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How to Write a First-Class Law Essay

Studying law at university entails lots of essay writing. This article takes you through the key steps to writing a top law essay.

Writing a law essay can be a challenging task. As a law student, you’ll be expected to analyse complex legal issues and apply legal principles to real-world scenarios. At the same time, you’ll need to be able to communicate your ideas clearly and persuasively. In this article, we’ll cover some top tips to guide you through the process of planning, researching, structuring and writing a first-class law essay with confidence. 

1. Start In Advance

Give yourself plenty of time to plan, research and write your law essay. Always aim to start your law essay as soon as you have the question. Leaving it until the last minute does not only create unnecessary stress, but it also leaves you insufficient time to write, reference and perfect your work.

2. Understand The Question

Do not begin until you fully comprehend the question. Take the time to read the question carefully and make sure that you understand what it’s asking you to do. Highlight key terms and annotate the question with definitions of key concepts and any questions that you have have. Think about how the question links back to what you’ve learned during your lectures or through your readings.

3. Conduct Thorough Research

Conducting thorough research around your topic is one of the most fundamental parts of the essay writing process. You should aim to use a range of relevant sources, such as cases, academic articles, books and any other legal materials. Ensure that the information you collect is taken from relevant, reliable and up to date sources. Use primary over secondary material as much as possible.

Avoid using outdated laws and obscure blog posts as sources of information. Always aim to choose authoritative sources from experts within the field, such as academics, politicians, lawyers and judges. Using high-quality and authoritative sources and demonstrating profound and critical insight into your topic are what will earn you top marks.

4. Write A Detailed Plan

Once you’ve done your research, it’s time to plan your essay. When writing your plan, you’ll need to create an outline that clearly identifies the main points that you wish to make throughout your article. Try to write down what you wish to achieve in each paragraph, what concepts you want to discuss and arguments you want to make.

Your outline should be organised in a clear, coherent and logical manner to ensure that the person grading your essay can follow your line of thought and arguments easily.  You may also wish to include headings and subheadings to structure your essay effectively This makes it easier when it comes to writing the essay as starting without a plan can get messy. The essay must answer the question and nothing but the question so ensure all of your points relate to it.

Start Writing Like A Lawyer

Read our legal writing tips now

5. Write A Compelling Introduction

A great introduction should, firstly, outline the research topic.  The introduction is one of the most crucial parts of the law essay as it sets the tone for the rest of the paper. It should capture the readers attention and provide the background context on the topic. Most importantly, it should state the thesis of your essay.

When writing your introduction, avoid simply repeating the given question. Secondly, create a road map for the reader, letting them know how the essay will approach the question. Your introduction must be concise. The main body of the essay is where you will go into detail.

6. Include A Strong Thesis Statement

Your thesis should clearly set out the argument you are going to be making throughout your essay and should normally go in the introduction. Your thesis should adopt a clear stance rather than being overly general or wishy-washy. To obtain the best grades, you’ll need to show a unique perspective based upon a critical analysis of the topic rather than adopting the most obvious point of view.

Once you’ve conducted your research and had a chance to reflect on your topic, ask yourself whether you can prove your argument within the given word count or whether you would need to adopt a more modest position for your paper. Always have a clear idea of what your thesis statement is before you begin writing the content of your essay. 

7. Present the Counter-argument

To demonstrate your deeper understanding of the topic, it’s important to show your ability to consider the counter-arguments and address them in a careful and reasoned manner. When presenting your counterarguments, aim to depict them in the best possible light, aiming to be fair and reasonable before moving on to your rebuttal. To ensure that your essay is convincing, you will need to have a strong rebuttal that explains why your argument is stronger and more persuasive. This will demonstrate your capacity for critical analysis, showing the reader that you have carefully considered differing perspectives before coming to a well-supported conclusion.

8. End With A Strong Conclusion

Your conclusion is your opportunity to summarise the key points made throughout your essay and to restate the thesis statement in a clear and concise manner.  Avoid simply repeating what has already been mentioned in the body of the essay. For top grades, you should use the conclusion as an opportunity to provide critical reflection and analysis on the topic. You may also wish to share any further insights or recommendations into alternative avenues to consider or implications for further research that could add value to the topic. 

9. Review The Content Of Your Essay

Make sure you factor in time to edit the content of your essay.  Once you’ve finished your first draft, come back to it the next day. Re-read your essay with a critical perspective. Do your arguments make sense? Do your paragraphs flow in a logical manner? You may also consider asking someone to read your paper and give you critical feedback. They may be able to add another perspective you haven’t considered or suggest another research paper that could add value to your essay. 

10. Proofread For Grammatical Mistakes

Once you’re happy with the content of your essay, the last step is to thoroughly proofread your essay for any grammatical errors. Ensure that you take time to ensure that there are no grammar, spelling or punctuation errors as these can be one of the easiest ways to lose marks. You can ask anyone to proofread your paper, as they would not necessarily need to have a legal background – just strong grammar and spelling skills! 

11. Check Submission Guidelines

Before submitting, ensure that your paper conforms with the style, referencing and presentation guidelines set out by your university. This includes the correct font, font size and line spacing as well as elements such as page numbers, table of content etc. Referencing is also incredibly important as you’ll need to make sure that you are following the correct referencing system chosen by your university. Check your university’s guidelines about what the word count is and whether you need to include your student identification number in your essay as well. Be thorough and don’t lose marks for minor reasons!

12. Use Legal Terms Accurately

Always make sure that you are using legal terms accurately throughout your essay. Check an authoritative resource if you are unsure of any definitions. While being sophisticated is great, legal jargon if not used correctly or appropriately can weaken your essay. Aim to be concise and to stick to the point. Don’t use ten words when only two will do.

12. Create a Vocabulary Bank

One recurring piece of advice from seasoned law students is to take note of phrases from books and articles, key definitions or concepts and even quotes from your professors. When it comes to writing your law essay, you will have a whole range of ideas and vocabulary that will help you to develop your understanding and thoughts on a given topic. This will make writing your law essay even easier!

13. Finally, Take Care of Yourself

Last but certainly not least, looking after your health can improve your attitude towards writing your law essay your coursework in general. Sleep, eat, drink and exercise appropriately. Take regular breaks and try not to stress. Do not forget to enjoy writing the essay!

Words by Karen Fulton

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Legal Research Strategy

Preliminary analysis, organization, secondary sources, primary sources, updating research, identifying an end point, getting help, about this guide.

This guide will walk a beginning researcher though the legal research process step-by-step. These materials are created with the 1L Legal Research & Writing course in mind. However, these resources will also assist upper-level students engaged in any legal research project.

How to Strategize

Legal research must be comprehensive and precise.  One contrary source that you miss may invalidate other sources you plan to rely on.  Sticking to a strategy will save you time, ensure completeness, and improve your work product. 

Follow These Steps

Running Time: 3 minutes, 13 seconds.

Make sure that you don't miss any steps by using our:

• Legal Research Strategy Checklist

If you get stuck at any time during the process, check this out:

• Ten Tips for Moving Beyond the Brick Wall in the Legal Research Process, by Marsha L. Baum

Understanding the Legal Questions

A legal question often originates as a problem or story about a series of events. In law school, these stories are called fact patterns. In practice, facts may arise from a manager or an interview with a potential client. Start by doing the following:

• Read anything you have been given
• Analyze the facts and frame the legal issues
• Assess what you know and need to learn
• Note the jurisdiction and any primary law you have been given
• Generate potential search terms

Jurisdiction

Legal rules will vary depending on where geographically your legal question will be answered. You must determine the jurisdiction in which your claim will be heard. These resources can help you learn more about jurisdiction and how it is determined:

• Legal Treatises on Jurisdiction
• LII Wex Entry on Jurisdiction

This map indicates which states are in each federal appellate circuit:

Getting Started

Once you have begun your research, you will need to keep track of your work. Logging your research will help you to avoid missing sources and explain your research strategy. You will likely be asked to explain your research process when in practice. Researchers can keep paper logs, folders on Westlaw or Lexis, or online citation management platforms.

Organizational Methods

Tracking with paper or excel.

Many researchers create their own tracking charts.  Be sure to include:

• Search Date
• Topics/Keywords/Search Strategy
• Citation to Relevant Source Found
• Save Locations
• Follow Up Needed

Consider using the following research log as a starting place: 

• Sample Research Log

Tracking with Folders

Westlaw and Lexis offer options to create folders, then save and organize your materials there.

• Lexis Advance Folders
• Westlaw Edge Folders

Tracking with Citation Management Software

For long term projects, platforms such as Zotero, EndNote, Mendeley, or Refworks might be useful. These are good tools to keep your research well organized. Note, however, that none of these platforms substitute for doing your own proper Bluebook citations. Learn more about citation management software on our other research guides:

• Guide to Zotero for Harvard Law Students by Harvard Law School Library Research Services Last Updated Sep 12, 2023 244 views this year

Types of Sources

There are three different types of sources: Primary, Secondary, and Tertiary.  When doing legal research you will be using mostly primary and secondary sources.  We will explore these different types of sources in the sections below.

Secondary sources often explain legal principles more thoroughly than a single case or statute. Starting with them can help you save time.

Secondary sources are particularly useful for:

• Learning the basics of a particular area of law
• Understanding key terms of art in an area
• Identifying essential cases and statutes

Consider the following when deciding which type of secondary source is right for you:

• Scope/Breadth
• Depth of Treatment
• Currentness/Reliability

For a deep dive into secondary sources visit:

• Secondary Sources: ALRs, Encyclopedias, Law Reviews, Restatements, & Treatises by Catherine Biondo Last Updated Apr 12, 2024 4171 views this year

Legal Dictionaries & Encyclopedias

Legal dictionaries.

Legal dictionaries are similar to other dictionaries that you have likely used before.

• Black's Law Dictionary
• Ballentine's Law Dictionary

Legal Encyclopedias

Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions and explaining terms of art. They also provide citations to primary law and relevant major law review articles.  

Here are the two major national encyclopedias:

• American Jurisprudence (AmJur) This resource is also available in Westlaw & Lexis .
• Corpus Juris Secundum (CJS)

Treatises are books on legal topics.  These books are a good place to begin your research.  They provide explanation, analysis, and citations to the most relevant primary sources. Treatises range from single subject overviews to deep treatments of broad subject areas.

It is important to check the date when the treatise was published. Many are either not updated, or are updated through the release of newer editions.

To find a relevant treatise explore:

• Legal Treatises by Subject by Catherine Biondo Last Updated Apr 12, 2024 3105 views this year

American Law Reports (ALR)

American Law Reports (ALR) contains in-depth articles on narrow topics of the law. ALR articles, are often called annotations. They provide background, analysis, and citations to relevant cases, statutes, articles, and other annotations. ALR annotations are invaluable tools to quickly find primary law on narrow legal questions.

This resource is available in both Westlaw and Lexis:

• American Law Reports on Westlaw (includes index)
• American Law Reports on Lexis

Law Reviews & Journals

Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers. They also contain comments, notes, or developments in the law written by law students. Articles often focus on new or emerging areas of law and may offer critical commentary. Some law reviews are dedicated to a particular topic while others are general. Occasionally, law reviews will include issues devoted to proceedings of panels and symposia.

Law review and journal articles are extremely narrow and deep with extensive references. 

To find law review articles visit:

• Law Journal Library on HeinOnline
• Law Reviews & Journals on LexisNexis
• Law Reviews & Journals on Westlaw

Restatements

Restatements are highly regarded distillations of common law, prepared by the American Law Institute (ALI). ALI is a prestigious organization comprised of judges, professors, and lawyers. They distill the "black letter law" from cases to indicate trends in common law. Resulting in a “restatement” of existing common law into a series of principles or rules. Occasionally, they make recommendations on what a rule of law should be.

Restatements are not primary law. However, they are considered persuasive authority by many courts.

Restatements are organized into chapters, titles, and sections.  Sections contain the following:

• a concisely stated rule of law,
• comments to clarify the rule,
• hypothetical examples,
• explanation of purpose, and
• exceptions to the rule  

To access restatements visit:

• American Law Institute Library on HeinOnline
• Restatements & Principles of the Law on LexisNexis
• Restatements & Principles of Law on Westlaw

Primary Authority

Primary authority is "authority that issues directly from a law-making body."   Authority , Black's Law Dictionary (11th ed. 2019).   Sources of primary authority include:

• Constitutions
• Statutes 

Regulations

Access to primary legal sources is available through:

• Bloomberg Law
• Free & Low Cost Alternatives

Statutes (also called legislation) are "laws enacted by legislative bodies", such as Congress and state legislatures.  Statute , Black's Law Dictionary (11th ed. 2019).

We typically start primary law research here. If there is a controlling statute, cases you look for later will interpret that law. There are two types of statutes, annotated and unannotated.

Annotated codes are a great place to start your research. They combine statutory language with citations to cases, regulations, secondary sources, and other relevant statutes. This can quickly connect you to the most relevant cases related to a particular law. Unannotated Codes provide only the text of the statute without editorial additions. Unannotated codes, however, are more often considered official and used for citation purposes.

For a deep dive on federal and state statutes, visit:

• Statutes: US and State Codes by Mindy Kent Last Updated Apr 12, 2024 2498 views this year
• 50 State Surveys

Want to learn more about the history or legislative intent of a law?  Learn how to get started here:

• Legislative History Get an introduction to legislative histories in less than 5 minutes.
• Federal Legislative History Research Guide

Regulations are rules made by executive departments and agencies. Not every legal question will require you to search regulations. However, many areas of law are affected by regulations. So make sure not to skip this step if they are relevant to your question.

To learn more about working with regulations, visit:

• Administrative Law Research by AJ Blechner Last Updated Apr 12, 2024 521 views this year

Case Basics

In many areas, finding relevant caselaw will comprise a significant part of your research. This Is particularly true in legal areas that rely heavily on common law principles.

Running Time: 3 minutes, 10 seconds.

Unpublished Cases

Up to  86% of federal case opinions are unpublished. You must determine whether your jurisdiction will consider these unpublished cases as persuasive authority. The Federal Rules of Appellate Procedure have an overarching rule, Rule 32.1  Each circuit also has local rules regarding citations to unpublished opinions. You must understand both the Federal Rule and the rule in your jurisdiction.

• Federal and Local Rules of Appellate Procedure 32.1 (Dec. 2021).
• Type of Opinion or Order Filed in Cases Terminated on the Merits, by Circuit (Sept. 2021).

Each state also has its own local rules which can often be accessed through:

• State Bar Associations
• State Courts Websites

First Circuit

• First Circuit Court Rule 32.1.0

Second Circuit

• Second Circuit Court Rule 32.1.1

Third Circuit

• Third Circuit Court Rule 5.7

Fourth Circuit

• Fourth Circuit Court Rule 32.1

Fifth Circuit

• Fifth Circuit Court Rule 47.5

Sixth Circuit

• Sixth Circuit Court Rule 32.1

Seventh Circuit

• Seventh Circuit Court Rule 32.1

Eighth Circuit

• Eighth Circuit Court Rule 32.1A

Ninth Circuit

• Ninth Circuit Court Rule 36-3

Tenth Circuit

• Tenth Circuit Court Rule 32.1

Eleventh Circuit

• Eleventh Circuit Court Rule 32.1

D.C. Circuit

• D.C. Circuit Court Rule 32.1

Federal Circuit

• Federal Circuit Court Rule 32.1

Finding Cases

Headnotes show the key legal points in a case. Legal databases use these headnotes to guide researchers to other cases on the same topic. They also use them to organize concepts explored in cases by subject. Publishers, like Westlaw and Lexis, create headnotes, so they are not consistent across databases.

Headnotes are organized by subject into an outline that allows you to search by subject. This outline is known as a "digest of cases." By browsing or searching the digest you can retrieve all headnotes covering a particular topic. This can help you identify particularly important cases on the relevant subject.

Running Time: 4 minutes, 43 seconds.

Each major legal database has its own digest:

• Topic Navigator (Lexis)
• Key Digest System (Westlaw)

Start by identifying a relevant topic in a digest.  Then you can limit those results to your jurisdiction for more relevant results.  Sometimes, you can keyword search within only the results on your topic in your jurisdiction.  This is a particularly powerful research method.

One Good Case Method

After following the steps above, you will have identified some relevant cases on your topic. You can use good cases you find to locate other cases addressing the same topic. These other cases often apply similar rules to a range of diverse fact patterns.

• in Lexis click "More Like This Headnote"
• in Westlaw click "Cases that Cite This Headnote"

to focus on the terms of art or key words in a particular headnote. You can use this feature to find more cases with similar language and concepts.  ​

Ways to Use Citators

A citator is "a catalogued list of cases, statutes, and other legal sources showing the subsequent history and current precedential value of those sources.  Citators allow researchers to verify the authority of a precedent and to find additional sources relating to a given subject." Citator , Black's Law Dictionary (11th ed. 2019).

Each major legal database has its own citator.  The two most popular are Keycite on Westlaw and Shepard's on Lexis.

• Keycite Information Page
• Shepard's Information Page

Making Sure Your Case is Still Good Law

This video answers common questions about citators:

For step-by-step instructions on how to use Keycite and Shepard's see the following:

• Shepard's Video Tutorial
• Shepard's Handout
• Shepard's Editorial Phrase Dictionary
• KeyCite Video Tutorial
• KeyCite Handout
• KeyCite Editorial Phrase Dictionary

Using Citators For

Citators serve three purposes: (1) case validation, (2) better understanding, and (3) additional research.

Case Validation

Is my case or statute good law?

• Parallel citations
• Prior and subsequent history
• Negative treatment suggesting you should no longer cite to holding.

Better Understanding

Has the law in this area changed?

• Later cases on the same point of law
• Positive treatment, explaining or expanding the law.
• Negative Treatment, narrowing or distinguishing the law.

Track Research

Who is citing and writing about my case or statute?

• Secondary sources that discuss your case or statute.
• Cases in other jurisdictions that discuss your case or statute.

Knowing When to Start Writing

For more guidance on when to stop your research see:

• Terminating Research, by Christina L. Kunz

Automated Services

Automated services can check your work and ensure that you are not missing important resources. You can learn more about several automated brief check services.  However, these services are not a replacement for conducting your own diligent research .

• Automated Brief Check Instructional Video

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• Last Updated: Sep 21, 2023 2:56 PM
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Law Essay Examples

10+ Winning Law Essays Examples | Boost Your Grades Now

Published on: May 8, 2023

Last updated on: Jan 30, 2024

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Are you looking for inspiration to get started on your law essay? If so keep reading! 

As a law student, you're expected to have excellent writing skills. Your essays should be well-structured, articulate, and persuasive. However, it's not always easy to know where to start or how to approach your writing. 

That's where law essay examples come in - they provide a valuable resource that can help guide you through the process.

In this blog, we'll explore the law essay examples on different topics. Moreover, we will analyze the structure and format of a law essay. 

So, let's get started!

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What is a Law Essay? 

A law essay is a written assignment that requires the writer to analyze and evaluate legal issues, cases, or concepts. 

The purpose of a law essay is to demonstrate a student's understanding of the subject matter. It also shows the student's ability to present an argument in a concise manner. 

Want to gain more knowledge on how to write a high-quality law essay? Check out this video for insightful tips!

University Law Essay Examples

Let's take a closer look at some excellent university law essay examples that highlight the proper use of references.

Law Reflective Essay Example

Law Enforcement Essay Example

Law Reform Essay Example

Law Research Essay Example

Below, you will find some additional law essay samples that you may come across in your university assignments.

First Class Law Essay Example

Law School Transfer Essay Example

Law School Why X Essay Example

Law Essay Format and Structure

A well-structured and formatted law essay is essential for receiving high marks. Here are some key elements that should be included:

1. Introduction

• The introduction should introduce the main arguments of the essay.
• The first sentence should be attention-grabbing.
• The introduction should provide concise information about the broader significance of the topic.
• It should lead into the body of the essay.
• Each paragraph should have a clear topic sentence.
• The paragraph should include supporting evidence and analysis.
• The paragraphs should be logically connected.

3. Conclusion:

• The conclusion should summarize the main arguments of the essay.
• It should not introduce new information.
• It should demonstrate the significance of the arguments.

Let's take a look at an example of a well-structured law essay:

Check out the following pdfs for a better understanding:

Law Essay Format pdf

Law Essay Introduction Example pdf

Specific Law Essay Topics

Let's take a look at some specific law essay topic examples that can provide a foundation for deeper analysis.

Criminal Law Essay Example

Case Law Essay Example

Law Case Analysis Essay Example

Contract Law Essay Example

Ilac Law Essay Example

Public Law Essay Example

Critical Analysis Law Essay Example

Contract Law Essay Example Offer Acceptance

Additional Law Essay Samples

Let's explore some of the most frequently assigned law essay topics for writing assignments.

Development of Welfare Legislation for Animal Testing

Legal Analysis of Donald Trump's Leadership Style

Torts of Negligence and Battery in Medical Law

The Frustration of Contract in the Coronation Cases

Effectiveness of Gun Control Laws in the United States

The Unjust Intersection of Police Brutality and Racism

Nike Faces Gender Discrimination Lawsuit

A Dream to Become a Lawyer

Hate Crime Laws

Law Essay Writing Tips and Best Practices

Writing a law essay can be a rewarding and fulfilling experience. Here are some tips and best practices to help you write a successful law essay:

• Understand the assignment: Before you start writing your essay, make sure you understand the assignment requirements. This includes the topic, formatting requirements, and any specific instructions from your professor.
• Research extensively: A good law essay requires thorough research on the topic. Make use of primary and secondary sources, such as case law, legal journals, and academic articles, to support your arguments.
• Plan your essay: Before you start writing, plan your essay structure. This includes an introduction, body paragraphs, and a conclusion. The body paragraphs should be organized logically, with each paragraph focusing on a specific point or argument.
• Use clear and concise language: The language used in a law essay should be clear, concise, and precise. Avoid using jargon or technical terms that may be unfamiliar to the reader. Use plain language that is easy to understand.
• Cite your sources: In a law essay, it is important to cite your sources properly. Use the appropriate citation style, such as APA or MLA.  Make sure to include a bibliography or reference list at the end of your essay.
• Use reputable sources: Ensure that your sources are reputable and reliable. Use academic databases, such as LexisNexis or Westlaw, to find legal cases and journal articles.
• Seek feedback: It can be helpful to seek feedback from your professor or a peer before submitting your essay. This can help you identify any areas that need improvement and ensure that your arguments are persuasive and well-supported

Common Mistakes To Avoid In Law Essay Writing

Here are some most common mistakes to avoid when writing a law essay:

• Failing to answer the question: Make sure that your essay clearly answers the question posed.
• Lack of clarity: Ensure that your essay is clear, concise, and well-organized.
• Plagiarism: Avoid plagiarism by properly citing all sources used in your essay.
• Inaccurate legal analysis: Ensure that your legal analysis is accurate and supported by legal authority.
• Poor syntax: Use proper grammar and syntax to ensure that your essay is well-written and easy to understand.

How To Edit And Proofread Your Law Essay 

Here are some great tips to perfect your law essay:

• Take a break: Take a break before editing and proofreading to ensure a fresh perspective.
• Review for clarity: Review your essay for clarity, ensuring that your arguments are well-supported and easy to understand.
• Check for accuracy: Check your essay for accuracy, including legal analysis and citations.
• Check for grammar and spelling: Check for proper grammar, spelling, and punctuation.
• Read aloud: Read your essay aloud to catch any errors or awkward phrasing.

To sum it up!

Writing a law essay requires careful planning, extensive research, and attention to detail. Throughout this blog, we have explored different law essay examples. We have also discussed the format and structure of a well-written law essay. 

By avoiding common mistakes and following best practices, you can write a successful essay. However, if you find yourself struggling with your law essay, do not hesitate to seek help from CollegeEssay.org .

We offer top-quality essay writing service to students at all academic levels. 

Get in touch with our law essay writing service now and say ' write my essay ' and let us help you achieve your academic goals!

Also, give our AI essay writing tools a try!

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As a Digital Content Strategist, Nova Allison has eight years of experience in writing both technical and scientific content. With a focus on developing online content plans that engage audiences, Nova strives to write pieces that are not only informative but captivating as well.

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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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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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How to do legal research in 3 steps

Knowing where to start a difficult legal research project can be a challenge. But if you already understand the basics of legal research, the process can be significantly easier — not to mention quicker.

Solid research skills are crucial to crafting a winning argument. So, whether you are a law school student or a seasoned attorney with years of experience, knowing how to perform legal research is important — including where to start and the steps to follow.

What is legal research, and where do I start? 

Black's Law Dictionary defines legal research as “[t]he finding and assembling of authorities that bear on a question of law." But what does that actually mean? It means that legal research is the process you use to identify and find the laws — including statutes, regulations, and court opinions — that apply to the facts of your case.

In most instances, the purpose of legal research is to find support for a specific legal issue or decision. For example, attorneys must conduct legal research if they need court opinions — that is, case law — to back up a legal argument they are making in a motion or brief filed with the court.

Alternatively, lawyers may need legal research to provide clients with accurate legal guidance . In the case of law students, they often use legal research to complete memos and briefs for class. But these are just a few situations in which legal research is necessary.

Why is legal research hard?

Each step — from defining research questions to synthesizing findings — demands critical thinking and rigorous analysis.

1. Identifying the legal issue is not so straightforward. Legal research involves interpreting many legal precedents and theories to justify your questions. Finding the right issue takes time and patience.

2. There's too much to research. Attorneys now face a great deal of case law and statutory material. The sheer volume forces the researcher to be efficient by following a methodology based on a solid foundation of legal knowledge and principles.

3. The law is a fluid doctrine. It changes with time, and staying updated with the latest legal codes, precedents, and statutes means the most resourceful lawyer needs to assess the relevance and importance of new decisions.

Legal research can pose quite a challenge, but professionals can improve it at every stage of the process . 

Step 1: Key questions to ask yourself when starting legal research

Before you begin looking for laws and court opinions, you first need to define the scope of your legal research project. There are several key questions you can use to help do this.

What are the facts?

Always gather the essential facts so you know the “who, what, why, when, where, and how” of your case. Take the time to write everything down, especially since you will likely need to include a statement of facts in an eventual filing or brief anyway. Even if you don't think a fact may be relevant now, write it down because it may be relevant later. These facts will also be helpful when identifying your legal issue.

What is the actual legal issue?

You will never know what to research if you don't know what your legal issue is. Does your client need help collecting money from an insurance company following a car accident involving a negligent driver? How about a criminal case involving excluding evidence found during an alleged illegal stop?

No matter the legal research project, you must identify the relevant legal problem and the outcome or relief sought. This information will guide your research so you can stay focused and on topic.

What is the relevant jurisdiction?

Don't cast your net too wide regarding legal research; you should focus on the relevant jurisdiction. For example, does your case deal with federal or state law? If it is state law, which state? You may find a case in California state court that is precisely on point, but it won't be beneficial if your legal project involves New York law.

Where to start legal research: The library, online, or even AI?

In years past, future attorneys were trained in law school to perform research in the library. But now, you can find almost everything from the library — and more — online. While you can certainly still use the library if you want, you will probably be costing yourself valuable time if you do.

When it comes to online research, some people start with free legal research options , including search engines like Google or Bing. But to ensure your legal research is comprehensive, you will want to use an online research service designed specifically for the law, such as Westlaw . Not only do online solutions like Westlaw have all the legal sources you need, but they also include artificial intelligence research features that help make quick work of your research

Step 2: How to find relevant case law and other primary sources of law

Now that you have gathered the facts and know your legal issue, the next step is knowing what to look for. After all, you will need the law to support your legal argument, whether providing guidance to a client or writing an internal memo, brief, or some other legal document.

But what type of law do you need? The answer: primary sources of law. Some of the more important types of primary law include:

• Case law, which are court opinions or decisions issued by federal or state courts
• Statutes, including legislation passed by both the U.S. Congress and state lawmakers
• Regulations, including those issued by either federal or state agencies
• Constitutions, both federal and state

Searching for primary sources of law

So, if it's primary law you want, it makes sense to begin searching there first, right? Not so fast. While you will need primary sources of law to support your case, in many instances, it is much easier — and a more efficient use of your time — to begin your search with secondary sources such as practice guides, treatises, and legal articles.

Why? Because secondary sources provide a thorough overview of legal topics, meaning you don't have to start your research from scratch. After secondary sources, you can move on to primary sources of law.

For example, while no two legal research projects are the same, the order in which you will want to search different types of sources may look something like this:

• Secondary sources . If you are researching a new legal principle or an unfamiliar area of the law, the best place to start is secondary sources, including law journals, practice guides , legal encyclopedias, and treatises. They are a good jumping-off point for legal research since they've already done the work for you. As an added bonus, they can save you additional time since they often identify and cite important statutes and seminal cases.
• Case law . If you have already found some case law in secondary sources, great, you have something to work with. But if not, don't fret. You can still search for relevant case law in a variety of ways, including running a search in a case law research tool.

Once you find a helpful case, you can use it to find others. For example, in Westlaw, most cases contain headnotes that summarize each of the case's important legal issues. These headnotes are also assigned a Key Number based on the topic associated with that legal issue. So, once you find a good case, you can use the headnotes and Key Numbers within it to quickly find more relevant case law.

• Statutes and regulations . In many instances, secondary sources and case law list the statutes and regulations relevant to your legal issue. But if you haven't found anything yet, you can still search for statutes and regs online like you do with cases.

Once you know which statute or reg is pertinent to your case, pull up the annotated version on Westlaw. Why the annotated version? Because the annotations will include vital information, such as a list of important cases that cite your statute or reg. Sometimes, these cases are even organized by topic — just one more way to find the case law you need to support your legal argument.

Keep in mind, though, that legal research isn't always a linear process. You may start out going from source to source as outlined above and then find yourself needing to go back to secondary sources once you have a better grasp of the legal issue. In other instances, you may even find the answer you are looking for in a source not listed above, like a sample brief filed with the court by another attorney. Ultimately, you need to go where the information takes you.

Step 3: Make sure you are using ‘good’ law

One of the most important steps with every legal research project is to verify that you are using “good" law — meaning a court hasn't invalidated it or struck it down in some way. After all, it probably won't look good to a judge if you cite a case that has been overruled or use a statute deemed unconstitutional. It doesn't necessarily mean you can never cite these sources; you just need to take a closer look before you do.

The simplest way to find out if something is still good law is to use a legal tool known as a citator, which will show you subsequent cases that have cited your source as well as any negative history, including if it has been overruled, reversed, questioned, or merely differentiated.

For instance, if a case, statute, or regulation has any negative history — and therefore may no longer be good law — KeyCite, the citator on Westlaw, will warn you. Specifically, KeyCite will show a flag or icon at the top of the document, along with a little blurb about the negative history. This alert system allows you to quickly know if there may be anything you need to worry about.

Some examples of these flags and icons include:

• A red flag on a case warns you it is no longer good for at least one point of law, meaning it may have been overruled or reversed on appeal.
• A yellow flag on a case warns that it has some negative history but is not expressly overruled or reversed, meaning another court may have criticized it or pointed out the holding was limited to a specific fact pattern.
• A blue-striped flag on a case warns you that it has been appealed to the U.S. Supreme Court or the U.S. Court of Appeals.
• The KeyCite Overruling Risk icon on a case warns you that the case may be implicitly undermined because it relies on another case that has been overruled.

Another bonus of using a citator like KeyCite is that it also provides a list of other cases that merely cite your source — it can lead to additional sources you previously didn't know about.

Perseverance is vital when it comes to legal research

Given that legal research is a complex process, it will likely come as no surprise that this guide cannot provide everything you need to know.

There is a reason why there are entire law school courses and countless books focused solely on legal research methodology. In fact, many attorneys will spend their entire careers honing their research skills — and even then, they may not have perfected the process.

So, if you are just beginning, don't get discouraged if you find legal research difficult — almost everyone does at first. With enough time, patience, and dedication, you can master the art of legal research.

Thomson Reuters originally published this article on November 10, 2020.

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Law Search Guide: Law Search Example

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Jill and June are twin law students undertaking their first research assignment. They are given this question:

Select one case of your choice delivered by the High Court of Australia, write a case note on the decision. In your case note explain the facts of the case, identify the legal issues, explain the outcome, and explain if and how the case changed the law. 

Even though they are twins, they have two very different ways of searching for their assignments. Read below about how each twin undertakes their search. What method will you try for your assignment search?

Jill reads through the question several times, so she is very clear on what she has to do.

She reads through the marking rubric in her unit and attends the lecture where her lecturer explains how it is important for this topic to search beyond the case. Students will need to use journal articles to help them understand the case and see if and how it has changed the common law. 

Jill understands that searching for the assignment is only one aspect of the overall task. She uses the Assignment Scheduler to write up her study schedule to include enough time to search, write and proofread before submitting before the due date.  

Jill starts her search with a quick Google search and chooses the keywords 'famous high court case australia'.

Jill clicks the second link  Top 10 Most Influential Court Cases of the Last 40 Years . She notes that the page was created by The College of Law , which may be ok as an initial source, but it was published in 2014, so won't have any more recent cases.

From the list, Jill decides to choose an older case as it may be easier to find information on it as there may be more time to publish information on it. Reading through the list of cases, Jill is interested in the cases of Dietrich v The Queen from 1992. She quickly looks through the summary of the legal issues, and she thinks the right to a fair trial will be interesting to research. 

Jill then types 'dietrich v the queen' in Google and reads a Wikipedia entry that gives her the citation [1992] HCA 57 and a quick overview of what the case was about.

Searching for Case Law in Westlaw Australia 

Jill then wants to check out a more detailed legal summary of the case to understand the legal issues. Jill remembers the Library workshop she did early in the semester; Jill knows she can get some easy-to-read case summaries through Westlaw Australia .

Jill does a Google search for the Law Guide by typing the keywords 'Law Guide CDU' into the search box. The Law Guide is the first result, and Jill finds the link to Westlaw Australia on the page.

Jill copies and pastes the citation she found online into the citation search box, which brings her back to the case. From Westlaw Australia , Jill can read the case summary/digest, and she can also download the full-text case as a PDF.

Jill sees the PDF to the  Commonwealth Law Reports  copy, and she downloads this version as it is the authorised report and the one she will need when using the AGLC.

She  saves it to a folder titled 'Assignment 1' on her laptop . Jill knows it is easier to save the case as a PDF now than to find all the sources again, so she creates a new folder for every assignment. Later she can print it out, highlight important parts of the case, and make her notes. 

To make a good case note, Jill wants to determine how the case is being used today. She goes back to the results in Westlaw Australia  and uses the top menu in the case to see the history and negative treatments and citing references of the case. 

Searching for Journals in Google Scholar and Library Search  

Jill notes that she will have to go beyond just finding the case and will need to find out  more about the right to a fair trial. She clicks on 'Citing References' at the top of the Westlaw Australia page and selects 'secondary sources' from the drop-down menu. From here Jill can find secondary material to help her analyse the case. 

Jill also quickly searches in  Google Scholar  using the keywords: "fair trial" " Dietrich v the queen". Jill uses double quotation marks to group her keywords together for better results. Jill selects three journal articles:

• A Constitutional Right to a Fair Trial? Implications for the Report of the Australian Criminal Justice System ,
• Dietrich, the High Court and Unfair Trials  and
• Difficulty in Obtaining a Fair Trial in Terrorism Cases .

All of the articles have quick summaries at the top so Jill can scan through them easily; experts write them, and the citation details at the top of the articles make them easy to cite using the AGLC. 

Jill realises that she may need more resources for her assignment, so she searches Library Search from the Library home page . She types in the keywords: 'right fair trial australia'. Jill selects some additional articles: 

• The Dietrich Dilemma   
• Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial  
• The Truth Can Cost Too Much: The Principles of a Fair Trial .

Jill saves them in her assignment folder to read later.  She chooses these articles as they are about Dietrich, and in academic journals. These are useful articles for Jill as they help her analyse what the case was about, provide her with context, and explain the main legal issues.   

Writing 

Jill has a good collection of resources and can now start writing. Jill reads through the material and makes notes.

She summarised the information in her own words and started to group the main ideas to form paragraphs in her essay. She uses the Resource Review Grid  to help her summarise her resources ready to write. Jill plans out her essay using the AGLC Essay Template and makes sure she has covered all the topics needed for a case note. 

When Jill starts to write her assignment, she refers to the authorised version of the Dietrich  case from the Commonwealth Law Reports; she  mentions the primary sources of law, including the Australian Constitution and the other relevant cases. Jill also relies on academic-quality journal articles to help interpret legal issues. Jill doesn't rely on the information from her initial Google or Wikipedia search; she now has better resources. 

Jill finishes her writing a couple of days before the assignment is due. This gives her time to read through her essay a couple of times; she checks her references correctly using the AGLC and uses the AGLC Checklist to help her. After she has reviewed her essay a couple of times, Jill submits her assignment on time. 

Final Result 

Jill gets her mark back a couple of weeks later. She got an HD!  The comments on her essay indicate that she got excellent marks due to her quality research, her selection of resources, and the academic quality of her work. Jill is glad she saved time searching by starting with some easy searches and then building up to academic quality material; it saved her time reading and helped her pick out the legal issues.  

June reads through the assignment once and is really confused.

She is unsure where to start but hears from another student that they will look at the He Kaw Teh case.  June decides that she will do this too.

June assumes that she has to talk about why the matter was in court, she hasn't been going to the lectures, but she will spend lots of time on this assignment and find lots of different resources to make up for it.  

Web Search 

June starts her search by typing the case name into Google and gets to the Wikipedia page He Kaw Teh v The Queen . June decides that this information summarises the case enough for her and decides to copy and paste the information into her essay. June cites Wikipedia and the source; she doesn't have time to learn the AGLC, so she pastes the link directly into the document.

June still isn't quite sure about what the main point of the case is but decides to get some information on drug trafficking in Australia as this seems to be the main issue. She  knows she needs to go beyond just reading the case, as her sister Jill keeps reminding her.  

June  does a Google Search by typing in 'what's the deal with drugs in Australia?'  She finds some web pages, including information such as;

• What It's Like to Deal Drugs in Australia's Capital City
• HealthDirect  
•   Armstrong Legal .

It takes a while for June to read through all the web pages, and she keeps searching to add more resources for her assignment. 

June knows referencing is important, so she records all her resources by copying the URL and pasting it into her references list at the end of her essay. This way, she will know where the web pages came from. 

June decides that she needs more information on the case, so she goes back and conducts  a Google search using the case name. She finds a case summary of UniStudy Guides .  She can see that this information originally comes from a textbook but cites this website for the case.

June also finds some criminal law summary notes from a student VIP site, and some cram notes that briefly mention the case.

June does find a version of the case on Jade but gives up as the case is way too long to read through when she has to do all the research. 

June has spent a fair amount of time surfing the web and decides the quickest way for her to finish the assignment is to copy the best parts of her resources into her assignment to form her essay. When copying from one document to the next, June gets mixed up about which lines come from which sources, some have links to the websites, and some don't. 

June leaves the main part of the writing until the day before the assignment is due, so she cannot properly proofread or update her citations to fit the AGLC Style. 

June is very surprised when she receives a failing grade! Where did it all go wrong?

The comments on her paper reveal to June that she missed the main issue of the case. If June had spent more time reading through the rubric, she would have had a better understanding of how her case note was going to be marked. Attending the tutorials and lectures would have given context to the assignment, and it would have given June a chance to ask questions and clarify what she needed to do in the assignment. 

Even though June's case did involve importing heroin into Australia, the main legal issue was that of intent or 'mens rea' or intent. Searching skills are really important, but it would have helped June if she had been clear on what she had to research in the first place.

Similarly, because June didn't look at the authorised case, she didn't get the benefit of reading a full case summary. She also didn't have the benefit of having the case history and clear evidence that demonstrated if the case was still being used in the law today. 

June also lost marks because her resources were of poor quality; using the web/internet search for the initial stage of research is useful; however, when selecting resources to include in an academic essay, June would have been better off looking at academic sources to support her arguments.

June also lost marks by not following the AGLC. A list of URLs at the end of the essay led to her easily missing marks compared to placing them in the correct format. It also makes it hard for her marker to see the sources used and how they relate to each sentence. 

The most serious problem with June's essay was with what she was writing; she was mostly copying and pasting from the various sources she found without quotation marks and without analysis.

June should have used her own words, along with some limited quotations, to explain what the case was about. Copying and pasting from other sources, with or without citation, is poor academic practice. This has also raised an issue with plagiarism, and June may have breached academic integrity. She is called in to talk to her lecturer under the Student Breach of Academic Integrity Procedure.  

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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

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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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• Black Americans Have a Clear Vision for Reducing Racism but Little Hope It Will Happen

Many say key U.S. institutions should be rebuilt to ensure fair treatment

Table of contents.

• Black Americans see little improvement in their lives despite increased national attention to racial issues
• Few Black adults expect equality for Black people in the U.S.
• Black adults say racism and police brutality are extremely big problems for Black people in the U.S.
• Personal experiences with discrimination are widespread among Black Americans
• Black adults see voting as the most effective strategy for moving toward equality in the U.S.
• Some Black adults see Black businesses and communities as effective remedies for inequality
• Black Americans say race matters little when choosing political allies
• The legacy of slavery affects Black Americans today
• Most Black adults agree the descendants of enslaved people should be repaid
• The types of repayment Black adults think would be most helpful
• Responsibility for reparations and the likelihood repayment will occur
• Black adults say the criminal justice system needs to be completely rebuilt
• Black adults say political, economic and health care systems need major changes to ensure fair treatment
• Most Black adults say funding for police departments should stay the same or increase
• Acknowledgments
• Appendix: Supplemental tables
• The American Trends Panel survey methodology

Pew Research Center conducted this analysis to understand the nuances among Black people on issues of racial inequality and social change in the United States. This in-depth survey explores differences among Black Americans in their views on the social status of the Black population in the U.S.; their assessments of racial inequality; their visions for institutional and social change; and their outlook on the chances that these improvements will be made. The analysis is the latest in the Center’s series of in-depth surveys of public opinion among Black Americans (read the first, “ Faith Among Black Americans ” and “ Race Is Central to Identity for Black Americans and Affects How They Connect With Each Other ”).

The online survey of 3,912 Black U.S. adults was conducted Oct. 4-17, 2021. Black U.S. adults include those who are single-race, non-Hispanic Black Americans; multiracial non-Hispanic Black Americans; and adults who indicate they are Black and Hispanic. The survey includes 1,025 Black adults on Pew Research Center’s American Trends Panel (ATP) and 2,887 Black adults on Ipsos’ KnowledgePanel. Respondents on both panels are recruited through national, random sampling of residential addresses.

Recruiting panelists by phone or mail ensures that nearly all U.S. Black adults have a chance of selection. This gives us confidence that any sample can represent the whole population (see our Methods 101 explainer on random sampling). Here are the questions used for the survey of Black adults, along with its responses and methodology .

The terms “Black Americans,” “Black people” and “Black adults” are used interchangeably throughout this report to refer to U.S. adults who self-identify as Black, either alone or in combination with other races or Hispanic identity.

Throughout this report, “Black, non-Hispanic” respondents are those who identify as single-race Black and say they have no Hispanic background. “Black Hispanic” respondents are those who identify as Black and say they have Hispanic background. We use the terms “Black Hispanic” and “Hispanic Black” interchangeably. “Multiracial” respondents are those who indicate two or more racial backgrounds (one of which is Black) and say they are not Hispanic.

Respondents were asked a question about how important being Black was to how they think about themselves. In this report, we use the term “being Black” when referencing responses to this question.

In this report, “immigrant” refers to people who were not U.S. citizens at birth – in other words, those born outside the U.S., Puerto Rico or other U.S. territories to parents who were not U.S. citizens. We use the terms “immigrant,” “born abroad” and “foreign-born” interchangeably.

Throughout this report, “Democrats and Democratic leaners” and just “Democrats” both refer to respondents who identify politically with the Democratic Party or who are independent or some other party but lean toward the Democratic Party. “Republicans and Republican leaners” and just “Republicans” both refer to respondents who identify politically with the Republican Party or are independent or some other party but lean toward the Republican Party.

Respondents were asked a question about their voter registration status. In this report, respondents are considered registered to vote if they self-report being absolutely certain they are registered at their current address. Respondents are considered not registered to vote if they report not being registered or express uncertainty about their registration.

To create the upper-, middle- and lower-income tiers, respondents’ 2020 family incomes were adjusted for differences in purchasing power by geographic region and household size. Respondents were then placed into income tiers: “Middle income” is defined as two-thirds to double the median annual income for the entire survey sample. “Lower income” falls below that range, and “upper income” lies above it. For more information about how the income tiers were created, read the methodology .

More than a year after the murder of George Floyd and the national protests, debate and political promises that ensued, 65% of Black Americans say the increased national attention on racial inequality has not led to changes that improved their lives. 1 And 44% say equality for Black people in the United States is not likely to be achieved, according to newly released findings from an October 2021 survey of Black Americans by Pew Research Center.

This is somewhat of a reversal in views from September 2020, when half of Black adults said the increased national focus on issues of race would lead to major policy changes to address racial inequality in the country and 56% expected changes that would make their lives better.

At the same time, many Black Americans are concerned about racial discrimination and its impact. Roughly eight-in-ten say they have personally experienced discrimination because of their race or ethnicity (79%), and most also say discrimination is the main reason many Black people cannot get ahead (68%).  

Even so, Black Americans have a clear vision for how to achieve change when it comes to racial inequality. This includes support for significant reforms to or complete overhauls of several U.S. institutions to ensure fair treatment, particularly the criminal justice system; political engagement, primarily in the form of voting; support for Black businesses to advance Black communities; and reparations in the forms of educational, business and homeownership assistance. Yet alongside their assessments of inequality and ideas about progress exists pessimism about whether U.S. society and its institutions will change in ways that would reduce racism.

These findings emerge from an extensive Pew Research Center survey of 3,912 Black Americans conducted online Oct. 4-17, 2021. The survey explores how Black Americans assess their position in U.S. society and their ideas about social change. Overall, Black Americans are clear on what they think the problems are facing the country and how to remedy them. However, they are skeptical that meaningful changes will take place in their lifetime.

Black Americans see racism in our laws as a big problem and discrimination as a roadblock to progress

Black adults were asked in the survey to assess the current nature of racism in the United States and whether structural or individual sources of this racism are a bigger problem for Black people. About half of Black adults (52%) say racism in our laws is a bigger problem than racism by individual people, while four-in-ten (43%) say acts of racism committed by individual people is the bigger problem. Only 3% of Black adults say that Black people do not experience discrimination in the U.S. today.

In assessing the magnitude of problems that they face, the majority of Black Americans say racism (63%), police brutality (60%) and economic inequality (54%) are extremely or very big problems for Black people living in the U.S. Slightly smaller shares say the same about the affordability of health care (47%), limitations on voting (46%), and the quality of K-12 schools (40%).

Aside from their critiques of U.S. institutions, Black adults also feel the impact of racial inequality personally. Most Black adults say they occasionally or frequently experience unfair treatment because of their race or ethnicity (79%), and two-thirds (68%) cite racial discrimination as the main reason many Black people cannot get ahead today.

Black Americans’ views on reducing racial inequality

Black Americans are clear on the challenges they face because of racism. They are also clear on the solutions. These range from overhauls of policing practices and the criminal justice system to civic engagement and reparations to descendants of people enslaved in the United States.

Changing U.S. institutions such as policing, courts and prison systems

About nine-in-ten Black adults say multiple aspects of the criminal justice system need some kind of change (minor, major or a complete overhaul) to ensure fair treatment, with nearly all saying so about policing (95%), the courts and judicial process (95%), and the prison system (94%).

Roughly half of Black adults say policing (49%), the courts and judicial process (48%), and the prison system (54%) need to be completely rebuilt for Black people to be treated fairly. Smaller shares say the same about the political system (42%), the economic system (37%) and the health care system (34%), according to the October survey.

While Black Americans are in favor of significant changes to policing, most want spending on police departments in their communities to stay the same (39%) or increase (35%). A little more than one-in-five (23%) think spending on police departments in their area should be decreased.

Black adults who favor decreases in police spending are most likely to name medical, mental health and social services (40%) as the top priority for those reappropriated funds. Smaller shares say K-12 schools (25%), roads, water systems and other infrastructure (12%), and reducing taxes (13%) should be the top priority.

Voting and ‘buying Black’ viewed as important strategies for Black community advancement

Black Americans also have clear views on the types of political and civic engagement they believe will move Black communities forward. About six-in-ten Black adults say voting (63%) and supporting Black businesses or “buying Black” (58%) are extremely or very effective strategies for moving Black people toward equality in the U.S. Smaller though still significant shares say the same about volunteering with organizations dedicated to Black equality (48%), protesting (42%) and contacting elected officials (40%).

Black adults were also asked about the effectiveness of Black economic and political independence in moving them toward equality. About four-in-ten (39%) say Black ownership of all businesses in Black neighborhoods would be an extremely or very effective strategy for moving toward racial equality, while roughly three-in-ten (31%) say the same about establishing a national Black political party. And about a quarter of Black adults (27%) say having Black neighborhoods governed entirely by Black elected officials would be extremely or very effective in moving Black people toward equality.

Most Black Americans support repayment for slavery

Discussions about atonement for slavery predate the founding of the United States. As early as 1672 , Quaker abolitionists advocated for enslaved people to be paid for their labor once they were free. And in recent years, some U.S. cities and institutions have implemented reparations policies to do just that.

Most Black Americans say the legacy of slavery affects the position of Black people in the U.S. either a great deal (55%) or a fair amount (30%), according to the survey. And roughly three-quarters (77%) say descendants of people enslaved in the U.S. should be repaid in some way.

Black adults who say descendants of the enslaved should be repaid support doing so in different ways. About eight-in-ten say repayment in the forms of educational scholarships (80%), financial assistance for starting or improving a business (77%), and financial assistance for buying or remodeling a home (76%) would be extremely or very helpful. A slightly smaller share (69%) say cash payments would be extremely or very helpful forms of repayment for the descendants of enslaved people.

Where the responsibility for repayment lies is also clear for Black Americans. Among those who say the descendants of enslaved people should be repaid, 81% say the U.S. federal government should have all or most of the responsibility for repayment. About three-quarters (76%) say businesses and banks that profited from slavery should bear all or most of the responsibility for repayment. And roughly six-in-ten say the same about colleges and universities that benefited from slavery (63%) and descendants of families who engaged in the slave trade (60%).

Black Americans are skeptical change will happen

Even though Black Americans’ visions for social change are clear, very few expect them to be implemented. Overall, 44% of Black adults say equality for Black people in the U.S. is a little or not at all likely. A little over a third (38%) say it is somewhat likely and only 13% say it is extremely or very likely.

They also do not think specific institutions will change. Two-thirds of Black adults say changes to the prison system (67%) and the courts and judicial process (65%) that would ensure fair treatment for Black people are a little or not at all likely in their lifetime. About six-in-ten (58%) say the same about policing. Only about one-in-ten say changes to policing (13%), the courts and judicial process (12%), and the prison system (11%) are extremely or very likely.

This pessimism is not only about the criminal justice system. The majority of Black adults say the political (63%), economic (62%) and health care (51%) systems are also unlikely to change in their lifetime.

Black Americans’ vision for social change includes reparations. However, much like their pessimism about institutional change, very few think they will see reparations in their lifetime. Among Black adults who say the descendants of people enslaved in the U.S. should be repaid, 82% say reparations for slavery are unlikely to occur in their lifetime. About one-in-ten (11%) say repayment is somewhat likely, while only 7% say repayment is extremely or very likely to happen in their lifetime.

Black Democrats, Republicans differ on assessments of inequality and visions for social change

Party affiliation is one key point of difference among Black Americans in their assessments of racial inequality and their visions for social change. Black Republicans and Republican leaners are more likely than Black Democrats and Democratic leaners to focus on the acts of individuals. For example, when summarizing the nature of racism against Black people in the U.S., the majority of Black Republicans (59%) say racist acts committed by individual people is a bigger problem for Black people than racism in our laws. Black Democrats (41%) are less likely to hold this view.

Black Republicans (45%) are also more likely than Black Democrats (21%) to say that Black people who cannot get ahead in the U.S. are mostly responsible for their own condition. And while similar shares of Black Republicans (79%) and Democrats (80%) say they experience racial discrimination on a regular basis, Republicans (64%) are more likely than Democrats (36%) to say that most Black people who want to get ahead can make it if they are willing to work hard.

On the other hand, Black Democrats are more likely than Black Republicans to focus on the impact that racial inequality has on Black Americans. Seven-in-ten Black Democrats (73%) say racial discrimination is the main reason many Black people cannot get ahead in the U.S, while about four-in-ten Black Republicans (44%) say the same. And Black Democrats are more likely than Black Republicans to say racism (67% vs. 46%) and police brutality (65% vs. 44%) are extremely big problems for Black people today.

Black Democrats are also more critical of U.S. institutions than Black Republicans are. For example, Black Democrats are more likely than Black Republicans to say the prison system (57% vs. 35%), policing (52% vs. 29%) and the courts and judicial process (50% vs. 35%) should be completely rebuilt for Black people to be treated fairly.

While the share of Black Democrats who want to see large-scale changes to the criminal justice system exceeds that of Black Republicans, they share similar views on police funding. Four-in-ten each of Black Democrats and Black Republicans say funding for police departments in their communities should remain the same, while around a third of each partisan coalition (36% and 37%, respectively) says funding should increase. Only about one-in-four Black Democrats (24%) and one-in-five Black Republicans (21%) say funding for police departments in their communities should decrease.

Among the survey’s other findings:

Black adults differ by age in their views on political strategies. Black adults ages 65 and older (77%) are most likely to say voting is an extremely or very effective strategy for moving Black people toward equality. They are significantly more likely than Black adults ages 18 to 29 (48%) and 30 to 49 (60%) to say this. Black adults 65 and older (48%) are also more likely than those ages 30 to 49 (38%) and 50 to 64 (42%) to say protesting is an extremely or very effective strategy. Roughly four-in-ten Black adults ages 18 to 29 say this (44%).

Gender plays a role in how Black adults view policing. Though majorities of Black women (65%) and men (56%) say police brutality is an extremely big problem for Black people living in the U.S. today, Black women are more likely than Black men to hold this view. When it comes to criminal justice, Black women (56%) and men (51%) are about equally likely to share the view that the prison system should be completely rebuilt to ensure fair treatment of Black people. However, Black women (52%) are slightly more likely than Black men (45%) to say this about policing. On the matter of police funding, Black women (39%) are slightly more likely than Black men (31%) to say police funding in their communities should be increased. On the other hand, Black men are more likely than Black women to prefer that funding stay the same (44% vs. 36%). Smaller shares of both Black men (23%) and women (22%) would like to see police funding decreased.

Income impacts Black adults’ views on reparations. Roughly eight-in-ten Black adults with lower (78%), middle (77%) and upper incomes (79%) say the descendants of people enslaved in the U.S. should receive reparations. Among those who support reparations, Black adults with upper and middle incomes (both 84%) are more likely than those with lower incomes (75%) to say educational scholarships would be an extremely or very helpful form of repayment. However, of those who support reparations, Black adults with lower (72%) and middle incomes (68%) are more likely than those with higher incomes (57%) to say cash payments would be an extremely or very helpful form of repayment for slavery.

• Black adults in the September 2020 survey only include those who say their race is Black alone and are non-Hispanic. The same is true only for the questions of improvements to Black people’s lives and equality in the United States in the October 2021 survey. Throughout the rest of this report, Black adults include those who say their race is Black alone and non-Hispanic; those who say their race is Black and at least one other race and non-Hispanic; or Black and Hispanic, unless otherwise noted. ↩

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EDITORIAL article

This article is part of the research topic.

Capturing Talk: The Institutional Practices Surrounding the Transcription of Spoken Language

Capturing Talk: The Institutional Practices Surrounding the Transcription of Spoken Language Editorial Transcripts are a ubiquitous feature of virtually all modern institutions, many of which would be unable to function without them. Nevertheless, transcription remains an under-researched subject -a situation that Capturing Talk: The Institutional Practices Surrounding the Transcription of Spoken Language seeks to remedy Provisionally Accepted

• 1 The University of Melbourne, Australia
• 2 Aston University, United Kingdom
• 3 Loughborough University, United Kingdom
• 4 Netherlands Institute for the Study of Crime and Law Enforcement (NSCR), Netherlands

The final, formatted version of the article will be published soon.

The initial aim of this Research Topic was to expose and examine under-appreciated features of 'entextualisation' (the process of representing spoken language as written text). One of these features is the fact that a transcript can only ever be a representation of speech, not a copy -and thus can never represent speech exactly. Another feature, well articulated by Sarangi (1998), is the unequal power over the process of transcription exercised by, on the one hand, the speakers whose voices are represented, and, on the other, by those controlling the transcription process. Where Sarangi's interest was mainly in health and social services institutions, the present Topic has a leaning towards legal institutions, where, arguably, these power inequalities are even more starkly contrasted -as demonstrated by the territorydefining volume Heffer et al (2013).Four of the papers in this Topic deal with police interviews, providing insight into differing practices across jurisdictions and type of interview (e.g. whether with witnesses or suspects). Several papers examine the practice of converting an interview into a 'statement', written up by the officers who conduct the interviews. Beginning with interviews with witnesses in England and Wales (E&W), Milne et al analyse a sample of such statements against transcripts produced by the researchers from an audio recording. The omissions, additions, distortions, and other errors in the police versions give cause for deep concern.An extended study analysing the creation of records of interviews with suspects in the Netherlands is recounted by Komter, which, again, contrasts transcripts prepared by police interviewers, with the author's transcripts prepared from audio recordings. Again, many concerning limitations on the police transcripts are observed and analysed. However, while her own transcripts are far more detailed, Komter acknowledges that she too is necessarily selective in what she chooses to represent, guided by the evolving research questions she seeks to investigate.One practice Komter discusses is that of police records presenting an interview as a monologue, in the voice of the interviewee, rather than as the question-and-answer dialogue it actually was. This practice is also investigated by Eerland and van Charldorp, again focusing on the Dutch context. These authors study how readers of the statements were influenced by three different styles of reporting (monologue, dialogue and narrative), with the troubling finding that the style of reporting affected perceptions of the statements' accuracy and comprehensibility.In many jurisdictions, police interviews with suspects are routinely audio-or videorecorded. However, this does not signal the end of problems with the representation of these high-stakes interactions. The last of our interview papers is Haworth et al, which summarises the key findings to date of an ongoing study of the transcription of electronic records of interviews with suspects in E&W. It demonstrates a range of problems with official police transcripts even when these ostensibly capture the dialogue "verbatim", and proposes that consistency, accuracy, and neutrality are the foundational features that should underpin any police interview transcript.A second group of papers studies transcription in non-legal institutional settings. Holder et al delves into two very large and highly structured organisations with serious security needs: NASA and the US Military. Both make extensive use of audio and video recordings capturing employees as they work -with transcripts produced either routinely, or on demand. The authors look into the two organisations' use of these transcripts, again comparing the official transcripts with their own transcripts of selected sections, using conversation analysis (CA) conventions.Park and Hepburn also examine CA-style transcripts. Taking as an example Rachel Mitchell's interview of US Supreme Court nominee Brett Kavanaugh about his alleged historical sexual misconduct, these authors compare the information retrievable from a richly detailed Jeffersonian transcript with an orthographic transcript that 'wipes out' or 'skates over' crucial aspects of speech used by speakers and listeners in constructing the message expressed by the speech.Another institutional use of transcripts covered in Capturing Talk concerns workers on the assembly line of a small factory in Sweden. Carlsson and Harari report an observation-and-interview study of the instruction manuals created by the workers. While they find much to commend in the retention of power by the creators and users of the manuals, the authors observe room for improvement in the 'information design' of the texts, recommending that consultation of linguistics experts could offer benefits.Voutilainen showcases the high quality of transcripts produced as an official record of the complex and challenging multicultural discussions of wide-ranging topics covered by the parliament in Finland. His account demonstrates how much thought, research and work goes into managing all the factors that need to be considered to create transcripts of this standard.In a return to the legal setting, a further group of papers examines transcripts of forensic audio, i.e. recordings of speech used as evidence in criminal trials. These are often of very poor quality, meaning that the transcript is intended not as a record of what was said, but as assistance to the court in determining what was said. Internationally, it is common for such transcripts to be provided by police investigating the case. While the courts recognise that police transcripts might contain errors, they rely on judges and/or juries being able to check the transcript against the audio. This ignores well-established research findings that the very act of checking a transcript can cause the listener to hear in line with the transcript, even if it is demonstrably false. For this reason, linguists sometimes recommend that, to ensure accuracy, transcripts should be produced by independent experts in transcription.However, mere independence may not be enough, and Love and Wright point out some important caveats around this recommendation. They had eight trained transcribers produce transcripts of poor-quality forensic-like audio -finding huge divergences in the content of the transcripts (less than 3% of conversational turns were transcribed consistently by all eight participants). This demonstrates that transcribing poor-quality forensic audio needs not just expertise in linguistics, but a managed, evidence-based method.Recently, a common response to any discussion of the difficulty of transcribing poorquality audio has been: 'Why not let AI do it?'. Loakes investigates this suggestion (with her study updated here to reflect very recent developments). She found that, while modern automatic speech recognition (ASR) systems are extremely efficient at transcribing good-quality audio, their performance on poor-quality forensic-like audio is low. Even the best-performing system, Whisper, scored only around 50% accuracy, with others far lower.Harrington also observed low scores for ASR transcripts of poor-quality forensic-like audio. Bridging two of the main areas considered in this Topic, she also trialled ASR on recordings of police interviews. The resulting transcripts, though not problem-free, score far higher than those of covert recordings, with errors easier to identify. Harrington makes innovative recommendations for how ASR could be used as a 'first draft' interview transcript, to be refined via human transcribers.Two papers consider the transcription and translation of forensic audio featuring languages other than English. Gilbert and Heydon look at translated transcripts of Vietnamese recordings used as evidence in a drug-related trial. They point out significant errors in the translations, but note that, unless the defence goes to the expense of hiring their own translator/interpreter, such errors are unlikely to be detected -and suggest that audio in languages other than English is often admitted with inadequately tested translations.Lai presents results of a large national survey of the practices and concerns of translators and interpreters who undertake forensic casework across a wide range of languages. Here, too, results indicate a number of important deficiencies in current practice for translating forensic audio featuring languages other than English -and Lai makes valuable recommendations for improvement.Finally, taking an authoritative overview of the key issues relevant to this Topic, Fraser provides a systematic review of interdisciplinary research on transcripts and transcription, and sets out a series of interacting factors that are known to affect a transcript's reliability. Using examples from a range of legal and academic situations, Fraser argues that, to ensure a transcript is suitable for its intended purpose, it is essential that all the factors be appropriately managed.Taken as a whole, Capturing Talk amplifies two observations made in both Sarangi (1998) andHeffer et al (2013), which, though not the exclusive focus of any individual paper, are highlighted throughout the Topic. First, the strong role that context inevitably plays in the interpretation of a transcript implies that 'recontextualisation' (using a transcript in a context other than the one it was created in) is likely to change its interpretation. Second, even the most expert linguistic analysis of transcripts produced by others is not itself a neutral or 'objective' activity. However, this does not mean that such analysis must be 'subjective' in any limiting sense. Rather it indicates a need for transcripts to be produced and analysed by independent, context-aware experts able to devote appropriate attention to all relevant factors.Most importantly, all contributions to Capturing Talk emphasise that transcription is far from the simple transduction of 'sounds' into letters that it is often assumed to be by those who have not studied its intricacies. It is a highly complex and fascinating topic worthy of taking its place as a dedicated field of research in its own right, particularly in view of the widespread misconceptions and unhelpful language ideologies that still beset the institutional practices surrounding the transcription of spoken language.

Keywords: transcription, misconceptions about language and linguistics, language ideologies, Forensic linguistics, Forensic transcription, Police interviews and interrogations

Received: 15 Apr 2024; Accepted: 22 Apr 2024.

Copyright: © 2024 Fraser, Haworth, Deamer, Loakes, Richardson and Komter. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY) . The use, distribution or reproduction in other forums is permitted, provided the original author(s) or licensor are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.

* Correspondence: Mx. Helen Fraser, The University of Melbourne, Parkville, Australia

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