hard copy; words will look different on the page than on the computer screen. Finally, avoid the fetish of the footnote as the last refuge for material that should be cut. It is cliché but true that less is often more.

Additional Resources

• Writing Workshop Video : A September 2008 presentation by Vice Dean Barry Friedman, Professor Florencia Marotta-Wurgler, Patrick Garlinger, ’09, and Ilana Harmati, ’10, on student legal writing.
• Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers (2003)
• The Bluebook : the guide to legal citation to use in writing and editing legal scholarship.

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Directed Research Projects

• Getting Started
• Preparing to Research
• The Research Process

Structuring Your Paper

Writing tips, writing resources.

• Checking your Sources
• Getting it Published

There is no strict structure to writing a legal research paper.  Unlike legal memos written for class or documents prepared for court proceedings that require formatted headings such as "Question Presented," "Statement of Facts," etc., legal research papers are not required to contain prescribed content or abide by a particular structure.

That said, below is a typical approach to organizing the content of your research project.

• Introduction (clear statement of your thesis)
• Background information (what is the existing law, if any)
• The problem (explain why the status quo does't work)
• Recommendation for change (what can be done to improve the field and how)
• Conclusion (tie back to your thesis)

If you have any questions about formatting your research project, you should seek advice from your faculty advisor.  Below are some basic guidelines, but keep in mind formatting requirements set forth by your faculty advisor will always supersede instructions provided here.

Generally, directed research papers are formatted as follows:

• 12-point font (Times New Roman or similar)
• Double-spaced lines
• One-inch margins on both sides, top, and bottom
• 10-point font for footnotes (same font as text)
• Bluebook style and rules for all footnotes citations
• Roman numerals and/or letter headings and subheadings (same font as text but bolded and/or underlined)
• Numbered pages in the footer (same font as text)

Table of Contents

Although not required (unless your faculty advisor states otherwise), a table of contents can be helpful to provide your reader with an overview of your research paper and direct them to certain sections.  Your table of contents should mirror your headings and subheadings.  Below is an example of a table of contents.

When to Cite

You must include a citation every time you refer to, paraphrase, or quote a law, case, or another's work.  Most of your sentences will include a citation.  Additionally, when you cite to a law, always cite to the primary source.

How to Cite

The Bluebook, formally titled  The Bluebook: A Uniform System of Citation , is the style manual for citing to legal documents within the United States.  You should use the Bluebook for all your citations in your legal paper.  The white page section contain the citation rules for legal academic publications.

Writing a Strong Introduction

Your introduction is arguably the most important section of your paper because many people will decide to continue reading based on the introduction.  It must grab the reader's attention and explain why what you are writing about is important.

Essentially, the reader should be able to skim the rest of your paper after reading your introduction and have a good understanding of its layout and arguments.  A good introduction should present the theme of the paper in a succinct manner while providing an overview of your paper.

Generally, a strong introduction will

• State the legal problem/issue;
• Describe why it is important and how your paper contributes to the discussion;
• Provide a road map of your paper; and
• State your conclusion.

Being Objective & Subjective

After your introduction, you should discuss background information on the issue you chose to write about.  This should be an objective overview of the relevant facts and existing law.  Your objective background information section should not be an all encompassing.  Keep this portion of your paper focused on the essential law and relevant facts that support your recommendation for change. 

The bulk of your paper lays in your discussion of the problem and recommendation for change.  This is the subjective portion of your paper.  In this section you should extract the relevant objective material to support your subjective analysis.

Writing a Strong Conclusion

Your conclusion should restate your thesis, summarize your major points, and remind the reader why the issue you've chosen is important.  The conclusion should essentially reword your introduction in a condensed fashion. 

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Researching and Writing a Law Review Note or Seminar Paper: Outline & Guide Information

• Outline & Guide Information
• Research Tips
• Resources You Can Use for Topic Selection
• Advice for Preemption & Research
• Secondary & Primary Sources for Preemption & Research
• Citation Management Tools
• Law Library Logistics
• Citation Manuals
• Hard-to-Find and Hard-to-Cite-Sources
• Bluebook Guides
• Advice: Choosing Journals, Submission Process, Evaluating Offers, Retaining Author Rights
• Choosing Journals Resources
• Submission Services & Information for NYU Students
• Legal Writing Competitions

Guide Outline

The links below can be used to navigate to various tabs in this guide. Several individual pages may be found beneath the main tabs.

• Outline & Guide Information
• Selecting a Topic
• Preemption & Research Sources
• Tools to Organize Research
• Writing Guides
• Legal Writing Contests

For a video guide on choosing Note and Paper Topics, see here  (NYU login required).

Scope of Guide & Advisory Note

This guide is selective and not comprehensive and should be used as a starting point for further research.

Inclusion of a link to a website or to other material in this research guide should not be interpreted as an endorsement of the accuracy or currency of the material on the website. Moreover, no information in this research guide should be interpreted as legal advice.

Additional assistance can be obtained at the Reference desk .

This guide provides links to a variety of databases, several of which are limited to NYU Law faculty and students. Information for NYU Law students and faculty on obtaining passwords for Westlaw, Lexis Advance and Bloomberg is available here . 

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• Last Updated: Apr 17, 2024 10:14 AM
• URL: https://nyulaw.libguides.com/lawreviewarticle

Writing a law school research paper or law review note

• Books and articles

Examples of student papers

The three documents listed below were written by 2Ls for the Indiana International & Comparative Law Review. If you are writing for a seminar or an independent study, your parameters might be a little different, but these serve as good examples of general expectations for what can satisfy the advanced writing requirement.  

• Ancient Water Law in a Modern Crisis: An Analysis of Australian Water Law Reform in the United States Context
• Seizing the Initiative on Sexual Assault in the United States Military: The Way Forward
• Striking a Balance: Extending Minimum Rights to U.S. Gig Economy Workers Based on E.U. Directive 2019/1153 on Transparent and Predictable Working Conditions
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• Last Updated: Jul 29, 2022 11:08 AM
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5 Key Steps to Writing an Effective Law Research Paper

Written by admin

Updated on: April 7, 2024

Table of Contents

5 Key Steps to Writing an Effective Law Research Paper: Our Legal World

Writing a law research paper is much different and complex than crafting a research paper for other fields. That’s because it involves methodological research, which further requires familiarizing yourself with the current legal precedents, principles, and regulations. So, due to such complexities, students often get overwhelmed when asked to write a law research paper. And if you happen to know any such students, this blog post is for them.

Here, we’ll simplify the art of writing a persuasive research paper for law students with the help of 5 key steps. So, without prolonging this intro, let’s get to those steps.

1.    Select a Relevant and Narrow Topic

Whether you want to write a research paper for law or any other field, the first step you need to perform is to select a relevant topic. This step is paramount to writing an effective research paper because it will help you form the foundation for a compelling and well-researched paper. Therefore, the earlier you complete it, the better it will be for the overall quality of your law research paper.

But choosing a topic for a law research paper is different from selecting a topic for any other writing form. That’s because broader topics are challenging to cover. Therefore, your chosen topic should be specific and relevant to your interest. For instance, you can narrow your research for a topic to a particular point that aligns with your interest or has significance in law.

Sometimes, colleges or universities assign the research paper’s topic to students. So, if this situation represents your use case, all you need to do is pick a topic according to your interest from the assigned ones.

2.    Perform a Thorough but Methodological Research

Like other writing forms and research papers, thorough research is essential to write an effective law research paper. In fact, it’s the backbone of a research paper. Therefore, you should perform it, which is the second step in this guide.

But unlike other writing forms, the research for writing a law paper must be methodological. So, how can you conduct such research?

Well, existing literature can be a great starting point for the research phase of a law research paper. But other than that, you can use a plethora of sources, such as

• Legal databases.
• Scholarly articles.

Thus, looking for relevant data should be your priority while exploring the above-mentioned resources. But other than that, you should also familiarize yourself with the current legal precedents, principles, and regulations. Doing so will help you collect compelling evidence, arguments, and counterarguments, ultimately supporting your research paper and providing an overall comprehensive analysis.

3.    Create a Well-Thought-Out Outline

Suppose you have collected a lot of information and read all the existing written material regarding your research topic. In that case, you might crown your research paper with a lot of information and get carried away. Therefore, to cope with such a situation, we recommend creating a detailed outline, which is the third step of this guide.

Creating an outline and dividing your research paper into logical sections and subsections will help you formulate a coherent and organized structure. So, do that because this way, you can convey your ideas effectively. But remember that each section and subsection you create should relate to your research question and support your thesis.

Thus, once you’ve maintained a clear flow of ideas through the logical sections and subsections, it will ultimately improve your paper’s readability, which means readers can follow your point quickly.

4. Write in a Clear and Precise Legal Language

Documents related to law are famous for their complex and intricate language. But since a law research paper doesn’t intend to educate people having a legal background only, understanding convoluted language can be challenging for readers. And this situation is especially valid when you have to discuss arguments or concepts that are intricate and nuanced. To cater to this, we recommend writing the law research paper in clear and precise language.

Whether you are developing a solid thesis statement or writing your research paper’s introduction, body, and conclusion sections, it is essential to communicate the ideas clearly. And to do that, first of all, you must avoid using complex sentences and wording. Doing so will make your law research paper accessible to the experts and novices in the field.

But if writing content in a simple and easy-to-read manner is challenging for you, you can reword your complex content with any AI-based rephrase tool . Such tools use advanced NLP and AI technologies to paraphrase sentences and simplify their complexities in no time. This will ultimately save you time in simplifying the research paper manually and improves the overall quality of the paper as well.

5.    Don’t Forget to Revise, Edit and Polish Your Work

You’ve got the research and outline, which means, by now, you will have crafted a first draft of your research paper. And if you have, then it’s time to polish that draft by revising and editing it. But how can you do that?

Well, you can perform the following checks:

• Carefully proofread your paper and look for formatting mistakes.
• Besides formatting, don’t forget to check for grammar, punctuation, or spelling errors. But if you need any assistance, we recommend using an AI writing assistant.
• Your research paper will have a plethora of arguments. So, make sure that every one of them flows logically and cohesively throughout your research paper. And also, analyze whether you’ve supported every idea with relevant details.
• The first draft often contains repetitions of ideas. Therefore, you must trim them to polish your work.
• Perform a check for plagiarism on the content of your research paper.
• Remember to cite every source you’ve assisted in formulating your research paper’s data.
• Remember to use the same citation style throughout the research paper.

Thus, by implementing these tips, you can easily polish your research paper and prepare it for the final submission.

Writing a law research paper requires dedication, meticulous research, and thoughtful organization. However, with the proper guideline, you can enhance your chances of producing a compelling and impactful paper.

So, remember to choose a relevant and focused topic, conduct thorough research, structure your paper effectively, and meticulously revise and edit your work. Thus, with practice and persistence, you can master the art of writing an outstanding law research paper that engages readers and contributes to the legal discourse.

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How do I create a law school outline? (an in-depth guide)

Writing your law school outlines (and starting early in the semester!) is one of the most important things you can do to maximize your chances of graduating at the top of your class. Many students struggle with outlining because they do not know where to begin.

Below is a step-by-step process on how to write a law school outline. To do so, you will need to gather your materials together. We recommend you have the following on hand:

• Class notes
• Any supplements you use

We also recommend you have a cup of coffee in hand since outlining can be grueling! (But it can also be fun!)

Note: if you haven’t yet downloaded our   free guide on how to succeed in law school, do so here !

Even better, join our   FREE law school prep course here !

How to write a law school outline—five  key principles

Before we even discuss the in-depth guide on how to write a law school outline, we want to cover these five key principles that you should not lose sight of!

1. Outline early on in the semester

If the class has begun and you haven’t started outlining, start now! There is no reason to put it off. The sooner you have your outline, the sooner you can start to review it.

2. Your class notes are your most important resource

Remember that your professor writes the exam. So, whatever he or she says in class is gold! That is more important than anything you find in a supplement, casebook, etc. Always use your class notes as your primary resource. Supplements can be used to fill in the gaps where your class notes are unclear or when you do not understand something.

3. Make your own outline

The process of outlining helps you more than anything else and it will be much easier for you to learn an outline you made. It will be tailored to your exact learning style.

4. Do not type up your class notes and call it your “outline”

That is a rookie mistake! Class notes are important but they will not be nearly well-organized enough to be used as an outline.

5. Organize your outline in a way that makes sense

We discuss this below!

How to write a law school outline: an in-depth guide

1. First, figure out the overall structure of your outline by looking at your syllabus

For your Contracts course, for example, you may talk about contract formation first (offer, acceptance, consideration). Then, you may talk about defenses (illegality, insanity), and the Statute of Frauds. You may also talk about remedies (for both the UCC and common law).

Look at the main headings in your syllabus to see the overall organization of your class. If your professor does not have a detailed syllabus, check your casebook to see the main headings that appear above the cases you are assigned.

A bird’s-eye view of your outline might look something like this (this is admittedly a bit abbreviated):

1. Contract formation

a. Offer b. Acceptance c. Consideration

2. Defenses

a. Illegality b. Insanity

3. Statute of Frauds 4. Remedies

a. Common law b. UCC

2. Start with the first issue (e.g., offer, above) and find the rules to go with each issue

The absolute best resource to find the rule is your class notes. (Your professor writes the exam so it makes sense to know the rules they want you to know!) Your professor should either state the rule directly or point it out in a statute, restatement section, or case during class. Take very good notes on whatever your professor says the rules are.

For example, let’s just take offer, above. Here are some of the rules that go with it:

i. Rule: an offer is a manifestation of intent to enter into a contract. ii. Elements: An offer requires both (1) intent and (2) specific terms. The specific terms are price, quantity, and identity of the offeree. It also requires intent from the perspective of a reasonable person.

What if you leave class not knowing what the rule is? Sometimes professors can be very vague and you may leave class not knowing what the black letter law is! If this is the case, first start by looking at your class notes—after all, your professor likely referenced a statute or case that had the rule in it. (If so, then get your rule statement from the statute or case). You may have to start to train yourself to really start listening for this in class! If you still cannot find it, look up the rule in a supplement (like an Examples & Explanations book or the Restatement, etc., depending on your class).

3. Break down the rules into manageable parts

Rather than having one long sentence for a rule, try to divide it or break it down into parts. This makes it much easier to learn when you are reviewing your outline. We also think it is a good idea to format your outline to draw attention to the rules. (We underlined the elements below, but some people like to use one specific color for the rules—do whatever you like best!)

For example, instead of writing what is above you could break it down as follows:

i. Rule: an offer is a manifestation of intent to enter into a contract.

ii. Elements: An offer requires both

(1) intent and

1. Look at this from the position of a reasonable person.

(2) specific terms . The specific terms are

2. quantity , and

3. identity of the offeree .

Wouldn’t you much rather look at an outline that is neatly separated into its logical elements rather than a few long sentences (like under note 2 above)?

4. Add cases (or at least the rules from cases)!

If you take our advice and outline early, you will have plenty of time to add the important cases that you discuss in class. (If you start outlining late, it is probably a better idea to still include all the landmark cases—but for the other cases, just make sure you have the rule.)

Do not include long descriptions of the cases. Do not include case briefs for each case! Try to summarize a case in one or two sentences. Write the summary in your own words. It does not have to be eloquent or well-written!

You can use your class notes, casebook, or a commercial briefs book to find the rules. We recommend that you use your class notes (it is your best resource) and you can use your casebook or any commercial briefs as a backup.

We’ve added in the cases, in orange below.

2. Fairmount Glass Works v. Crunden: Even if one or more terms (below) are left open, a contract does not fail for indefiniteness if the parties intended to make a contract.

a. Harvey v. Facey: Saying “lowest price you’ll accept” is not an offer. Need the price .

a. Owen v. Tunison: if offeree is not identified (in this case, a land sale contract), there is no offer.

b. Lefkowitz: Coat case. This was an offer because all terms were identified (first person in store gets coat for $1).

5. Use hypothetical examples or important points your professor made in class to illustrate a rule

It is crucial to include hypothetical examples and important points that the professor makes in class in your outline because they show you how the law is applied to facts. Further, your professor is likely to test these points. You can see hypothetical examples and points added in red font below.

i. Hypo: “Will you sell us the property?” Is that an offer? No, a question cannot be an offer. No price term either!

a. “We are authorized to offer you all of the fine salt you order.” Is that an offer? No. Because no quantity. Just saying “offer” doesn’t make it one.

i. What makes an ad an offer? When there is nothing left to negotiate!

6. Identify and draw attention to the minority rules, exceptions to the rules, and the parts of law that are unsettled

Outline the ambiguities, contradictions, and exceptions in the law. If there is a minority rule or an exception to the rule, state it. If you are assigned two cases that contradict each other, include both. We don’t have an example for this portion of the outline, but the point is DO NOT avoid gray areas or ambiguities—rather, draw attention to them! These are commonly tested on exams!

Once you have your outline made, constantly review your outline! Go back and repeatedly review it so you can memorize it. It is best to make it a habit to repeatedly review your outline (however you learn best!). If you are an auditory learner, cover up your outline and try to say it out loud. If you are more visual—which most students are—then it may be more helpful to cover up portions of your outline and see if you can rewrite the elements. We have more tips for learning your law school outline  later in this guide!

Looking for a unique way to outline? 

We are very proud of our new  law school study aids , which include visually appealing outlines! (Please see a few samples of outline pages below.) We recommend students incorporate images from our outlines into their own outlines. These images make your outlines easy to understand and learn!

Our law school study aids are available on a monthly basis and also include over 1,500 flashcards, hundreds of practice problems written by top professors, and multiple-choice questions. You can try it for free today!

Torts sample:

Constitutional Law sample: 

Contracts sample:

Check out this recorded webinar on how to write a law school outline.

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Library electronic resources outage May 29th and 30th

Between 9:00 PM EST on Saturday, May 29th and 9:00 PM EST on Sunday, May 30th users will not be able to access resources through the Law Library’s Catalog, the Law Library’s Database List, the Law Library’s Frequently Used Databases List, or the Law Library’s Research Guides. Users can still access databases that require an individual user account (ex. Westlaw, LexisNexis, and Bloomberg Law), or databases listed on the Main Library’s A-Z Database List.

• Georgetown Law Library
• Research Process

Research Strategies for Seminar Papers

• Introduction
• STEP 1: Select a Topic
• STEP 2: Preemption Check
• STEP 3: Background Research
• STEP 4: Focused Research
• Additional Resources for Scholarly Writing

Law Library Reference Department

Reference Desk : Atrium, 2nd (Main) Floor (202) 662-9140 Request a Research Consultation  

Update history.

Updated 12/2022 (ROJ) Updated 7/2023 (ROJ) Links 4/2024 (ROJ)

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Research is a Fundamental Component of the Seminar Paper

Per the Georgetown Law Student Handbook: "The upperclass legal writing requirement builds upon the first year Legal Practice course by developing students ability to independently engage in a sustained, in-depth research  [emphasis added] and writing project for a legal audience. Working on the paper challenges students to hone their research skills, engage in complex legal analysis, develop and test a thesis or argument, gain mastery over a specific topic, and enhance the clarity and precision of their writing all components of the art of legal writing that are valued in practice regardless of the particular field that the student might pursue."

The seminar paper will require you to find a large amount of information and use many unfamiliar resources. You will also conduct an original analysis using the information you've found and cite everything you've used with extensive footnotes.

Tips For Making your Research Effective and Efficient

STAY FOCUSED ON THE TASK. Efficiency is a crucial aspect of successful research for a seminar paper. As you research, it is easy to become distracted by off-topic or tangential materials. To maintain efficiency and stay on task, note potentially useful materials in your research log and, when available, download the PDF.

PLAN AHEAD. A seminar paper requires comprehensive, time-consuming research and cannot be completed in a couple of days or over a weekend. Additional research is often needed after discovering weaknesses while outlining and drafting the paper. Effective researchers budget sufficient time to ensure access to materials using  interlibrary loan  or  consortium loan  since receiving physical items through these services can take a few days, a week, or more. 

KEEP TRACK OF YOUR RESEARCH.  Active organization of research materials and tracking research tasks creates an efficient research process. This can be achieved through multiple technques:

• Use a research log.  Effective research logs must contain the following information to be helpful: a brief description of the material, a complete citation or a stable URL, and a brief note on its usefulness. Creating a log using Excel, Google Sheets, or Apple Numbers has the added benefits of using ctrl+F/cmd+F to quickly find items in the log by keyword and sorting options. 
• Use the internal tools of the databases.  Identify the tools within databases that assist with saving your research and use them. Look for folders, copy text with citation, and links. These tools are often at the top of the page in a website, or along the right or left side of the page. 
• Save or capture the citation information for everything you use.  Since your paper requires  complete and comprehensive citations , you must keep a record of everything you read. A research log is an easy and efficient method of tracking all materials you've read or consulted. An effective research log must include sufficient citation information to help you find an item again: the authors' name, title, publisher, published date, volume number, page numbers, and, when applicable, database information or a stable URL.

We're Here to Help!

The Law Library reference librarians aim to ensure your research is efficient, effective, and complete.

We offer a  one-on-one research consultation service  during which we review the resources for your specific topic and/or information need. These consultations are by appointment only and require some lead time for the librarian to prepare for your topic.

The Reference Desk is a great place to start for quick questions or questions about library services and resources! Please see our  Reference Desk hours  to determine when a reference librarian is on duty. You can also reach us by  chat  or  email .

Additional Resource

Requirements and Criteria - Seminar Papers 

Your professor will give you details on the requirements for your paper. The general requirements for the upperclass Legal Writing Requirement are published in the Student Handbook of Academic Policies by the Registrar's Office.

Publishing Your Seminar Paper

You may want to consider submitting your seminar paper for publication. See the Law Library's guide on  publishing articles in law reviews and journals  for information on the process and resources. 

• Next: STEP 1: Select a Topic >>
• © Georgetown University Law Library. These guides may be used for educational purposes, as long as proper credit is given. These guides may not be sold. Any comments, suggestions, or requests to republish or adapt a guide should be submitted using the Research Guides Comments form . Proper credit includes the statement: Written by, or adapted from, Georgetown Law Library (current as of .....).
• Last Updated: Apr 18, 2024 10:34 AM
• URL: https://guides.ll.georgetown.edu/seminar_papers

Seminar Paper Research

• Topic Selection
• Preemption Checking
• Guides to Academic Legal Writing
• Interdisciplinary Research
• Evaluating Authority
• Writing the Abstract
• Problems in Constitutional Law Seminar Resources
• Food Law and Policy
• Gender and Criminal Justice Resources
• Equality and Sports

Tips for Writing an Abstract

The abstract is a succinct description of your paper, and the first thing after your title that people read when they see your paper. Try to make it capture the reader's interest.

Outline of Abstract:

Paragraph 1

• Sentence 1: One short sentence, that uses active verbs and states the current state of things on your topic.
• Sentence 2: Describe the problem with the situation described in sentence one, possibly including a worst-case-scenario for what will happen if things continue in their current state.
• Sentence 3: In one sentence, describe your entire paper--what needs to be done to correct the problem from Sentence 1 and avoid the disaster from Sentence 2?
• Sentence 4: What has been written about this? If there is a common consensus among legal scholars, what is it? (Note any major scholars who espouse this vision).
• Sentence 5: What are those arguments missing?

Paragraph 2 :

• Sentence 1-3: How would you do it differently? Do you have a theoretical lens that you are applying in a new way? 
• Sentence 4: In one sentence, state the intellectual contribution that your paper makes, identifying the importance of your paper.

(from " How to Write a Good Abstract for a Law Review Article ," The Faculty Lounge, 2012).

Sample Student Abstracts

The following abstracts are from student-written articles published in Law Reviews and Journals. These abstracts are from articles that were awarded a Law-Review Award by Scribes: The American Society of Legal Writers . You can find more examples of student-written articles by searching the Law Journal Library in HeinOnline for the phrase "J.D. Candidate."

Mary E. Marshall, Miller v. Alabama and the Problem of Prediction, 119 Colum. L. Rev. 1633 (2019) .

Joseph DeMott, Rethinking Ashe v. Swenson from an Originalist Perspective, 71 Stan. L. Rev. 411 (2019)

Julie Lynn Rooney, Going Postal: Analyzing the Abuse of Mail Covers Under the Fourth Amendment, 70 Vand. L. Rev. 1627 (2017).

Michael Vincent, Computer-Managed Perpetual Trusts, 51 Jurimetrics J. 399 (2011).

Other research guides.

NYU Researching & Writing a Law Review Note or Seminar Paper: Writing

The Writing Process

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• Last Updated: Jan 25, 2024 3:32 PM
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HLS Dissertations, Theses, and JD Papers

S.j.d. dissertations, ll.m. papers, ll.m. theses, j.d. papers, submitting your paper to an online collection, other sources for student papers beyond harvard, getting help, introduction.

This is a guide to finding Harvard Law School (“HLS”) student-authored works held by the Library and in online collections. This guide covers HLS S.J.D Dissertations, LL.M. papers, J.D. third-year papers, seminar papers, and prize papers.

There have been changes in the HLS degree requirements for written work. The library’s collection practices and catalog descriptions for these works has varied. Please note that there are gaps in the library’s collection and for J.D. papers, few of these works are being collected any longer.

If we have an S.J.D. dissertation or LL.M. thesis, we have two copies. One is kept in the general collection and one in the Red Set, an archival collection of works authored by HLS affiliates. If we have a J.D. paper, we have only one copy, kept in the Red Set. Red Set copies are last resort copies available only by advance appointment in Historical and Special Collections .

Some papers have not been processed by library staff. If HOLLIS indicates a paper is “ordered-received” please use this form to have library processing completed.

The HLS Doctor of Juridical Science (“S.J.D.”) program began in 1910.  The library collection of these works is not comprehensive. Exceptions are usually due to scholars’ requests to withhold Library deposit. 

• HLS S.J.D. Dissertations in HOLLIS To refine these search results by topic or faculty advisor, or limit by date, click Add a New Line.
• Hein’s Legal Theses and Dissertations Microfiche Mic K556.H45x Drawers 947-949 This microfiche set includes legal theses and dissertations from HLS and other premier law schools. It currently includes about 300 HLS dissertations and theses.
• Hein's Legal Theses and Dissertations Contents List This content list is in order by school only, not by date, subject or author. It references microfiche numbers within the set housed in the Microforms room on the entry level of the library, drawers 947-949. The fiche are a different color for each institution.
• ProQuest Dissertations and Theses @ Harvard University (Harvard login) Copy this search syntax: dg(S.J.D.) You will find about 130 SJD Dissertations dated from 1972 to 2004. They are not available in full text.
• DASH Digital Access to Scholarship at Harvard Sponsored by Harvard University’s Office for Scholarly Communication, DASH is an open repository for research papers by members of the Harvard community. There are currently about 600 HLS student papers included. Unfortunately it is not possible to search by type of paper or degree awarded.

The Master of Laws (“LL.M.”) degree has been awarded since 1923. Originally, the degree required completion of a major research paper, akin to a thesis. Since 1993, most students have the option of writing the LL.M. "short paper."  This is a 25-page (or longer) paper advised by a faculty supervisor or completed in conjunction with a seminar.  Fewer LL.M. candidates continue to write the more extensive "long-paper." LL.M. candidates holding J.D.s from the U.S. must write the long paper.

• HLS Written Work Requirements for LL.M. Degree The current explanation of the LL.M. written work requirement for the master of laws.

The library generally holds HLS LL.M. long papers and short papers. In recent years, we require author release in order to do so. In HOLLIS, no distinction is made between types of written work created in satisfaction of the LL.M. degree; all are described as LL.M. thesis. Though we describe them as thesis, the law school refers to them solely as papers or in earlier years, essays. HOLLIS records indicate the number of pages, so at the record level, it is possible to distinguish long papers.

• HLS LL.M. Papers in HOLLIS To refine these search results by topic, faculty advisor, seminar or date, click Add a New Line.

HLS LL.M. Papers are sometimes available in DASH and Hein's Legal Dissertations and Theses. See descriptions above .

The HLS J.D. written work requirement has changed over time. The degree formerly required a substantial research paper comparable in scope to a law review article written under faculty supervision, the "third year paper." Since 2008, J.D. students have the option of using two shorter works instead.

Of all those written, the library holds relatively few third-year papers. They were not actively collected but accepted by submission from faculty advisors who deemed a paper worthy of institutional retention. The papers are described in HOLLIS as third year papers, seminar papers, and student papers. Sometimes this distinction was valid, but not always. The faculty deposit tradition more or less ended in 2006, though the possibility of deposit still exists. 

• J.D. Written Work Requirement
• Faculty Deposit of Student Papers with the Library

HLS Third Year Papers in HOLLIS

To refine these search results by topic, faculty advisor, seminar or date, click Add a New Line.

• HLS Student Papers Some third-year papers and LL.M. papers were described in HOLLIS simply as student papers. To refine these search results, click "Add a New Line" and add topic, faculty advisor, or course title.
• HLS Seminar Papers Note that these include legal research pathfinders produced for the Advanced Legal Research course when taught by Virginia Wise.

Prize Papers

HLS has many endowed prizes for student papers and essays. There are currently 16 different writing prizes. See this complete descriptive list with links to lists of winners from 2009 to present. Note that there is not always a winner each year for each award. Prize winners are announced each year in the commencement pamphlet.

The Library has not specifically collected prize papers over the years but has added copies when possible. The HOLLIS record for the paper will usually indicate its status as a prize paper. The most recent prize paper was added to the collection in 2006.

Addison Brown Prize Animal Law & Policy Program Writing Prize Victor Brudney Prize Davis Polk Legal Profession Paper Prize Roger Fisher and Frank E.A. Sander Prize Yong K. Kim ’95 Memorial Prize Islamic Legal Studies Program Prize on Islamic Law Laylin Prize LGBTQ Writing Prize Mancini Prize Irving Oberman Memorial Awards John M. Olin Prize in Law and Economics Project on the Foundations of Private Law Prize Sidney I. Roberts Prize Fund Klemens von Klemperer Prize Stephen L. Werner Prize

• Harvard Law School Prize Essays (1850-1868) A historical collection of handwritten prize essays covering the range of topics covered at that time. See this finding aid for a collection description.

The following information about online repositories is not a recommendation or endorsement to participate.

• ProQuest Dissertations and Theses HLS is not an institutional participant to this collection. If you are interested in submitting your work, refer to these instructions and note that there is a fee required, which varies depending on the format of submission.
• EBSCO Open Dissertations Relatively new, this is an open repository of metadata for dissertations. It is an outgrowth of the index American Doctoral Dissertations. The aim is to cover 1933 to present and, for modern works, to link to full text available in institutional repositories. Harvard is not one of the institutional participants.
• DASH Digital Access to Scholarship at Harvard

Sponsored by Harvard University’s Office for Scholarly Communication, this is an open repository for research papers by members of the Harvard community. See more information about the project. 

Some HLS students have submitted their degree paper to DASH.  If you would like to submit your paper, you may use this authorization form  or contact June Casey , Librarian for Open Access Initiatives and Scholarly Communication at Harvard Law School.

• ProQuest Dissertations and Theses (Harvard Login) Covers dissertations and masters' theses from North American graduate schools and many worldwide. Provides full text for many since the 1990s and has descriptive data for older works.
• NDLTD Networked Digital Library of Theses and Dissertations Union Catalog Worldwide in scope, NDLTD contains millions of records of electronic theses and dissertations from the early 1900s to the present.
• Law Commons of the Digital Commons Network The Law Commons has dissertations and theses, as well as many other types of scholarly research such as book chapters and conference proceedings. They aim to collect free, full-text scholarly work from hundreds of academic institutions worldwide.
• EBSCO Open Dissertations Doctoral dissertations from many institutions. Free, open repository.
• Dissertations from Center for Research Libraries Dissertations found in this resource are available to the Harvard University Community through Interlibrary Loan.
• British Library EThOS Dissertation source from the British Library listing doctoral theses awarded in the UK. Some available for immediate download and some others may be requested for scanning.
• BASE from Bielefeld University Library Index of the open repositoris of most academic institutions. Includes many types of documents including doctoral and masters theses.

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• Last Updated: Sep 12, 2023 10:46 AM
• URL: https://guides.library.harvard.edu/studentpapers

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Intro to writing legal papers.

Legal writing is a demanding task which will challenge even the most skilled writers; forcing them to think and write in a style that conflicts with the habits of ordinary communication.

Legal writing differs from most other forms of writing due to the extraordinarily high level of accuracy and efficiency required in legal communication. Such accurate communication requires massive amounts of legal research which (at first glance) may appear impossible to condense into a research paper, let alone a tiny memo. This is where the art of efficient writing comes into play, allowing the author to condense complex legal arguments into an understandable package.

This efficiency aspect of legal writing is also key to the accuracy of the legal writing. Even if your legal argument is undeniably correct, presenting that argument via lengthy and convoluted logic will risk losing the attention of your audience; failing to deliver your message, or worse yet, deliver the wrong message. Such results are never desired, especially with important audiences such as  judges, jur ies, clients, and law professors.

Use the following the guides to improve your legal writing skills, helping you to improve the readability of your logical arguments and ensure these arguments will lead your audience to the logical conclusion.

Utilize The IRAC Method

The IRAC Method is the standard format for legal writing because the IRAC format forces authors to separate dense logical arguments into smaller and more understandable components. Rather than throwing a densely packed logical argument at the audience, the IRAC Method  will first introduce the reader to the legal I ssues at hand, provide the legal R ules necessary to evaluate those legal issues, then A pply those legal rules to the facts to the case at hand; thus leading the reader to a logical C onclusion.

Every legal issue is different, though, and some will not fit nicely into a preset formula such as the IRAC. Therefore, the IRAC should only be used as a guideline for writing (unless your professor states otherwise, of course). More on the IRAC method

Use Introductions To Prepare your Audience

For every legal issue, begin with a strong introduction that states that issue, why that legal issue is relevant to the facts at hand, any sub-elements of that issue, and finally, the logical conclusion that you intend for your reader to reach by reading your argument.

This introduction should be a brief summary of your entire argument, with which you can prepare the reader for your logical argument and the subsequent logical conclusion. This summary should brief the reader with the facts that give rise to the legal issue, the rules and and logic which will be used to reach your conclusion. This summary will help the reader understand where your argument is heading and thus, hopefully, help them digest the dense material contained within the rest of the paper.

Organize Your Writing Logically

While good structuring is a necessary component of all writing, legal writing demands near-perfection in logical organization. Luckily though, the inherent logic and hierarchy of the legal rules used will provide this organization for you; as long as you understand how the rules relate to each other.

Let us imagine a few easy legal issues regarding a breach of contract case. First, was a contract formed? Second, did the party in question have justification for breaching said contract? 

The first logical step is to determine whether a contract was formed at all; because if no contract exists, there is no need to discuss whiter there was a breach of that contract. If there was a contract formed, and you needed to discuss the possibility of a breach, that discussion would naturally fall after the discussion of contract formation.

By letting the legal rules determine what issues are discussed first, or discussed at all, the organization of your paper will develop on it's own. One way to hone your skills at organizing these rules is to outline your argument thoroughly. More on Outlining

Write Efficiently

To write a good legal paper, or to at least get it under the specified word count, you are going to have to think about every paragraph, sentence, word, and punctuation mark with a critical eye. Ask yourself, does that really need to be there?  When writing a complex argument, any extraneous word is an obstacle for the reader in their attempt to follow your logic. Basically, every sentence you write should regard a necessary element of your paper, and that element should only be addressed once; redundancy is useless. 

Write Precisely

Precision in legal writing is essential. Typos and errors not only appear unprofessional, but they can also change the meaning of contracts, wills and court documents. A sloppy lawyer (or law student) will not impress anyone, and continuing those bad habits will lower points on exams, fail the expectations of clients, and set the lawyer up for professional discipline. 

Law Research Paper

This sample law research paper features: 7700 words (approx. 25 pages), an outline, and a bibliography with 25 sources. Browse other research paper examples for more inspiration. If you need a thorough research paper written according to all the academic standards, you can always turn to our experienced writers for help. This is how your paper can get an A! Feel free to contact our writing service for professional assistance. We offer high-quality assignments for reasonable rates.

Introduction

Anthropological foundations of law, ethical foundations of law, characteristics of law, ancient and modern law, law in segmentary societies, law in premodern states, law of the international community.

• Conclusion: Functions of Law
• Bibliography

More Law Research Papers:

• Law and Order Research Paper
• Judiciary Research Paper
• Juries, Lay Judges, and Trials Research Paper
• Comparative Legal Cultures Research Paper
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Law is a cultural achievement of humankind. On the basis of rules that are typically connected with sanctions, it is meant to prevent or overcome social conflicts. The nature of these rules can generally be distinguished by their purpose: They either serve the purpose of deciding legal cases (rules of decision) or the purpose of conducting a legal process (rules of conduct). The foundation of the rules, too, can vary. Some legal cultures base their rules on (unwritten) traditions (common law), usually replenished with precedents of case decisions by the judge’s dispensation of justice (case law). In contemporary legal systems, however, the foundation of legal decisions is above all provided by the state legislature (statutory law). In modern judicial terms, the sum of legal norms, which forms a more or less coherent legal system, can be described as objective law. The (legally guaranteed) authorizations of the individual member of this legal system (e.g., the citizen), on the other hand, are subjective rights, guaranteed, for instance, in the form of civil rights.

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The social function of preventative conflict avoidance or reliable conflict resolution can be fulfilled, lastingly, only when law is also able to offer criteria in terms of content to justify legal decisions. Since ancient times, law has therefore been characterized not only by its sanctions but also by its reference to justice. At the beginning of Justinian the Great’s Digesta (533 BCE), a collection of the works of Roman legal scholars, it is stated in that respect: “Law is the art of the good and the fair” ( ius est ars aequi et boni [ Digesten, 1.1.1. pr.]). Similar definitions can be found in other legal cultures that have not been influenced by Roman law. Yet law also involves the “authorization to coerce” (Kant, 1996, p. 25), as we learn from Immanuel Kant (1724–1804). Both sides, coercion as much as justice, have at all times during the history of humankind decisively influenced the development of law. One essential reason for the continuously tense relationship between these two dimensions of law is the strong correlation between law and human life. Friedrich Carl von Savigny (1779–1861), a distinguished German legal scholar and the founder of the so-called Historical School of Law, once noted rightly that law had no intrinsic content; it is directed toward and, at the same time, dependent on the life of human beings. This fact displays the anthropological foundation of every law. Moreover, it bears legal consequences that are concisely expressed in a canon of ancient Roman law: No one can be obligated beyond his or her capabilities ( ultra posse nemo obligatur ). This principle is rooted in the insight that a legal norm that asks too much of an individual is simply unjust.

From the viewpoint of evolutionary biology, the development of law shows itself to be a matter of adjustment to the benefit of our own species’ self-preservation and reproduction. This concept is above all based on the findings of primatology. This science informs about the phylogenetic background of Homo sapiens and allows conclusions to be drawn about the emergence of normativity in human relationships. The phenomenon of reciprocity is of major importance in this context; it can, for instance, be observed in the social behavior of chimpanzees, our closest relatives. To meet the basic challenges of self-preservation and reproduction, chimpanzees live in social groups. The advantages are obvious: The offspring is more effectively protected, and food is more efficiently secured. Our species develops affection for the building of societies, an appetites societas. Not unlike human associations, though, living in groups is never without disadvantages. These occur whenever competition arises within the group in the struggle for scarce supplies that ultimately decide on the individual fate of the group members. Chimpanzees have obviously developed the ability to ensure a regulated exchange of goods among each other. The disposition to share goods among one another considerably depends on whether the “beggar” was, in a reversed situation, also willing to share his food or to provide the “proprietor” with other “services” (e.g., “grooming”). Generosity will generally be answered likewise; parsimony will be socially sanctioned. Chimpanzees appear to have a highly developed long-term memory for social relationships; it lays the foundations for an equipment that stabilizes the social order and that sanctions deviance, for instance, through the building of coalitions. To a certain extent, the success of social associations is the result of “chimpanzee politics” (de Waal, 1982).

But are these observations of altruistic behavior compatible with the genetic self-interest that constitutes the fundamental axiom of evolutionary biology? They are and in two ways: First of all, it should be noted that the thesis of a “selfish gene” (Dawkins, 1989) does not refer to the individual or the population. These are only “agents” of the “victorious” genes, which survive at the expense of the less suitable genes. Biological evolution is genocentric. Natural selection in principle awards features that encourage survival and reproduction—not only of single individuals but also of relatives. This is at least applicable to highly developed creatures in social associations. Here, organized forms of family support have been observed. The basis to this nepotistic altruism is consequently the self-interest of each individual’s genetic programs. Their purpose, the reproduction of genetic information, is achieved through the fitness of the family. Nepotism is oriented toward this fitness.

The self-interest of nepotistic altruism for the family is different from reciprocal altruism, which, under two conditions, can also include nonrelatives: First, in the long run, solidarity must pay off for the individual, for example, when food supply is dependent on good fortune during the hunt. In this case, solidarity serves to diminish the individual risks of life; if there is no shortage in food resources, then solidarity generally vanishes, too. Second, the mechanism of reciprocity must work out. While nepotistic altruism involves the danger of a bad investment, reciprocal altruism involves the danger of an exploitation by “free riders.” In both cases, the problem expands with the size of the group and thus endangers altruistic behavior—in the end, to the disadvantage of everyone.

From the standpoint of evolutionary biology, it is evident that (moral and legal) normativity has biological roots. Norms of reciprocity help to perform the adjustment that could not be performed within the parameters of egoistic behavioral patterns. Reciprocity is the beginning of a moral consciousness that distinguishes between factual and normative behavior. But it requires stabilization by means of specified rules and sanctions. Human ability to establish a legal system and the simultaneous need to live in such a system reveals humanity’s special position in nature. This has been evident since the natural sciences have contributed to the self-enlightenment of humankind: In terms of the objective parameters of natural science, there is not much that could distinguish humans from other life-forms. Subjectively, however, our species can do nothing other than turn itself into the center of its environment; humanity has no alternative but to build its world according to its own criteria. Max Scheler (1874–1928) tried to grasp this situation in his concept of the “openness to the world.” It is meant to denote human independence from organic bondages. Man or woman is instinct driven, but also he or she possesses the ability to say “no” in order to postpone or to sublimate his or her urges. The resulting opportunity and necessity is not merely to live but to lead his or her own life. Like Nietzsche, Arnold Gehlen (1904–1976) regards a human as the “not determined animal.” Man or woman cannot be sure of his or her surroundings; he or she lacks the protective instincts. As a result of his or her biologically deficient vesting, there are no natural habitats; everything and everybody can turn into an enemy. Consequently, a human is a being whose life is constantly at risk. Thus, humans have no choice but to create their own relations to the world and to themselves through active performance. Her or his nature is culture; this is how she or he compensates for her or his “deficient constitution.” And yet woman or man is not only defenseless against her or his environments, but she or he is also dangerous. Undetermined but driven by her or his physical desires, she or he is latently threatened by degeneration. Hence, man or woman not only has to lead his or her life, but he or she also has to be led, namely by institutions. Institutions make up for his or her absent instincts; they support man or woman by obliging him or her to behave in a given way and, at the same time, relieve him or her from the burden of incessant decisions.

Institutions can evolve and persist wherever things that are taken for granted are valued accordingly. The modern world, however, is marked by an increasing absence of customs and by a growing plurality of values. Customs and values as institution-building factors are replaced by law that is in fact free of contents but still has a stabilizing effect. Humanity’s modern world is literally a world of law. The close connection between human nature and human culture, entailed by humankind’s lack of instinct and world-openness (i.e., the idea that humans are not limited by their environment but can transcend it), leaves humankind no choice but to build humanity’s life on law.

Moral and ethical claims of today’s norms have evolved from the social history of humankind. Most notably, this is true of custom. It provides tradition with a generally binding authority to which law, too, was subject for a long time. Old law was good law. Nowadays, it is typically the other way around. Accordingly, a later law overrules an earlier law ( lex posterior derogat legi priori ). In the course of time, law has emancipated itself from customs and has become more independent. Nonetheless, law remains dependent on acceptance, approval, and discernment. The phenomenon of an increasing juridification of social life should not be regarded only as a process of law’s emancipation from ethics and morals. On the contrary, in the question about the right law and about its connection with justice, the bond between law and the prelegal foundations of human social existence recurs.

Juridification is a process that commences whenever social norms lose their effect. Above all, habit and custom belong to the social norms; fashion, too, can be part of it. While habit lives on permanence and repetition, fashion is, and must be, ephemeral in order to consistently reinvent itself. Its aim is disparity; chic and elegance is not for everyone but only for the few. Habits are unspecific in this regard; one has a habit, or one does not. But a particular habit can only rise to a common law if it is shared not only by the individual but also by the majority. In the English language, this is expressed in the differentiation between habit (of the individual) and custom (of the group) (French habitude, coutume; Latin habitus, consuetude ). As opposed to habit, custom, just like the law, claims to be valid for every member of a given group. It is therefore oriented toward equality. Religion constitutes its own category of ethical norms.

The Greek term ethos illustrates the close bond between habit and custom as it is related to “habitation”: One can get accustomed to various habits. However, habit requires more than just a superficial adaptation; namely, it requires a certain inner attitude. From this, a basic attitude can evolve that shows “character.” This, too, is covered by the meaning of ethos. Accordingly, character always has to be formed first. The virtue whose ethos keeps law and ethics together is uprightness. It illuminates the ethical meaning of being right; namely, being right is to strive for the establishment of a system based on law. A dogmatic attitude, however, destroys such an order as it gives the desire to be right precedence over the right itself.

Moreover, it is part of the ethical foundation to give reasons, not only for a court judgment but also for all forms of institutionalized legal decisions. The obligation to state reasons directly results from a particular concept of justice and consequently from an ethical commandment. As per Aristotle ( Nicomachean Ethics, V 3, 1129b), justice is “perfect virtue, though with a qualification, namely that it is displayed toward others.” It is perfect, “because its possessor can practice his virtue toward others and not merely by himself.” For the judge, who can decide in favor of only one party, this means an obligation to state reasons above all toward the unsuccessful party. The winner of a lawsuit does not usually care too much for grounds; thus, the loser will ask for the grounds. Owing to the judge’s commitment to law, these grounds must be deduced from positive law. The reason for the grounds, however, is not of a legal nature but of an ethical one; this is to ensure a continuously peaceful social existence of those who were having a conflict with each other while insisting on their (assumed) legal right. The realization of fair proceedings alone, which allows each side to present their views and to be heard ( audiatur et altera pars ), contributes to this appeasement. A prudent judge will attach less value to the applause of the successful side than to the silence of the unsuccessful one. The procedural law obligates the judge only to the stating of reasons. The quality of these reasons is up to his or her professional ethics. It requires an appropriate translation of the judicial into the layperson’s language and a comprehensive conveying for the unsuccessful side. In some cases, the latent tension becomes tangible between law’s rationality and predictability on the one hand and the respective demands for material justice of all litigants on the other hand. For an appropriate decision, much will then depend on the judge’s ability to meet the ethical foundations of law.

This problem has a long history. Basically, there are still two opposing notions: Legal positivism takes the stand that the legal concept is to be understood as not including moral or ethical elements. Law is regarded as being separated from these values. Following the logic of this separating thesis, law can have any given content. The positivistic legal concept solely depends on whether a law was created in accordance with regulations and whether it is socially effective. Those who, beyond that, require the legal concept to create a just law, follow the tradition of the theory of natural law. They associate law with a claim for correctness in terms of its content that cannot be given up without giving up the legal concept itself.

In the course of time, law has occurred in many places in various shapes. Not only norms have changed and multiplied, but also legal institutions have been extensively transformed. Yet there is no shortage of attempts to define the characteristic element of law. Three approaches are of particular significance.

The first concept holds that law’s characteristic is founded on its abstract rules. This view can advert to a long historical/cultural tradition, such as Hammurabi’s Code (ca. 1760 BCE) or the Roman Twelve Tables of Law (ca. 450 BCE). The theories of natural law have also contributed to this opinion. Through Stoicism, natural law had first found its way into the philosophy of ancient Greece and later into the works of the ruling classes of ancient Rome. Cicero, for instance, adapted the idea that human life is subject to the purpose of a highest law. This legal concept is the starting point for a hierarchy of law, with the three components being eternal law ( lex aeterna ), natural law ( lex naturalis ), and human, or positive law ( lex humana, or lex positiva ). In antiquity, eternal law was understood as unchangeable and inevitably valid for everyone. Positive, or human law, contains all those norms that determine the social life of the respective society. Natural law, in turn, comprises all norms that humans and peoples reasonably share.

The notion of a legal hierarchy has gone through many enduring transformations. Among others are those that were introduced by Christianity, particularly by the influential doctrines of Augustine of Hippo (354–430) and Thomas Aquinas (1225–1274). Both do not interpret the lex aeterna as a cosmic principle but rather as the expression of God (there still are disagreements as to whether this must be interpreted as divine reason or divine will). Mutatis mutandis, the concept of a hierarchy, can also be found in modern legal systems. Examples include the precedence of international law over national law, the special status of human rights in democratic states, or the enhancement of the constitution (e.g., by the Supreme Court in the famous decision Maryury v. Madison, 1803) to the “supreme law of the land.”

Modern legal theory has seen many attempts to describe law as a coherent system of norms. The most notable representatives include, among others, John Austin, H. L. A. Hart, Ronald Dworkin, and Hans Kelsen or, more recently, Robert Alexy and Joseph Raz. Within the transatlantic discourse, the theory of Kelsen (1881–1973) has proved particularly influential. The center to his analytical reconstruction of an objective legal system is a norm pyramid: An individual legal norm derives its validity from a higher norm and itself validates a lower-ranking norm. To solve the problem of an infinite regress, Kelsen introduced the so-called hypothetical basic norm. This norm serves as a transcendentallogical condition for the coherence of a legal system. A norm is part of a legal order only when it can be deduced from the basic norm.

A fundamentally different view was held by Eugen Ehrlich (1936), which he also developed through the examination of Kelsen’s “pure theory of law.” According to Ehrlich, it is important to comprehend the “living law.” By this, he understands those rules that the citizens actually comply with. This law had to be differentiated from the “laws in the books,” as well as from laws and their concretion, through legal practice. For all these norms could not force a certain human behavior but are themselves dependent on the effective rules of social behavior. Bronislaw Malinowski has made a similar attempt to define law from the reality of community life and, above all, referred to the obligating power of reciprocity.

The third version sees law as those principles that can be deduced from the decision of legal authorities. Significant preparatory work to this was, among others, produced by Karl N. Llewellyn and E. Adamson Hoebel. Oliver Wendell Holmes (1897) put this concept in a nutshell: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (p. 461). While in the first version, law is determined by norms and the legal system, in the second version, law is determined by social effectiveness. The former could be termed normativism, the latter vitalism. The third version regards itself as belonging to realism as it defines law according to the actual behavior of authorities. As opposed to the other two approaches, legal disputes become the center of attention. From this perspective, law is different from politics, as well as from customs and morals.

The realistic approach, just as the vitalistic approach, regards law as a social phenomenon. But it is not only the community’s compliance, which this approach examines, but also the realistic approach does not differ from custom. The focus is mainly on the authorities’ actions in case of conflict. These do not perform only a regulating function qua mediator but also offer an orientation for the citizens. Normativism and realism generally agree about the regulating function of law. To realism, it is less a result of norm parameters than it is the task of the institution, which finally has to apply the law to a case. For the obligation of legal application, especially in the light of social changes, the judge needs the faculty of judgment and creativity. However, the judge’s role is usually confined to understanding the social dimensions of a dispute between opponents, to transforming it into a legal relationship, and to settling it by means of law. Lawsuits are about the actual claims of the parties involved as well as the reestablishment of a symmetric legal relationship among them. Advanced social interventions are the responsibility of the government. In modern societies, politics typically makes use of the law to realize its targets. Yet by using the law as an instrument, politics also submits to the legal form that is, above all, the prohibition of arbitrariness (which is guarded by jurisdiction in modern constitutional states, above all by administrative and constitutional courts).

Its connection with authority also distinguishes law from other social behavioral norms, such as customs and morals, whose sanctioning mechanisms are, typically, hardly institutionalized. If and to what degree sanctions occur, in the case of norm violations, are not certain. The authority of law, on the contrary, is decisively based on the certitude that law is also enforced. It otherwise represents dead law. By no means does a sanction always have to imply coercion or physical force. A sanction’s form is not essential but the effective implementation of the decision is. For example, the Inca civilization’s prevailing penalty for community members consisted of corporal punishment, including the death penalty. However, the Inca nobles were punished with public exposure and removal from office, as they feared social death more than physical death. Modern constitutional jurisdiction is another example of effective sanctions: Constitutional courts cannot force the government to comply with their decisions. Finally, it is the court’s authority with regard to constitutional issues that the government submits to. If it does not comply, then the government’s action would most likely result in a bad public reputation for intending to practice unlawful politics in a state based on the rule of law. However, this requires the court to present itself to the public as a reliable guardian of the constitution by making equitable and wise decisions.

Evolution of Law

With the establishment of modern statehood, law changes its character. Ideally and typically, the differences can be described as follows: Prestate societies often aim at solving conflicts by reaching a consensus among the opponents during negotiations. If they fail in this attempt, then physical force is usually applied as a means of self-help. Law in modern societies, on the other hand, provides for judicial proceedings in litigations. In case of need, law is enforced by state power. Modern states can resort to a differentiated system of institutions. On the norm level, law is abstract and impersonal; it is valid for everyone in the same way and it does not regard differences in status or reputation. Thus, individuals have to take responsibility for their actions. He or she knows what to expect when violating a norm. Punishment is based on this transparency and predictability. For what reasons the individuals comply with the rules is insignificant to the law.

This distinction between exterior behaviors and inner motives is largely unknown in prestate systems. In the case of norm violation, the entire person will be regarded, not only his or her actions. Strictly speaking, the individual is not only solely responsible for his or her own behavior but also is part of a family that is just as much affected by the dispute. Every sanction has to bear this in mind. Finally, it is less about a personal punishment than it is about compensation in order to maintain the social system.

Owing to these differences, there is a long history of debates between historians and ethnologists about law as to whether the norms of prestate societies should be regarded as law or customs. By now, the views tend to accept that (in these orders) laws, morals, and customs cannot be reasonably discriminated. These elements, rather, display a process in the course of which the several fields slowly differentiate.

The order of segmentary societies is organized through extraction and kinship. These societies usually consist of small communities (villages, tribes, etc.), which live in separated areas. They lack a central political authority; each community autonomously governs its social life. The regulating norms form a mixture of religion, custom, and law. In hunter-gatherer societies, the need for legal regulations is only very low and primarily occurs in the spheres of matrimony and family. Violations of the incest ban are punished as a severe offence against the community. Adultery, assumed or actual, is among the most prevalent conflicts. Property, on the contrary, is seldom a cause of quarrel. Hardly anyone owns something that would not be owned by the others. There are scarcely incentives for covetousness; probate disputes play no role at all.

The necessity for regulation increases with the change to agriculture and settledness. The population grows and with it the significance of lineages and clans. These are the actual bearers of rights, which now increasingly refer to property and particularly to real estate. The land or the livestock belongs to the clans; they are the owners, but individuals are not. Without their association, the individual is not only poor but also defenseless. In the absence of a state monopoly on force, it is the lineages that guarantee the individual’s security, namely through the threat of a blood vendetta.

To threaten in this manner with a maximum of vengeance follows the principle of deterrence. De-escalation is therefore a major requirement for all sides. There is no norm violation that could justify an endangerment of the community as a whole. A blood feud not only destabilizes the system within but also weakens the community outwardly. Although the individuals may not live in a so-called state of nature, the respective communities do. There is no valid law or custom beyond the community “segment.” In this no-man’s-land, life is, as Thomas Hobbes put it, solitary, poor, nasty, brutish, and short. The responsibility to maintain peace within the community is all the higher; law is oriented toward this. In case of a norm violation, it is therefore less relevant to impose sanctions than to compensate for the detriment incurred or to requite in the same way through the ius talionis (“an eye for an eye”). If very serious crimes are committed, then the community as a whole unites against the culprit in order to prevent a spiral of violence. Furthermore, various norms are provided to obviate violence and to secure peace: Among the most famous are the asylum by the leopard-skin priest, purification ceremonies, and negotiations of expiatory payment, and so on.

This kind of self-regulation without political order can be kept alive only within small spaces. With spatial extension, a political form of governance evolves that is in effect founded on the precedence and subordination of lineages and clans. The reasons for these processes can vary, but they mostly lie in the person’s charisma to which certain skills are attributed. The respective clan can turn into a chiefly lineage if it succeeds in connecting the myth of a special governance competence with the myth of a special derivation (of gods or heroes). A chiefdom can comprise multiple levels, each with one hierarchical top (headman, headwoman, chief). The paramount chief is distinguished by a series of privileges to which only he or she has access (tributes, trade with prestigious objects, claims on the prey, etc.). For it is he or she who exclusively possesses direct admission to the gods. Owing to the paramount chief, the gods are well disposed toward the people and present them with fertility, rich harvest, and victory in case of war. It is also the paramount chief who makes the final decision to end disputes. These cases are of particular importance, and that is why his or her judgment usually avoids a distinct decision. The paramount chief, too, is primarily concerned about fathoming out possibilities for reestablishing social peace. To this end, it can now and then be advisable not to make his or her own decisions but to consult the gods directly through oracles or ordeals.

Yet the paramount chief’s status is fragile for three major reasons: His or her competition arises from within his or her own family, as every member of the chiefly lineage is principally able and entitled to take over the rule; although the paramount chief can protect himself or herself from a coup with personal life guards, she or he cannot prevent enemies from having the same guns at their disposal (bow and arrow, spear, and shield cannot be monopolized, but they can be independently produced by anyone); and finally, it is not in his or her hands whether the gods maintain their well-disposed attitude toward her or him. Plagues, crop failures, and other forms of disaster inevitably initiate considerable doubt about his or her rule. Rise and fission of this kind of political rule are very close.

The premodern state differs from segmentary societies and from the chiefdom in its institutionalization of political order. The information and decision-making processes become structured and are organized hierarchically. First and foremost, this is done by the establishment of a bureaucratic administration. The introduction of the written form of communication permits the collecting and processing of larger amounts of information. Archives provide experiences for future decision making, and reforms can be compassed on a grand scale. Information is gathered from bottom to top, but decisions are carried out from top to bottom. This rationalization creates space for delegation and results in a differentiation of politics: It is not only guidance, for it also turns into an organization whose routines ensure the functioning of the political association.

The organization’s effect can be felt in every scope of the state; taxes lose their character of donations, which are connected with the expectation of reciprocation (they become charges, which are mandatory duties for the financing of the state). The level of physical force within the society is lowered; it becomes illegal to take the law into one’s own hands or to feud with another citizen. The state monopolizes the instruments for the use of force, regulates the equipment of the army, supervises the arms production, and arranges for the logistics of the forces. The power to secure peace and order is not anymore in the hands of clans but rather lies in the organizing authority of politics. Lasting changes can also be observed in the field of jurisdiction: The establishment of the written form fundamentally alters the character of law. The gain in clarity is accompanied by a loss of flexibility. This generally results in an enhancement of the written text in law; some states (e.g., imperial China) even cultivate a legalistic tradition. Yet the character of the legal culture also depends on the institutionalization of jurisdiction. In ancient Rome, courts continue to play an important role under the modified conditions of the written form. In the democratic polis of Athens, however, courts are an instrument of self-help for the parties of the litigation; moreover, their character as true mass events (up to 500 judges participate in a usual hearing) necessitates a strict formalism that has not displayed much impact on the development of law contents.

Just as in segmentary societies, the law of premodern states significantly contributes to the preservation of the social order. This order, however, is marked by social differences in status. The chiefdom was already based on relationships of precedence and the subordination of clans; in premodern states, the social stratification increases. Law is primarily a question of status. The upper classes possess exclusive access to public offices and hence to political power. The lower classes, including peasants, tradesmen, and merchants, hardly possess any rights. Slaves are without any rights at all; the homicide of slaves by someone who is not their owner, at the most, results in a responsibility to compensate for the loss. Other parts of the society are also excluded from law, as they are not able to claim their own rights. Among them are mainly women and children but also wards (clients). All of them are subordinate to their protector according to Roman law, the pater familias, or the patron, who represents them before the court or at other institutions. Within this static order, the individual scarcely has opportunities for advancement. One is born into one’s fate, and this fate is cemented by the law. Correspondingly, being marginal is the significance of legislation. Law does not serve to regulate social transformation but rather to secure a social order that is founded on inequality.

Law in Modern States

Caused by dramatic social upheavals, the processes that lead to an increased concentration on lawmaking accelerate during the 16th century. Law is still seen, in general, as an expression of divine will, but as a result of religious division, the certainty about the content of this will begins to dwindle. Rather, this issue becomes the object of a dispute that irrevocably splits the Christians’ unity and leads to the destruction of Europe during the Thirty Years’ War. More and more, the idea prevails (which had already been proclaimed by Bodin, Hobbes, and others) that law alone cannot ensure peace. Peace also requires politics, more specifically, a sovereign power that holds the reins of law and justice in its own hand. Thus, law becomes an object of human creation and an instrument of a constantly growing political will to create. This is the beginning of the politicization of law. From the mid-16th century to the early 19th century, law serves more and more to consolidate the peacekeeping system of the territorial state, to reduce privileges, to control jurisdiction, and to centralize administrative structures. In the course of these developments, legislation continuously increases in importance; as a consequence, the relationship between law and politics begins to shift. Law, formerly an expression of the concept of justice, becomes less important as a binding parameter for political orientation. Whatever remains of the concept of justice is turned into nonbinding natural law, which does not endanger the legislative sovereignty of the ruler nor its peacekeeping, system-securing effect.

With the rise of the bourgeoisie as a political power, the situation changes as was manifested in America’s War of Independence (1775–1783) and in the French Revolution (1789–1799). The claim to power as a divine right is challenged just as vehemently as the state’s unrestricted authority. Instead, all of a sudden, it is a “self-evident” truth “that all men are created equal [and] that they are endowed with certain unalienable rights,” as the Declaration of Independence written by Thomas Jefferson stated in 1776. The firm belief that society can rule itself for the greater public good is the common core of the different strands of liberalism. To the liberals, law becomes a guarantor of individual liberty, that is, equal rights for everyone and not privileges just for the few. After all, it is the people, the citizens, whose cumulative effort forms the whole of society. Accordingly, people must also be granted the right to political self-determination as put forth by Abbé Sieyès in his famous pamphlet Qu’est-ce que le tiers État? (1789). It has since been the legacy of the Enlightenment era that political power can be justified only when its claim to power is democratically legitimized and legally limited. This is only one element that contributed to the process of the juridification of politics.

The other main element is the constant expansion of legislative activity in response to tremendous social transitions, for the most part caused by the Industrial Revolution. While the growing social demands intensify the political process by increasing the number of political decisions as well as their purview, an internal hierarchy is established within the European legal system. It differentiates between two principal levels of law: statutory law, which is enacted by the legislative power, and constitutional law, which is enacted by the constituent power. Constitutional law provides a regulatory framework for the establishment and purview of statutory law, but it is kept safe from a hasty interference of politics. The creation of a constitution itself differs fundamentally in its historic importance from the everyday passing of laws in a constitutional state. Most states store their own historical “constitutional moment” (Ackerman, 1989) in their collective memory. Furthermore, amending the constitution requires in most countries a much more complicated and consensus-oriented process than changing laws. This internal hierarchy between constitutional law and statutory law enables a mutual dependence of politics and law. It empowers the lawmaker to act politically, swiftly, and effectively in order to change or adapt the law according to his or her own ideas and to even create a completely new legal situation. Nevertheless, he or she must adhere to the constitutional requirements.

The sovereignty of states, which arose from the close connection between politics and law, is also of major importance in international relations. Sovereignty dominated classic international law, which came into being with the Peace of Westphalia in 1648. Until the beginning of the 20th century, international law was primarily interstate law, resulting from agreements among individual states. Rules and institutions at the international level were subject to the principle of unanimity; nothing could be implemented against the will of a state. In this regard, every state was equal in sovereignty. The sovereignty was primarily documented in the right to wage war ( ius ad bellum ). The disaster of World War I, however, led to a change of views. The League of Nations (1920) was a first attempt to transform the unrestricted right into a partial ban on war. The Briand-Kellogg Pact (1928) went even further and aimed at a general outlawing of war. But not until after World War II was the time ripe for a substantial modification of classic international law: With the Charter of the United Nations (1945), a general prohibition of force has been introduced, complemented by a global obligation to ensure peace. The multitude of transnational players and international organizations has already at the time of the Cold War (with its debilitating consequences primarily for the UN Security Council) resulted in an advancement of international law. It has become an “international law of cooperation” (Friedmann, 1964, p. 251). International human rights are increasingly established as the critical criterion for international politics.

Since the end of the Cold War, the challenges of globalization can no longer be ignored: It is manifest in the daily, global forms of communication (e.g., the Internet) and traffic (e.g., the international employment market); it appears in the form of ecological problems (e.g., climate change), which overtax the individual states as much as economical issues (e.g., unregulated financial markets).

The state’s power is no longer sufficient to protect against threats coming from inside and outside its territory (e.g., international terrorism). As these key words illustrate, the sovereignty of the state is put into question. It once was the expression of the connection between law and politics in a state; now, however, social systems and political fields begin to disengage themselves from statedefined (territorial) frameworks. Politics is increasingly dependent on transnational players, which are organized in networks and equipped with their own negotiating power. Foreign relations are no longer a government’s prerogative.

From this, crucial challenges for international law follow whose further development is part of the paramount tasks of the international community; international law has to enhance and consolidate those processes that stay abreast of the diversification of players as well as of the extension of activity levels (this also includes the divers regional orders as an autonomous level within world politics). This will require a reconsideration of the relationship between universalism and particularism in international law. The crucial question in this regard is, How much legal pluralism is possible, and How much constitutionalization of international law is necessary on the way to an effective legal order that would be worthy of the name “law of mankind”?

On the way to this effective legal order, international law has already partly developed into a regulatory law of the international public order. The sovereignty of the state is no longer an insurmountable barrier toward the international protection of human rights. The international community can and must intervene in case of gross human rights violations. This self-commitment of the international community constitutes a major break in international law. It will succeed in justifying this, though, only if the interventions themselves form an inevitable step toward the juridification of international politics. The guiding principle of legal reason is to exit the state of nature as Immanuel Kant stipulates. And he adds that as long as a free society based on law is not realized, it can, under certain circumstances, be permitted to coerce another person to exit the state of nature and to enter into the civil society organized by the rule of law. The obligation of international law is to clarify the conditions of these permitted compulsory measures. This would be a main contribution to the strengthening of international law’s legitimacy.

Abstractly speaking, the specific function of law is to protect the (normative) structure of expectations within a group against disappointments. This is primarily done by means of sanctions, which are imposed in case of disappointed expectations. At the same time, sanctions serve as incentives for the community members to fulfill the generalized expectations. The prerequisite for a socially effective, or “living” law, is not merely its standardization but also its institutionalization. Both developments are closely connected; they facilitate a division of legal work that is of major importance above all for the modern law. Under the conditions of an increasingly complex society, the uncertainty is growing as to what is expected of the individual and if this expectation is shared by others. Law tends to reduce this uncertainty by providing general rules of conduct, which are directed at everyone. The more abstract the standardization of behavioral rules becomes, the more necessary is the individualization of case decisions by appropriate institutions. The history of law is therefore as much a history of standardization as a history of institutionalization.

The invention of a triangular relationship is of crucial importance for the institutionalization of law. It consists of two conflicting parties and one impartial person, or institution, with the obligation to settle the dispute. The character of the third person can vary (judge, chief, council of elders, etc.), but its function relieves community life in several ways that can ideally and typically be summarized as follows: First, the mediation by a neutral third person represents an alternative to the logic of mutual vengeance. On principal, this contributes to a decline in violence and consequently strengthens a community’s integration capacity. Second, the function of the judge marks the beginning of an institutionalization of social roles that structure the distribution of power within a group. Socially accepted behavior and legally protected expectations connect and stabilize themselves in the respective roles; and the roles themselves forward the anticipation of sanctions and typically increase the self-domestication of the group members. This supports the interplay of leadership and followers and decreases arbitrary behavior on both sides. Third, the repetition of the application of the law and the law enforcement are augmentative, in terms of the reliability of expectations, provided that the dispensation of justice will lead to the same or to very similar results in the concrete case. This incentive can encourage the authority’s self-commitment to precedents. Furthermore, it can be a stimulus to the development of legal equality within a group, for law lives (as opposed to the privilege) not on the exception but on the rule.

Sir Henry Maine (1822–1888) regarded the transformation from law based on privileges to law based on equality as the evolutionary principle that is ultimately decisive for every legal system. His formula “from status to contract” is nowadays regarded with skepticism because of its strong teleological connotations that do not leave much room for cultural diversity. But it still expresses a valid idea: Law displays a tendency toward formalization itself. The exceptions to the rule are also put into a legal form and are, consequently, incorporated by the law. It does not turn blind to the necessity of exceptions; however, as part of legal rules, they require an intense substantiation. The limits are typically reached when the exception is reinterpreted to become the rule. Such cases raise problems of justice that let law appear to be arbitrary and thus illegitimate. According to its own intention, law forms the counterpart to arbitrary decisions as it can otherwise not fulfill its function of protecting expectations even in the case of norm violations.

The problem of arbitrariness illustrates that law’s main function, its protection of expectations, can be concretized and differentiated into a regulating function and a directing function; one is oriented toward stability, the other one toward justice. Both functions are connected: To the same degree to which a political order is based on acceptance by the citizens, the question about the legitimacy of law gains in influence for a system’s stability. Examples of historically far-reaching consequences include the great revolutions of the United States (1776), France (1789), and Germany (1989), a comparatively young example. Below these major caesuras, the pursuit of legitimate law continues. At all times, this has also been a quest for (social) justice and has thus fostered the struggle for law in modern legal systems.

For some, the field of tension between the ideal of legal equality for all citizens and the socioeconomic inequalities in modern societies presents itself as a productive challenge; to others, on the contrary, law is merely an instrument that is supposed to conceal or stabilize social inequalities in the interest of the ruling classes. These differing ideological views explain that, with institutionalization progressing, law is attributed further functions within the political system: on the one side, the function of authorizing political power; on the other side, the function of controlling political power and civilizing it. Historically, the state’s gain in power by the combining of law and politics has evoked countervailing powers that are, nevertheless, dependent on law: Liberalism and constitutionalism see law as a suitable instrument for confining politics’ claim to authority. This balancing of law and politics is based on a constant mutual adjustment that has led to a considerable juridification in all areas of modern social life.

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