'Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography' by Dan Rohde and Nicolas Parra-Herrera in (2023) 3(3) Journal of Law and Political Economy argues for seeing law as an “architecture”: a set of tools with which we build our society, with law’s autonomy lying in the way that it facilitates specific forms of societal ordering at the expense of others.
Four aspects of the “law as architecture” approach warrant discussion. First, this approach does not simply focus on law as enabling new modes of social coordination, but also as simultaneously disenabling other modes. It thereby distinguishes itself from more functionalist approaches and Whig history that sees legal development as, more or less, a simple story of progress. Second, this approach emphasizes the extent to which law is inherited with every generation, leaving legal actors (for the most part) to iterate on the architecture they were born into rather than designing legal arrangements ab initio. Third, law as architecture evokes a material and spatial quality in social collaboration and conflict, where the configuration of these spaces’ modularity touches lives in their bare materiality; it affects them, sometimes, profoundly. Fourth, and lastly, we describe the “law as architecture” as “existential” — meaning that, while it is somewhat determinate at any given moment, we can never fully predict the long-term uses to which changes in a given piece of legal architecture will be put, nor the long-term social consequences that will result.
