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190 Unique Law Research Topics for Students to Consider

Table of Contents

If you are a law student, then obviously as a part of your studies you must write an excellent academic paper on any top law research topics. Right now, do you want to write a brilliant law research paper? Are you searching for the best law research topic ideas? If yes, then continue reading this blog post and get interesting law topics for your academic writing.

Law Research Paper Writing

A law research paper is a type of research paper that focuses on any legal topic in the world. The legal topics are nothing but the topic that deals with the legal issues that are resolved in the court.

In general, every country will have its own legal regulations and policies. More commonly, the basic rights and humanity will be the same for all the countries in the world, but specifically, you need to consider the cultural and historical peculiarities of a country while writing a law research paper.

Remember, the law is a sensitive subject and hence, when writing legal research papers, utmost care should be given. You shouldn’t add too much philosophy to it. Your research paper should answer your law essay topics properly with pure black-and-white facts.

You may think that writing a law research paper is easy. But actually, it is not. For writing an intense legal research paper, you must have a unique legal research topic. Particularly, when writing law papers, you should first research and find the legal questions relevant to your topic, analyze the various legal precedents, and present the answer to your legal question in the form of a memo by properly citing all the sources you have used for references.

Law Research Paper Topic Selection Tips

If you want to write a law research paper, then a good law research topic is what you need. Basically, the law is a complex subject, and hence choosing the right research topic from them is challenging. While selecting the legal research topic, be sure to keep the following tips in mind.

Your topic should not be too broad.
It should be informative to your audience.
The topic should be catchy and relevant to modern law.
It should contain relevant supporting materials online or in local libraries.
The topic should deal with relevant legal precedents.
It should answer all the legal essay questions.
Your topic should have real-life cases to illustrate your points.

List of the Best Law Research Paper Topics

Law is a popular discipline among humanitarian sciences that have a wide range of research areas. Some common law research areas include business law, commercial law, environmental law, international law, medical law, constitutional law, cyber law, family law and so on.

As law is a broad subject with endless research topics, it might be difficult for you to choose the most interesting idea from them. So, to make things easier, we have sorted different categories of law and listed some outstanding law research topics for you.

Have a look at the below-mentioned list of law research paper topic ideas and identify aprofound legal research topic of your choice.

Business Law Research Topics

What’s the true nature of business law?
Equity and the doctrines of business law
Morality and its relation to business law
Business laws and the parliament
The formulation of business regulations in Islam
Why are business regulations essential for institutions and organizations?
Business laws in Africa
How crucial is the constitution for the creation of business law?
Business law as a profession
The classification of the business regulations
Describe the Law of Contracts in the United States
Discuss the fundamentals of UK contract law for businesses
Critical evaluation of the role of the judiciary bodies in corporate law
Disclose an insight into contract laws with respect to the application of verbal and non-verbal agreements
Importance of collective bargaining agreements and laws on labor relations
How to deal with corruption in business law?
Discuss the difference between the EU and the UK after the implementation of the Brexit Contract Law
Discuss the protections provided to the minority shareholders in the corporate law regime of India
Compare and contrast the legal aspects of corporate M&A (mergers and acquisitions) in the United States and Australia
Analysis of the role of the Federal Trade Commission’s Bureau of Competition in regulating the anti-competitive practices in the market
Compare and contrast the legal aspects of e-commerce in the US and the UK
Critical analysis of the role played by the Arbitration and conciliation act in resolving business disputes
Compare and contrast the company law act in Australia and Canada
Discuss how anti-money laundering laws of a country impact businesses
Describe the implications of digital payment systems

Commercial Law Research Paper Topics

What are the dangers and potential results of commercial partnerships?
A comprehensive analysis of pre-incorporation contracts: How do they work?
Reviewing the use of international commercial law in energy projects across the globe.
Assessing the mediating role of corporate social responsibility in companies’ performance.
Evaluating the commercial laws that should be used against dishonest managers.
Reviewing the US commercial laws: What should be changed or added?
Evaluating the regulations aimed at stopping corruption: A case study of the UK.
Reviewing the implications of international commercial law in UK commercial laws.
Assessing the effectiveness of international commercial law programs in UK universities.
Evaluating the effectiveness of commercial law to support commercial transactions in the US.
Critical analysis of the Sarbanes-Oxley Act
Discuss the benefits of Commercial Law
Analyze the difficulties faced by businesses due to pursuing Regular or Commercial Lease
Describe the effect of business law on commercial transactions and licensing
Critical analysis of the labor law in Tanzania
Develop a comparative study on international labor standards that regulate multinational companies in developing countries

Constitutional Law Research Topics

The Internet and its impact on Free Speech
The pros and cons of federalism
What’s the freedom of the press?
The desecration and flag burning
A comparison between constitutions and state laws
What are the rights of victims of self-incrimination?
The pros and cons of Constitutionalism
All about gun control and its history in the US
What are the key changes that the First Amendment has brought?
What changes did the Bill of Rights bring?

Criminal Law Research Topics

Why does one crime have a set of different punishments?
The roots of criminologists’ work and their work in modern times
Can sociology have an impact on preventing crime?
The ethical and legal issues related to criminal activity in your country.
The real truth behind domestic violence
What is quantitative criminology, and how does it differ from other types of crime?
When does the international criminal court come into play?
Analyzing the use of lie detectors in criminal justice: How effective are the lie detectors?
A deeper look at the history of the death penalty.
The key differences between male and female rape legislation
Evaluating crime-related factors that should not be presented in a court of law.
A thematic review of criminal theory: Exploring the link between crime and morality.
What are the best ways to protect witnesses from retaliation in criminal cases?
Is criminal profiling by law enforcement truly helpful in identifying serial killers?
How does the criminal justice system keep an eye on police with body cameras?

Read more: Criminal Justice Research Topics Idea for students

Research Topics on Family Law

Evaluating the impacts of the law on divorce: Has it increased the cases of divorce or reduced them?
Review the important implications and reasons for changes to family law in the last 20 years.
Assessing the factors that hinder couples from pursuing a divorce.
The global issues and legal aspects of marriage and divorce of mentally unstable individuals.
Explore divorce and social consequences across family law and religious perspectives.
Analyze the legal foundations of parenting and civil partnerships.
Assessing human rights in states that follow religious laws for families: A case study of India.
Compare the divorce rights for women in Pakistan and the UK.
How does culture impact decision-making on transgender marriages and divorce in the US?
Evaluating the compatibility of child justice with family justice: A case study of the UK.

Cyber Law Research Topics

The main cyber laws and enforcement today
What are the skills of an excellent cyber lawyer?
How can the government impact cyberterrorism?
Cybercrime and cyberterrorism
The penalties for cybercrime
All about private data, revenge porn, blackmailing, and our internet privacy
Is it the government’s job to analyze the flow of network traffic?
Cyberlaw trends and how the online community sticks to them.
The Internet Era and identity theft: Is it a crime of modern times?
Categories of cybercrime and the main cybersecurity strategies against violators.

Read more: Interesting Cybercrime Research Topics To Deal With your paper

Research Ideas on Environmental Law

The environmental influence on the rate of crime
How has global environmental law changed today?
The importance of environmental law for the health of current generations.
Biological weapons and their regulations by international environmental law.
Will the Uber industry impact the ecology in America?
The current environmental regulations in the United States
Sustainability and environmental compliance due to environmental law and economic reality.
All about the environmental regulations in Canada
Waste management in countries with a high economic level.
Environmental law in Australia and climate change

Employment Law Research Topics

A comprehensive review of employment contracts and job contracts in the US manufacturing industry.
A legal viewpoint of employee mobility between European Union countries.
Equal employment opportunities: Comparing gender differences in the UK and US regulations.
Compare the UK laws before and after exiting the European Union.
Reviewing legal perspectives of social work employment: A case study of California, USA.
A comparative analysis of employment laws in the automotive industry in the US and UK.
Analyze the impact of trade unions and their work in the UK.
The convergence of employment laws and religion in the USA: A literature review.
Evaluating the efficiency of workplace sexual harassment: A case study of the US and UK.
A critical evaluation of the employment law of disabled individuals in the US.

Law Research Topics on Intellectual Property

Evaluating laws for intellectual property rights protection on the internet.
A comprehensive assessment of the economic impacts of intellectual property rights
Evaluating the fair dealing in terms of copyright law: A case study of the US.
How has EU law impacted the intellectual property regime in the UK?
Can the emerging technological advancements operate smoothly with the current intellectual property laws in the US?
Demystifying the relationship between intellectual property laws and EU regulations?
Comparing and contrasting the intellectual property regimes in the UK and the US.
Evaluating the implications of Brexit on the protection of intellectual property rights in the UK.
Is the EU intellectual property law safe and fair for users and owners?
Does the EU copyright law provide ample balance between the needs of inventors and users?
Comparison of the institutions and regulations governing intellectual property in China and India
An in-depth analysis of the UK’s invention and patenting system: Can the existing, rigid system stimulate innovation?
Critical analysis of the development of copyright and moral rights in the legal system of Europe
Infringement of foreign copyright and jurisdiction of the European Court
Critical analysis of the economic rationale of Trademarks
Analyze the emerging role of patents in innovation and intellectual property protection in the software industry
Peer-to-Peer Technology: Analysis of contributory infringement and fair use
Trademark protection is and ought to be the need of businesses to protect their brand value: Explain
What do fair pricing and fair dealing with copyright regulations mean?
Trade-Related Aspects of IP Rights: A Workable Instrument for Enforcing Benefit Sharing

International Law Research Paper Topics

The principles used to formulate international criminal laws.
Ethical systems and international relations
Problems of code-based ethics
How do different countries deal with false confessions?
Different treatment of terrorism as a crime in different countries
Diplomats and their protection of international morality.
Did the US involvement in Iraq provide justice or violate the law?
Laws on mental health in different countries
The issues of traditional justification
The question of ethics in the international legal context.
International Human Rights Court Hearings: Evaluating the importance of precedence.
What are the problems of enforcing international law in developing countries?
Evaluating the efficiency of International Tribunals in solving war crimes.
Digital and internet legislation: Forecasting the future.
Assessing the relationship between public safety and civil liberties in international laws.

Medical Law Research Topics

The common law towards refusal of medical treatment.
Evaluating the laws governing organ transplantation: A case study of the US .
How do ethics and medical law coexist?
Ethics and Medical Laws in World War II
Law application in medicine: Exploring the antecedents and practice.
Evaluating the ethical and legal challenges of using biobanks.
Exploring the legal aspects of electronic fetal monitoring.
How do lawsuits affect medical practitioners’ commitment to offering lifesaving treatments?
Unregistered medical intervention in the UK: What are the legal implications?
Morality and law in the abortion debate.
In accordance with international environmental law, biological weapons are prohibited.
Will the Uber industry have an impact on American ecology?
United States environmental laws are in effect today.
Due to environmental legislation and economic reality, sustainability, and environmental compliance.
anything about Canadian environmental laws.
evaluating aspects of crime that shouldn’t be discussed in court.
What are the best strategies for shielding witnesses in criminal cases from reprisals?
A more thorough examination of the death penalty’s past
Examining the connection between crime and morality is the focus of this examination of criminal theory.
A case study of London’s examination into the difficulties in determining the type and distribution of crime.

A Few More Medical Law Research Ideas

How to balance the rights of defendants and victims when using anonymity in sexual offense litigation.
Slavery, prostitution, and human trafficking. the methods used globally to eradicate it.
Is identity theft a modern-day crime? prevention of identity theft in the post-Internet era.
criminality and psychology. Are some people more likely than others to breach the law?
Social control theory against the self-control hypothesis
False confessions and how they are handled in various nations.
The environment’s impact on crime rates is one of the theories behind shattered windows.
Similarities and disparities between mental diseases and crime in various nations.
education, criminal behavior, and intelligence.
From the beginning to the present, criminologists’ fieldwork.
How does quantitative criminology differ from other types of crime? What is it?
When is the use of the international criminal court appropriate?
Examining the effectiveness of lie detectors in the criminal justice system:
A more thorough investigation of the death penalty’s past.
The main distinctions between male and female rape laws
Assessing criminal-related variables that shouldn’t be brought up in court.
What effects has EU law had on the UK’s system of intellectual property?
Can the advancing technologies coexist peacefully with the US’s current intellectual property laws?
Explaining the connection between EU rules and intellectual property laws?

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University of Bristol Law School

Law working papers series.

Welcome to the Bristol Law Working Papers Series. The series publishes a broad range of legal scholarship in all subject areas from members of the University of Bristol Law School. All papers are published electronically and available to download as pdf files.

Working papers

Going forward by staying put: the political economy of stabilizing trade agreements and initiatives (pdf, 1,533kb).

Author: Christian Delev

This article examines the emerging practice of states entering into trade agreements or negotiating initiatives which sustain parties’ existing market access commitments and ‘behind-the-border’ regulatory barriers to trade.

The Legal Status and Targeting of Hacker Groups in the Russia-Ukraine Cyber Conflict (PDF, 1,750kB)

Author: Giacomo Biggio

The armed conflict between Russia and Ukraine has been characterized by a considerable number of cyber operations. This article considers the legal status of hacker groups and individuals who have conducted cyber operations in support of Ukraine and the legality of targeting of individuals who directly participate in hostilities.

Migration and Work in the Post-Brexit UK (PDF, 1,603kB)

Authors: Manoj Dias-Abey and Katie Bales

This briefing paper examines the major labour migration pathways in the new post-Brexit migration system that came into force on 1 January 2021.

Default Norms in Labour Law- From Private Right to Public Law (PDF, 1,525kB)

Author: Alan Bogg

How far can the common law limit freedom of contract in employment contracts? This paper considers the limits of freedom of contract in relation to (i) contracting out of employment status; (ii) contracting out of implied terms. It argues that public policy can impose necessary limits on the employer's contractual powers.

Exceptions and Regulatory Autonomy (PDF, 1,504kB)

Author: Joshua Paine

This paper provides a comparative overview and analysis of exceptions commonly included in Preferential Trade Agreements.

An Analysis of the UK–Australia FTA’s Investment Chapter (PDF, 630kB) Author: Joshua Paine

A Kantian moral cosmopolitan approach to teaching professional legal ethics (PDF, 693kB) Author: Omar Madhloom

COVID-19 at Work: How risk is assessed & its consequences in England & Sweden (PDF, 837kB) A‌uthors: Peter Andersson and Tonia Novitz

Capturing the value of community fuel poverty alleviation (PDF, 1,891kB) Authors: Colin Nolden, Daniela Rossade and Peter Thomas

Bridging the Spaces in-between? The IWGB and Strategic Litigation (PDF, 522kB) Author: Manoj Dias-Abey

View past papers

How to write a legal research paper: All you need to know

This article on “How to write a legal research paper: All you need to know” was written by Vridhi Rai, an intern at Legal Upanishad.

Introduction:

Law is all about analysis, critical thinking, and interpretation. Your capability to put together the analysis of the study of the issues in written form is essential in the practice of law. The research paper is one such way to express your creative and analytic thought process, your vision of the theme, and the originality of your content. The word ‘research’ means a systematic examination of material facts. It can be complex and daunting for law students. But research helps in enhancing your knowledge and cultivating your writing skills. This article will help you understand what is research paper all about and how to write a research paper.

What is a research paper?

A research paper is a piece of academic writing which is based on an author’s original composition in the research and the findings on a given theme or topic. The writing should be owned by the author himself or herself. A good research paper strives to convey the information traced by the author crisply and concisely. The paper is written to examine the theme or the provisions, present your stand on it, and showcase evidence in support in a systematic manner. The true nature of the paper shows you the purpose of the theme or topic.

What is the aim of the legal research paper?

The aim of the legal research paper can be a subjective question since the writing will indicate what the intended outcome is. There are kinds of writings that would pave a way for courts because it geared toward a certain kind of doctrinal analysis of the court’s interaction with theory and practice. The writings are done for better interpretation of the law. It could also be used to influence policy-making and generate debates. The author has a specific objective and intended audience in mind to serve.

How to write a legal research paper?

Step-1 choose a theme or topic:.

The foremost step in writing a legal research paper is to select a theme or topic for the research. Select topics that catch your attention or interest. You can pick topics addressing contemporary issues or topics for the intended audience you wish to cater to. It should be novel, innovative, and interesting. While choosing a topic, read pertinent issues from different sources. You can follow legal news to search for pertinent topics.

In case, you find difficulty selecting a topic, it will be wonderful for you to approach your professors, colleagues, and friends for consultation. Also, never feel hesitant to change the theme or topic of the research, if you feel it is not the right topic or you will not able to research the topic effectively.

Step-2 Research on your topic:

Now, your next task is to research the topic extensively on your selected topic from credible sources. You can refer to different sources by reading legal research pieces from books to online sites like SCC online, Manupatra, and Kluwer Arbitration. Always remember don’t just goggle. Use conventional sources like books and articles, these will give you a broader perspective. Read as much as you can. Reading helps you understand the nitty-gritty of the law provisions. Please beware of the research as this task can be very monotonous. You might lose motivation to perform this task. But hang in there and stay motivated to find interesting facts.

Step-3 Examine and Make a plan:

After researching, your very next step is to examine and make a plan to execute writing a legal research paper. Your research will be comprehensive with ideas. Please develop a detailed outline. Try adding notes to your research work. It can be possible that you might end up adding too much information to your paper. Highlight the key findings from your study. At this stage you are required to identify the goal of your research work, it can be either argumentative or analytic. You have to determine the masses you are wishing to address. The focus and the tone of the paper should b according to the audience you are intending to reach.

To get your Legal Research Paper written by an expert. Contact us.

Step-4 writing the paper:.

The next step is to draft the research paper. Make a final outline of the research work. The outline must have the points to describe the overview of the paper. The basic mantra of legal research is the structure of the paper. The research paper writing should be creative, clear, concise, and comprehensive. The language of your research paper should be easy to interpret. The legal terminologies and material facts are generally very sophisticated and complex. The facts, you are mentioning must be backed by shreds of evidence.

The format of the legal research paper:

The paper should have a proper format that consists of writing styles, referencing styles, page numbering, spacing, and margins. It should also include the headlines, sub-headlines, citations, or credits to the authors and the scholars.

The content of the legal research paper:

The content consists of the following:

Acknowledgment : the content of the paper should include an acknowledgment section that appreciates all the contributors to the research paper for their efforts and encouragement.

Table of contents: it includes the list of the things that you have written in your research paper.

Scope of the research: the scope or object of the research includes the reason for your study. It shows you the skeleton of your research paper. You have stated the problem or issue of the paper.

A literature survey or the sources used in the study: it includes the sources you have referred to in your study. It can be primary or secondary resources. The primary resources include books, statutes, and case laws. The secondary sources include the material you have collected from law articles, journals, and compendiums online or offline.

The hypothesis of the research: the hypothesis is the idea that is suggested to explain the objective of the research conducted by the researcher. It conveys the expectations of the researcher on what basis he started studying the issues, he raised in his paper.

Abstract : abstract shows the gist of the theme you have mentioned in your study. It is like the summary of the findings in your research regarding the theme. It should be written clearly and concisely.

Introduction: the introduction should be well-written to attract the attention of the audience toward the theme you mentioned in your thesis. A glance over the initial paragraphs gives an insight to the readers of your work. The introduction determines whether the research paper is worth reading or not. It should express the research problem, the purpose of your thesis, and background details about the issue you are referring to. It should be short, crisp, and comprehensive.

The main body of the study: the main focus of the paper is the main body of the thesis. The body should be divided into paragraphs along with sub-headings for a better understanding of the facts. Each paragraph should draw the main points of your study. It should begin with the topic’s sentences and should conclude extensively. In the main body, you can add the case laws and judgments.

The conclusion of the study: the finale of the study should include a summary of the main pointers discussed in the study, it should express your stand or viewpoint towards the research problem. The concluding para of your research can be affirmative or negative in tone. In the end, you can add some suggestive measures to your study.

References or bibliography: at the end of the paper mention the references or the sources links or sites from which you have researched the material facts.

Step – 5 edit and proofread the final draft of the research paper:

Use proper grammar, punctuation, and spelling. Proofreading will help you to find errors in your content. If you need, to make changes to the paper, check and find the logic and legality of the statement. At this stage, you check the plagiarism of your content.

The things that should be considered carefully before drafting the paper:

you need to check the validity of the judgments before mentioning them in the research paper. The validity of the bills mentioned in your study should be carefully considered. The errors related to applicability or jurisdictions should be carefully verified.

Conclusion:

Legal research is not an easy task to perform. It takes a lot of time to conduct it. Constant hard work, attention, motivation, and patience are the factors required to examine and analyze the details. It can be boring. But it will help you in brushing your skills. Your efforts and dedication toward finding more and more material facts will help in shaping you into a good researcher.

It is beneficial for law students for interpreting law provisions, policies, and judgments. It can be used as a medium to influence policy-making procedures and as a tool to aware the masses. Publication of your research papers will act as a stimulating force to your law career. It will help you build your confidence and help them transform into law professionals.

References:

How to write a legal research paper: guide: how to write a winning research paper?- Legal Desire. Retrieved: https://legaldesire.com/guide-how-to-write-a-winning-research-paper/
A helpful guide on writing a law research paper- Writing help. Retrieved: https://howtowrite.customwritings.com/post/law-research-paper-guide/
How to begin with writing a legal research paper- Manupatra- youtube channel-(video file)
How to write a legal research paper law?|research paper- Eminent law classes-(Video file)
The aim of writing a legal research paper- the art of writing a legal research paper-Rohini Sen-letter of the law-(video file)

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5 Key Steps to Writing an Effective Law Research Paper

Written by admin

Updated on: April 7, 2024

Table of Contents

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

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

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

1. Select a Relevant and Narrow Topic

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

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

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

2. Perform a Thorough but Methodological Research

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

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

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

Legal databases.
Scholarly articles.

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

3. Create a Well-Thought-Out Outline

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

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

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

4. Write in a Clear and Precise Legal Language

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

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

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

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

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

Well, you can perform the following checks:

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

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

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

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

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NLSIU publishes several academic journals that contribute to a wide range of legal and interdisciplinary scholarship. These journals carry articles by leading scholars and practitioners, and have been cited by the Supreme Court on several occasions. All NLSIU journals are peer-reviewed and follow an online open-access policy. Here is a complete list:

The National Law School Journal is the flagship journal of the National Law School of India University, Bengaluru. It is an open-access, peer-reviewed journal that has consistently published original contributions to contemporary legal scholarship on India and the developing world since 1989. The journal’s Editorial Board includes the Vice-Chancellor and members of the faculty. NLSJ invites contributions from academics, practitioners and researchers across legal studies and allied interdisciplinary scholarship.

ISSN: 0971-491X

Indexed in: UGC-CARE

The International Journal on Consumer Law and Practice (IJCLP) is a blind-peer reviewed, open-access journal published annually by NLSIU under the aegis of the Chair on Consumer Law and Practice. Launched in 2013, IJCLP provides a forum for discussions on national and international best practices in consumer protection law. The journal welcomes contributions from academics, practitioners and students of law and allied fields.

ISSN: 2347-2731

Indexed in: SCOPUS, UGC-CARE List, HeinOnline, SCC OnLine

The Journal of Environmental Law Policy and Development is an annual peer-reviewed journal of the Centre for Environmental Law Education, Research and Advocacy (CEERA), NLSIU. Over the years the journal has featured articles on various themes under environmental law and policy, including governing principles of environmental law, adjudicatory authorities and their roles in dispensing environmental justice, waste management, climate change and other issues of contemporary relevance.

ISSN: 2348-7046

The Journal of Law and Public Policy is an annual peer-reviewed journal published under the Centre for Environmental Law Education, Research and Advocacy (CEERA), NLSIU. It covers a wide range of socio-legal issues on the interface between law and public policy, such as human rights, consumer welfare, women rights, socio-economic rights, food security law, access to legal aid, medical law and ethics.

ISSN: 2350-1200

Student Journals

NLSIU has a rich and vibrant tradition of student-managed and edited journals. Accompanied by online forums for shorter, more contemporary academic writings, these journals are committed to producing quality scholarship across legal and allied disciplines. Student-led journals are integral to deepening a culture of research and scholarship within the University. They enable students to contribute to academic conversations while building crucial analytical and editorial skills in the process.

All journal sites, hosted within the NLSIU Scholarship Repository, enable online open access to the complete journal archives. This is accompanied by an automated submission and review system, powered by Digital Commons, which enables:

A simple, user-friendly submission process
Quicker and more efficient peer review processes for editors, reviewers and authors
Shorter publication timelines

In terms of readership and impact, all student-led journals are indexed on leading scholarly databases and have active social media presence. From 2022, articles published in student-led journals will also be assigned Digital Object Identifiers (dois).

To strengthen collaboration and decision-making amongst student-led journals, the Journal Council, constituted by the Chief and Deputy Chief Editors of our five student-run journals, was formed in 2022. The five journals are listed below:

The National Law School of India Review (NLSIR) is the flagship law review of the National Law School of India University, Bengaluru. NLSIR is student edited, peer-reviewed law journal published bi-annually, which holds the unique distinction of being cited twice by the Supreme Court of India.

NLSIR aims to:

Publish scholarship of the highest calibre in all areas of Indian law, including comparative perspectives that examine Indian law
Promote accessibility to legal scholarship and discourse
Encourage deliberation among academia, government, industry and non-governmental stakeholders
Promote original legal writing among law students and young academics.

ISSN: 0974-4894

Indexed in: SCC Online, Manupatra, JStor, HeinOnline

The NLS Business Law Review is an annual, open-access, peer-reviewed commercial law journal run by the students of the National Law School of India University and published by the Eastern Book Company.

The NLS Business Law Review intends to recognise and foster academic research and scholarship in commercial law by examining the myriad regulatory frameworks, domestic or international, that impact doing business in India or globally. We particularly welcome submissions applying comparative international perspectives. The mandate of the NLS Business Law Review thus, inter alia, includes company law, securities and capital markets regulation, banking and finance, taxation, foreign investment, competition law, commercial dispute resolution, contract and commercial law, and employment law.

ISSN: 2456-1010

Indexed in: UGC-CARE, SCC Online, HeinOnline

Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary journal run by the students of National Law School of India University, Bengaluru. It takes an expansive view on the interpretation of “law and society” in South Asia, inviting articles with a perceived link between law and social sciences.

ISSN: 0973-5216

Indexed in: Directory of Open Access Journals, Westlaw, HeinOnline, SCC Online

The Indian Journal of International Economic Law (IJIEL) is a student-edited, peer-reviewed law journal published annually by the National Law School of India University, Bengaluru, under the patronage of the Indian government-sponsored chair on WTO Law. The Journal is an endeavour to encourage scholarship in the niche but rapidly emerging and dynamic fields of international trade law and international economic law, in recognition of the staggering impact of the World Trade Organization (WTO) and cross-border trade and commerce in the world today.

ISSN: 0975-3214

Indexed in: SCC Online, HeinOnline, Manupatra

The Indian Journal of Law and Technology (IJLT) is a bi-annual, student-edited, peer-reviewed, open access law journal published annually by the National Law School of India University, Bengaluru. IJLT is the first and only law journal in India devoted exclusively to the study of the interface between law and technology.

The Journal has a broad mandate, and carries scholarship carries scholarship in the areas of intellectual property rights, internet governance, information communication technologies, privacy rights, digital freedoms, openness, telecommunications policy, media law and innovation, and more, with an emphasis on a developing country perspective or a comparative approach that benefits the developing world.

ISSN: 0973-0362

Indexed in: UGC-CARE, WestLaw, HeinOnline, SCC Online, Manupatra, LII, World Cat, Google Scholar, Microsoft Academic, J-Gate@e-shodhsindhu

The Forces of Law: Duty, Coercion and Power

Oxford Legal Studies Research Paper No. 12/2015

34 Pages Posted: 3 Apr 2015

Leslie Green

Queen's University - Faculty of Law; University of Oxford - Faculty of Law

Date Written: March 31, 2015

This paper addresses the question of the relationship between law and coercive force. It defends, against Frederick Schauer’s claims in his book, The Force of Law, the following propositions: (a) The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. (b) Even if coercion is not part of the concept of law, coercion is connected to law in a variety of ways. These are amply recognized in contemporary jurisprudence. (c) We cannot determine how important coercion is to the efficacy of law until we know what counts as coercive force. This question is not a matter for empirical generalization or bare stipulation. It requires an explanation of the concept of coercion.

Keywords: law, coercion, power, jurisprudence, Frederick Schauer, Hans Kelsen, H.L.A. Hart

Suggested Citation: Suggested Citation

Leslie Green (Contact Author)

Queen's university - faculty of law ( email ).

Kingston, Canada, Ontario K7L3N6 Canada

HOME PAGE: http://https://www.law.ox.ac.uk/people/leslie-green

University of Oxford - Faculty of Law ( email )

Balliol College Oxford Oxford, UK, OX1 3BJ United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics, related ejournals, law & humanities ejournal.

Subscribe to this fee journal for more curated articles on this topic

Jurisprudence & Legal Philosophy eJournal

Philosophy of law ejournal.

Subscribe to this free journal for more curated articles on this topic

Political Theory: Political Philosophy eJournal

Writing a law school research paper or law review note

Books and articles

Examples of student papers

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

Ancient Water Law in a Modern Crisis: An Analysis of Australian Water Law Reform in the United States Context
Seizing the Initiative on Sexual Assault in the United States Military: The Way Forward
Striking a Balance: Extending Minimum Rights to U.S. Gig Economy Workers Based on E.U. Directive 2019/1153 on Transparent and Predictable Working Conditions
<< Previous: Books and articles
Last Updated: Jul 29, 2022 11:08 AM
URL: https://law.indiana.libguides.com/c.php?g=1071346

Publishing in Law Reviews and Journals

Publishing in law reviews and journals-home, deciding where to publish, article submission services, author rights, sharing and depositing your papers, conferences and symposia, books, articles and other resources, writing competitions, videos of classes and presentations, tutorial and quiz, getting help.

Have you thought about trying to publish in a law review or journal? This guide contains a variety of resources to help you in that process.

Submit to DASH, Harvard University's open access repository

If you are a current HLS student, deposit your work in DASH (Digital Access to Scholarship at Harvard).

This guide is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 4.0 International License .

You may reproduce any part of it for noncommercial purposes as long as credit is included and it is shared in the same manner.

Comparing Law Journal Impact Factor/Prestige

Over the years, many ranking systems for law journals have evolved, incorporating a variety of methodologies and factors, including frequency of citation, prominence of author, etc.. Although such rankings can be useful for getting an idea of the prestige or "impact factor" of a journal, they should be taken with a grain of salt and in consideration of other factors that might be important to you. Ranking of journals is frequently a subject of articles and blog postings. Play close attention to how the data was compiled---e.g. through database searches, opinions of experts in the field, etc..

Law Journal Submissions and Ranking The Washington & Lee Law School Library produces this site that lists law journals by subject, country and other factors, and allows users to rank journals by impact factor or immediacy index. (Both are based on citation counts more or less, see ranking methodology ). Provides contact and submission information.

Allen Rostron & Nancy Levit, I nformation for Submitting Articles to Law Reviews & Journals .

Bridget J. Crawford, Information for Submitting to Online Law Review Companions .

Michael Goodyear, Information for Submitting Articles to Specialty & Non-Flagship Law Journals .

Nancy Levit et al, Submission of Law Student Articles for Publication .

Clarivate Journal Citation Reports (Harvard ID and PIN required) Ranks journals in a wide range of disciplines including about 100 law journals. Rankings are based on citation counts in thousands of journals in the sciences and social sciences. From the home page, click Categories , then click Social Sciences, General. From the expanded menu, click Law.

Most Cited Journals on HeinOnline This top 100 list is based on HeinOnline's citator feature called ScholarCheck. You can also use ScholarCheck to create your own metric. They also have a collection of most-cited law journals .

Eigenfactor This system ranks journals as Google ranks websites (mapping relationship structures). The coverage of law is not comprehensive, but it is useful for looking at journals in the context of the social sciences generally.

Google Scholar Metrics Google Scholar provides five-year h-index and h-median numbers for ranking purposes.

Bryce Clayton Newell, Law Journal Meta-Ranking 2023 Edition

Measuring Quality - Writing for and Publishing in Law Reviews (Choosing Where to Submit and Publish) A great guide compiled by the Gallagher Library at the University of Washington Law School, explaining the most common ranking factors, including important an extensive selection of articles and surveys.

Brian T. Detweiler, May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals

Accessibility of the Content

Is the journal available in places where scholars will find, and hopefully cite to, its contents? Some considerations include:

Is it open access or freely available? Do you encounter a paywall when trying to read an article's full-text? Check the journal's website for contents and the journal's policy. You can also check the Directory of Open Access Journals , but the coverage for law is not extensive.

Is it in Westlaw, Lexis, and other subscription databases?

Is it indexed by Legaltrac (a.k.a Legal Resource Index)? See title list (downloads as an Excel file).

Is it indexed by Index to Legal Periodicals and Books? See title list .

Is it included in Tables of Contents Services, such as Current Index to Legal Periodicals? See title list on HeinOnline (Harvard Key required).

Selected Directories of Law Journals

In addition to Washington and Lee's Law Review Submissions and Ranking website , there are several directories that can be used to find out more information about law journals that are currently being published.

Ulrich's Periodicals Not specific to law, Ulrich's describes periodicals in all disciplines, worldwide. Most comprehensive source for finding law-related serial publications. Includes newspapers, bar journals, and trades. Usually provides a description, contact information, circulation figures, abstracting and indexing services, and links to publishers' sites. Use Advanced Search to find appropriate journals. At minimum, you may want to limit Country of Publication to United States, Subject to law, Status to Active, and Serial Type to Academic/Scholarly.
Directory for Successful Publishing in Legal Periodicals Call Number: Reference K 36.J69 1997x A bit out of date but still useful. Covers about 500 major law journals. Describes the journal's particular focus, preferred manuscript style; acceptance rates, details about the review process, and occasionally explains factors in manuscript rejections.

Short-Form Publishing

Many law reviews now have blogs and websites that accept shorter submissions. See Information for Submitting to Online Law Review Companions by Bridget J. Crawford . Washington & Lee also lists selected ones on its Law Journals: Submissions and Ranking website .

Scholastica

Hls student scholastica funding.

The Harvard Law School subsidizes Scholastica journal submissions for current students with publishable academic work.

Eligibility

To access this support, you must receive sign-off from your faculty supervisor that your work is ready for submission to law reviews and journals.

Before we activate your account, we ask you to complete a tutorial and quiz about submission strategy. You may also want to set up an appointment with a librarian to discuss strategy and how to select journals for submission. We encourage you to review the Law Library’s Guide to Publishing in Law Reviews and Journals.

How to Participate

Send a request using your Harvard email to [email protected] . Include or separately forward the approval from your faculty supervisor. Your name must be in the body of the email from your faculty supervisor.

How it Works

When you contact us, we will send you a link to an online tutorial and quiz. Once you have completed the quiz, and we receive your request and faculty approval, Library staff will add you to our Scholastica account. Once you acknowledge our invitation, you will be free to begin your submissions. Your account will remain active until you reach your maximum number of submissions or expiration after 10 months past your graduation date, whichever comes first.

Submission Levels

SJD– up to 50 submissions per academic year during your time at HLS. Unused submissions will roll over to the next year.
LLMs – up to 50 submissions total during your year at HLS.
JDs – up to 50 submissions total during your three years at HLS.
Submissions may be used up to 10 months after graduation.

Note: Please keep track of your journal submissions and notify us when you reach 50, as Scholastica does not limit them automatically.

JOURNAL POLICIES FOR SUBMISSION

Sherpa Services is a searchable database of publisher's general policies regarding copyright and the self-archiving of journal articles on the web and in Open Access repositories. Each entry provides a summary of the publisher's policy, including what version of an article can be deposited, where it can be deposited, and any conditions that are attached to that deposit.

How You Can Submit an Article

Journals have different policies for receiving submissions. Your best starting place is to check the journal's website, which usually provides details about its policy. We have collected on this page some potential resources that you can use for submitting an article.

Learn about Author Rights

If you do get an acceptance for publication, you might be asked to sign an author agreement/contract with the publisher. Some standard agreements require things such as transferring copyright or prohibiting what you can do with your own work. See Benjamin J. Keele, Advising Faculty on Law Journal Publication Agreements for a brief basic review of terms to consider.

SPARC Author Rights

Author Rights and the SPARC Author Addendum

Scholar's Copyright Addendum Engine

Hosted by Science Commons, you can enter the article information and choose the rights you want to retain and generate a standard addendum on pdf to provide for the publisher's consideration. http://scholars.sciencecommons.org/

Keep Your Copyrights

Developed by the Kernochan Center for Law, Media, and the Arts and the Program on Law & Technology at Columbia Law School, this website provides a good introduction to author rights and sample publication agreements categorized by level of creator-friendliness.

https://kernochan.law.columbia.edu/content/keep-your-copyrights

Creative Commons Licenses

Creative Commons (CC) provides creators with standardized licenses that describe, in plain language, what actions are and are not allowed with their content.

Read more about the various licenses on the CC website .
The CC License Chooser tool can help you pick a license that's right for you and your work.

Resources to Learn about Journal Copyright and Self-Archiving Policies

Journal publication agreements vary widely, but there are some resources that help authors get an idea of what a journal's standard policy has typically been. While the journal publication agreement itself must always be reviewed, looking at these resources at the time of submission can be helpful, particularly if it is important for you to retain certain rights in your work. Regardless of what a publisher's standard agreement states, you can always try to negotiate different terms. If the publisher is unwilling to budge from its position, you then need to decide how important it is to you to publish in that particular journal.

Sherpa Services This website lists contains summaries of permissions that are normally given as part of each publisher's agreement.
Benjamin Keele, Copyright Provisions in Law Journal Publication Agreements
Dan Hunter, Walled Gardens
Brian Frye, Christopher Ryan, Franklin Runge, An Empirical Study of Law Journal Copyright Practices

Working papers and self-archiving

Regardless of your plans for formal publication of your work, you are encouraged to deposit your student papers with the university's open access repository, DASH . Doing so will enable you to share your work with other members of the Harvard community, as well as the world at large. If you are concerned about making your content available open on the Internet, you also have the option of submitting only the metadata (e.g. title, your name). See HLS Student Papers Series in DASH for details.

You might also want to deposit your paper (or its metadata) in SSRN or another working paper repository to associate yourself with the work and make it available for feedback from others in the field. Scholars frequently make their "working papers" or drafts available for early feedback and reaction from colleagues.

The SSRN Legal Scholarship Network hosts research paper series for academic and other research organizations such as the Harvard Law School, Public Law & Legal Theory Research Paper Series . Scholars can publish their work in a large number of law-related e-journals within SSRN's Legal Scholarship Network's four areas including Law & Economics, Public Law & Legal Theory, Legal Studies and Law Research Center Papers.

Author Identification

Giving the proper author credit for research is the goal of Open Researcher and Contributor ID ( ORCID ) iDs. ORCID is a non-profit, community-driven, Open Access effort to create a registry of unique researcher identifiers.

“ORCID provides a persistent digital identifier that distinguishes you from every other researcher and, through integration in key research workflows such as manuscript and grant submission, supports automated linkages between you and your professional activities ensuring that your work is recognized.”

You can create a new ORCID or link your existing ORCID using Harvard ORCID Connect , HarvardKey required.

Research Profile Services

Scholars@Harvard
Google Scholar Citations
Academia.edu

Conference Alerts

Conference Alerts This resource tracks academic conferences worldwide, including ones concerning law. E-mail alerts are available.
All Conference Alert Lists conferences for a variety of disciplines, including law. Can filter conference list by location and month.

Selected books

Other Guides

Writing for and Publishing in Law Reviews (Gallagher Law Library, University of Washington School of Law) This very extensive guide covers various aspects of publishing.
Brian D. Galle, The Law Review Submission Process: A Guide for (and by) the Perplexed
Scholastica Resources Run by the submission service Scholastica, there are various resources/tips (written from the perspective of a service provider) including their blogs .

Blogs/Current Awareness

Brian Leiter Law School Reports
PrawfsBlawg
Faculty Lounge

HLS also offers many prizes for its students papers generally. See Harvard Law School Writing Prizes for more information.

The American Bar Association (ABA) offers a number of writing competitions for young lawyers and law students, view the full list on their website .

See also the American University Pence Law Library guide to writing competitions for further resources.

Tutorial and quiz to obtain Scholastica account (HarvardKey required)

Contact Us!

Ask Us! Submit a question or search our knowledge base.

Chat with us! Chat with a librarian (HLS only)

Email: [email protected]

Contact Historical & Special Collections at [email protected]

Meet with Us Schedule an online consult with a Librarian

Hours Library Hours

Classes View Training Calendar or Request an Insta-Class

Text Ask a Librarian, 617-702-2728

Call Reference & Research Services, 617-495-4516

Last Updated: Jul 19, 2024 4:36 PM
URL: https://guides.library.harvard.edu/gettingpublished

Harvard University Digital Accessibility Policy

Research Paper Topics for Law of Evidence

Research Paper Topics for Law of Evidence- The Law of Evidence is a fundamental pillar of the legal system that governs the admissibility, presentation, and evaluation of evidence in court proceedings. As a multifaceted field, it offers ample opportunities for research and analysis. This article aims to provide a comprehensive list of research paper topics that can delve into various aspects of the Law of Evidence, shedding light on crucial issues, emerging trends, and evolving practices.

The Admissibility of Digital Evidence: Challenges and Future Implications
The Role of Expert Witnesses in the Law of Evidence: A Comparative Analysis
The Impact of DNA Evidence on Criminal Investigations and Courtroom Proceedings
The Use of Forensic Science in Establishing Identity: A Critical Examination
The Admissibility and Reliability of Eyewitness Testimony in Criminal Trials
The Privilege against Self-Incrimination: Balancing Individual Rights and the Interests of Justice
The Role of Hearsay Evidence in Modern Legal Systems: A Comparative Study
The Use of Surveillance Technology in Criminal Investigations: Legal and Ethical Considerations
The Admissibility of Polygraph and Brainwave Technologies as Evidence in Court
The Intersection of Law and Neuroscience: Implications for the Law of Evidence
The Impact of Social Media Evidence on Legal Proceedings: Privacy and Authentication Issues
The Role of Character Evidence in Criminal Trials: Relevance, Admissibility, and Policy Considerations
The Use of Statistical and Probabilistic Evidence in Court: Challenges and Limitations
The Admissibility of Confessions and Statements Obtained under Interrogation: The Role of Police Tactics and Human Rights
The Use of Expert Testimony in Cases of Mental Health and Insanity: Challenges and Best Practices

The Law of Evidence encompasses a wide range of intriguing research topics that delve into the core principles, evolving practices, and contemporary challenges in the field. By exploring these research paper topics, scholars and legal practitioners can contribute to the advancement of evidentiary rules, enhance the administration of justice, and foster a deeper understanding of the intricate dynamics of evidence in legal proceedings.

These topics cover various aspects of the law of evidence and can serve as a starting point for your research paper. Remember to narrow down your focus and tailor the topic to your specific interests or jurisdiction if necessary.

Personal Bankruptcy Law and Innovation around the World

Because corporate limited liability protects founder’s personal assets, creditors often require founders of new, small and risky firms to contract around limited liability by pledging their personal assets as collateral for loans to their firms. This makes personal bankruptcy law (PBL) relevant to corporate finance. We find that pro-debtor PBL reforms increase the number of patents filed, citations to those patents, and début patents by firms with no previous patents. These reforms also redistribute innovation across industries in closer alignment to its distribution in the U.S., which we take to approximate industry innovative potential. These effects are driven by firms without histories of high-intensity patenting, and are damped in countries that impose minimum capital requirements on new firms. Firms with largescale legacy technology may avoid radical innovations that devalue that technology. Consequently, new, initially small and risky firms often develop the disruptive innovations that contribute most to economic growth. Consistent with this, we also find pro-debtor PBL reforms increasing value-added growth rates across all industries, and by larger margins in industries with more innovation potential. Our difference-in-differences regressions use patents and PBL reforms for 33 countries from 1990 to 2002, with subsequent years used to measure citations to patents in this period.

We thank seminar participants at Chinese University of Hong Kong and Thammasat University. This research was supported by Randall Morck's Yangtse River award at the Wenlan School of Economics. The views expressed herein are those of the authors and do not necessarily reflect the views of the National Bureau of Economic Research.

MARC RIS BibTeΧ

Download Citation Data

Working Groups

Indian Journal of Law and Legal Research ISSN: 2582-8878 | PIF: 6.605 Indexed at Manupatra, Google Scholar, HeinOnline & ROAD

INDIAN JOURNAL OF LAW AND LEGAL RESEARCH

ISSN: 2582-8878 (O)

Subject Area: Law and Related Disciplines

Publication Impact Factor: 6.605

Plagiarism Limit - Upto 25 Percent

Plagiarism Software - Turnitin and Plagiarism X

Publication Frequency - Bi-monthly

CALL FOR PAPERS

The IJLLR is inviting authors across India and the Globe to contribute their pieces of academic writings for publication. Volume: Volume V Issue IV | Theme: Law & Related Disciplines

Perks: Certificates of Publication, Certificate of Excellence, Free DOI Link, Internship Opportunities, 48-hour Review Process, Indexed at Google Scholar, HeinOnline, Manupatra, ROAD & others.

* Verify our Manupatra, Google Scholar & ROAD Indexing by clicking the Buttons given above.

** Do not fall prey to journals making false claims regarding their Indexing at various databases.

IJLLR Journal is an online bi-monthly journal with 6 Issues per year. The Journal revolves around Socio-legal topics and is not restricted to any particular field or subject of law. The Journal promotes interdisciplinary research entailing detailed study of law with other disciplines in the contemporary era.

IJLLR aims to provide a platform where everyone related to the field of law can contribute their research work on any topic related to law and help create a quality open-access platform that can be used by anyone to gain or develop their knowledge and expertise in the subject of law.

Provide a detailed conceptualisation of socio-economic phenomenon and its interplay with law and policy-making.

Encourage interdisciplinary and comparative research to develop a holistic and multifaceted approach towards the complex issues of today’s society.

Critically and intellectually engage with contemporary issues and the discourse surrounding them.

Enable the development of legal intellect, critical analysis and quality research by promoting original legal writing.

PERKS OF GETTING PUBLISHED AT IJLLR

Publication Certificate - Certificate of publication is given to all the authors published in each issue without any additional cost. The certificate is given to the authors as soon as the publication is live.

Free DOI (Digital Object Identification) - A DOI is a string of numbers, letters and symbols used to permanently identify an article or document and link to it on the web. A DOI will help your reader easily locate a document from your citation.

Certificate of Excellence - The top 10 authors in each issue are given a Certificate of Excellence for their publication with other prizes.

Indexed: The Indian Journal of Law and Legal Research is indexed in reputable places like Google Scholar & Manupatra which makes the articles available to a wider community making the research available to all.

Hard Copy Available: The authors have the choice to get a hard copy of their Publication Certificate/Certificate of Excellence on payment of a minimal fee after their manuscript is published.

No Delays and Timely Process - The whole review process takes up to 72 hours (1-3 days). The final publication after the payment of the processing fee is done within 24-72 hours (1-3 Working days).

Internship Opportunities: The top authors are provided with internship opportunities.

Chance to be a Student Editor: Students are also provided with an opportunity to work as an editor for the Indian Journal of Law and Legal Research .

TYPES OF SUBMISSIONS ACCEPTED

The IJLLR Journal invites original, unpublished manuscripts from all academicians, authors, legal professionals and Law students in the following categories:

I. Long Articles (3000-6000 words)

II. Essays/Short Articles (1500-3000 words)

III. Case Notes and Legislative Comments (1200-2500 words)

Submissions in this category are expected to engage with the theme and literature of a particular topic comprehensively. The article must survey current practice in the field, identify any lacunae and offer innovative reassessment along with constructive suggestions. Theoretical pieces are also welcome in this category.

Essays/short articles are more concise in scope and are focused on a particular issue and offer new perspectives and critical insights on the selected topic. They offer clearly identifiable arguments and may provide different ways of conceptualizing the selected issue.

This category is meant for the analysis of any contemporary judicial pronouncement, legislative action, or policy proposal. Notes and Comments must trace the line of cases in which the decision appears and comment on its implications on the evolution of that branch of law. Similarly, a legislative comment or policy proposal must identify the object and expected impact of the legislative action/policy proposal in question.

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Open access
Published: 16 August 2024

EU-US data transfers: an enduring challenge for health research collaborations

Teodora Lalova-Spinks ORCID: orcid.org/0000-0002-4421-994X 1 , 2 ,
Peggy Valcke 2 ,
John P. A. Ioannidis 3 na1 &
Isabelle Huys 1 na1

npj Digital Medicine volume 7 , Article number: 215 ( 2024 ) Cite this article

Metrics details

Health policy
Medical research

EU-US data transfers for health research remain a particularly thorny issue in view of the stringent rules of the EU General Data Protection Regulation (GDPR) and the challenges related to US mass surveillance programs, particularly the manner in which US law enforcement and national security agencies can access personal data originating from the EU. Since the entry into force of the GDPR, evidence of impeded collaborations is increasing, particularly in the case of sharing data with US public institutions. The adoption of a new EU-US adequacy decision in July 2023 does not hold the promise for a long-lasting solution due to the risks of being challenged and invalidated – yet again – at the Court of Justice of the EU. As the research community is calling for answers, the new proposal for a European Health Data Space regulation may hold a key to solving some of the existing issues. In this paper, we critically discuss the current rules and outline a possible way forward for transfers between public bodies.

Introduction

Health research relies on the use and reuse of special categories of personal data (as defined under Article 9 of the General Data Protection Regulation 2016/679 (GDPR)), such as data related to health (Article 4(15 GDPR) and genetic data (Article 4(13) GDPR)). Moreover, several types of health research are heavily dependent on the exchange of data between countries (e.g., rare disease research) 1 , and all health research would benefit from greater, meaningful international collaboration. International team science, networks, and consortia have been instrumental in making progress in many research areas 2 , 3 . The need to share health data across borders was further highlighted by the COVID-19 pandemic 4 .

The current legal framework for the conduct of (cross-border) research using health data in the EU is complex and divergent 5 , 6 , 7 . Clinical trials are strictly regulated and subject to mandatory ethical oversight. In this regard, the international ethical and fundamental rights rules are key. Moreover, several layers of laws interplay. First, the regulations and directives adopted at the EU level, such as the Clinical Trials Regulation 536/2014, the Medical Device Regulation 2017/746, the In Vitro Medical Devices Regulation 2017/746, and the General Data Protection Regulation (GDPR). Furthermore, new legal initiatives, as first outlined in the European Strategy for Data, have been recently adopted or are soon coming up, and hold the promise of both allowing more data to be used for research, as well as potentially further complexifying the navigation of the overall framework (e.g., Regulation 2022/868 (the Data Governance Act), Regulation 2023/2854 (the Data Act), and the European Health Data Space proposal). Each of the 27 EU Member States has national laws in the field of health research that are often conflicting. For instance, biobanking is crucial for clinical trials, but legislation for it is not harmonized at the EU level.

Even though the GDPR aimed at harmonizing the rules for the use of personal data among EU Member States, in practice fragmentation remains due to the differences in the national implementation of the law, and its diverging interpretation at local, regional, and company level 7 . In addition, although the GDPR laid out a regime for the use of personal data in scientific research 8 , 9 , the regulation has been criticized on various grounds, including the disruption of secondary use of data 10 . The health research community faces struggles with sharing data with colleagues outside of the EU, due to GDPR restrictions on international data transfers 11 , 12 , 13 as well as legal obstacles on the side of non-EU countries, such as sovereign immunity (e.g., as enjoyed by federal institutions in the US, discussed below). Under the GDPR, transfers of personal data to non-EU countries or international organizations can only occur if the data is adequately protected. The rationale is that third countries may not have the same data protection standards as the EU, which could put individuals’ personal data at risk (recitals 101, 103 GDPR). Here we discuss the impediments that are posed and efforts to overcome them, focusing explicitly on EU-US collaborations. Many of these issues nevertheless apply to collaborations between the EU and other countries.

Impeded EU-US collaborations

Evidence suggests that health research collaborations between the EU and the US have been impeded since the GDPR entered into force, particularly when it comes to sharing personal data with US public institutions. With respect to federal institutions (e.g., institutions established under the Public Health Services Act, such as the US Department of Health and Human Services, its operating divisions and agencies including the National Institutes of Health (NIH), or colleges and universities funded and governed by the US federal government), the challenges are caused by the sovereign immunity that they enjoy 11 , 13 . This means that they cannot provide EU research participants with enforceable data subject rights and effective legal remedies 14 , 15 . State institutions (i.e., established under state constitutions or state statutes) may be subject to similar restrictions in state or local laws 10 .

Forty-seven clinical research sites in the EU could not enroll in NIH-sponsored COVID-19 therapeutic trials due to data transfer restrictions and thirty-five projects assessing genetic and environmental influences on cancer risk cannot move forward 16 . Other examples include reports of approximately forty clinical and observational studies on risk factors and exposures for cancer that were delayed because of the existing legal challenges 12 , 17 , a 25-year-long diabetes study that was derailed for 18 months 12 , the International Genomics of Alzheimer’s Project having to run isolated analyses of results due to inability to share data in real time 12 , 18 , and multiple research projects within the National Cancer Institute (NCI) Cohort Consortium that were suspended or delayed as the European partners could not proceed with data transfers 19 . Projects where disruptions, delays or cancellations become publicly discussed are the tip of the iceberg. Most disruptions do not reach public discussion. Moreover, many trans-continental projects do not even get launched or may modify their plans (and diminish their scope and value) because of anticipated data transfer obstacles. Even when projects do materialize somehow, the quality of the collaborative science sometimes may suffer from the restrictions.

The legal framework

Based on the guidance of the European Data Protection Board (EDPB) 20 and the case law of the Court of Justice of the EU (CJEU) 14 , 21 , 22 , international transfers under the EU rules comprise both the disclosure of data by transmission and any other making available of data, including remote access 23 . A definition of international transfer, however, is not present in the GDPR itself. It is the responsibility of the data controller to choose the suitable data transfer provision. The regulation provides several routes for valid data transfers, namely: (1) adequacy decisions (Article 45), (2) appropriate safeguards (Article 46), and (3) derogations for specific situations (Article 49).

An adequacy decision is a decision of the European Commission that a third country ensures a level of data protection that is “essentially equivalent” to that ensured within the EU. With an adequacy decision in place, transfers of personal data can proceed freely, subject to the conditions in the decision itself. Until now, the European Commission has recognized only fourteen countries as providing adequate protection. In the context of EU-US data transfers, there have been two adequacy decisions (Safe Harbor and Privacy Shield) that legitimized private sector transfers made to US organizations that self-certified to the framework. The Privacy Shield also covered transfers of pharmaceutical and medical device companies, as well as transfers for regulatory and supervision purposes to US regulators. However, the needs of public sector researchers were not addressed 24 . Both adequacy decisions were invalidated by the CJEU due to unjustified interferences with EU fundamental rights 14 , 22 . The issue lies with US surveillance laws such as Section 702 of the US Foreign Intelligence Surveillance Act (FISA). More specifically, the court highlighted two problems with the US system: (1) US mass surveillance programs did not respect the principle of proportionality under EU law, meaning that they were unnecessarily broad and included inadequate safeguards to protect individuals’ fundamental rights and (2) it lacked effective judicial review mechanisms for EU citizens 14 . At the time that the Privacy Shield was invalidated, it was reported that 137 firms in the health information technology sector, 90 firms in biopharmaceuticals, 56 in medical devices, and 36 in health care services were relying on it for their transatlantic data transfers 25 .

In July 2023, the European Commission adopted a new EU-US adequacy decision, the so-called EU-US Data Privacy Framework (DPF) 26 , thus increasing the number of recognized countries to fifteen. The recent Executive Order 14086 of the US President 27 was considered by the Commission as decisive for its assessment whether the required fundamental rights standard is provided in the US. However, commentators have already noted shortcomings in the EU-US DPF that contradict the requirements of the CJEU 28 , 29 . Less than two months after its adoption, the DPF was challenged before the CJEU 30 . While it is highly likely that it will take several years for the court to reach a decision 31 , the expectations that the DPF will not provide a long-term solution for EU-US data transfers already abound 29 .

In the absence of an adequacy decision at the level of the EU-US, personal data transfers can occur based on appropriate safeguards, which are exhaustively enumerated in the GDPR (Article 46). At the moment, the only safeguards developed in a standardized manner are the standard contractual clauses (SCC). SCCs are model contract clauses that have been approved by the European Commission and which impose GDPR-derived obligations on the recipients of the data. The Commission issued a modernized set of SCCs in 2021 32 . Following the CJEU’s judgment on Data Protection Commission v. Facebook Ireland Ltd., Maximilian Schrems (so-called Schrems II) 14 , researchers now need to assess and confirm whether a third country (such as the US) provides an “essentially equivalent” level of data protection, and if not, whether additional safeguards can be implemented so that the equivalent protection can be ensured in another way 24 , i.e., they need to conduct a transfer impact assessment. This assessment of the law and practice of the third country has been referred to in the literature as a “mini-adequacy” decision 33 and is likely to exceed the legal and financial resources of researchers exporting data 24 , 33 . Furthermore, the SCCs are not viable when the recipient entity is an arm of the US government, such as the NIH, or public universities or academic medical centers. This is linked to the issues described above with respect to the US mass surveillance programs, as well as the sovereign immunity enjoyed by US federal institutions 10 , 11 , 13 , 15 , 34 . The US Privacy Act of 1974 has put in place a sovereign immunity waiver for US citizens and permanent residents that grants them enforceable rights and legal remedies. Bentzen et al. have suggested that this waiver should be extended to non-US research participants whose data is processed by US federal institutions 13 , but until the present moment, this has not occurred. Since the entry into force of the GDPR, the NIH completed only two successful data use agreements with European partners. Both of these agreements were based on arrangements concluded under Article 46 GDPR, which are likely not scalable due to the reasons described above.

Article 46 also contains provisions that pertain specifically to transfers of personal data from EEA public bodies or authorities to public bodies in third countries or international organizations. Namely, putting in place appropriate safeguards by either (1) a legally binding and enforceable instrument between public bodies (Article 46(2)(a) GDPR), or (2) by provisions to be inserted into administrative arrangements between public bodies and subject to authorization from the competent data protection authority (Article 46(3)(b) GDPR).

As a final possibility under the GDPR, researchers are left with derogations for specific situations under Article 49. The derogations are a set of seven conditions, such as the explicit consent of the data subject for the transfer (Article 49(1)(a)), the transfer being necessary for important reasons of public interest (Article 49(1)(d)), or the transfer being necessary to protect the vital interests of the data subject (Article 49(1)(f)). Any one of the conditions alone suffices to allow the data transfer. These conditions, however, cannot be used for repetitive transfers (Article 49(1) GDPR) 35 .

If none of the above tools are available, the GDPR offers a last resort option under Article 49(1) paragraph 2, named by Bentzen et al. a “safety valve derogation” 36 . This option is applicable only upon fulfilling a complex set of cumulative conditions, i.e., the transfer should: (1) not be repetitive, (2) concern only a limited number of data subjects, (3) and be necessary for the purposes of compelling legitimate interests pursued by the controller (e.g., hospital, research institute, pharmaceutical company, or other) which are not overridden by the interests or rights and freedoms of the data subjects; the controller should (4) assess all the circumstances surrounding the data transfer, (5) provide suitable safeguards with regard to the protection of the personal data, (6) inform the data protection authority of the transfer, and (7) inform the data subjects of the transfer and on the legitimate interests pursued. Until a recently documented case, discussed below, this option had never been used to our knowledge.

The research community calls for solutions

The challenges associated with EU-US health data transfers have been subject to discussions by the research community. Numerous calls for finding a long-term legal solution have been issued in the past years. A joint initiative of the European Federation of Academies of Sciences and Humanities (ALLEA), the European Academies’ Science Advisory Council (EASAC), and the Federation of European Academies of Medicine (FEAM) recommended that a workable way forward under Article 46 GDPR (i.e., use of appropriate safeguards) should be found – either by having the wording of the existing SCCs revised or by creating additional SCCs for scientific research 11 , 34 , similar to recommendations advanced by Hallinan et al. and Ursin et al. 19 , 24 . Bentzen et al. supported use of the narrow “safety valve derogation” under Article 49(1)(2) GDPR 36 . They provided recommendations on how to fulfill the challenging conditions that accompany this tool and received positive feedback for its first-time use from the Norwegian data protection authority. The tool allowed the authors to re-enable data transfers in an impeded clinical trial. Although due to its resource-demanding nature, and the uncertainty as to whether other EU data protection authorities would embrace it, this tool does not provide the needed long-term solution, it is a successful example for a step in the right direction. Finally, many other scholars do not provide concrete suggestions but have repeatedly urged EU and US policymakers to find a viable solution 3 , 10 , 13 , 18 .

In addition, researchers have also looked for technical solutions to the existing challenges. As put by Hallinan et al., there are technical measures that do not involve actual data transfers and thus offer pathways to avoid the hurdles posed by GDPR rules 1 . Technical ways forward may include data visitation 24 , federated analyses 37 , and other privacy-enhancing innovations, but currently are still riddled with practical and legal limitations for their employment 37 . The Research Data Alliance Working Group on Artificial Intelligence and Data Visitation, established under a grant of the European Open Science Cloud (EOSC), is an example of a recent initiative that aims to address the ethical, legal, and social challenges surrounding the uptake of such technical tools 38 .

The European Health Data Space as a way forward?

In May 2022, the European Commission published a proposal for a new EU regulation – the European Health Data Space (EHDS) 39 , which aims to build a legal framework consisting of trusted EU and Member State governance mechanisms and a secure processing environment that would allow researchers to access relevant health data. The Council of the EU and the European Parliament reached a provisional agreement on the new law in March 2024 40 , and formal adoption by both institutions is expected later in 2024, following legal-linguistic revision. The new law establishes, inter alia, rules on the secondary use of personal health data, including the use and reuse of data for scientific research. A key role here will be played by health data access bodies (HDABs), foreseen to be public sector bodies established in EU Member States, which will be responsible for issuing permits and providing access to data in a secure processing environment (Articles 36, 37, 46 EHDS; here after reference is made to the most recent publicly available version of the EHDS regulation text, which is the provisional agreement from 18 March 2024). If several HDABs exist in one Member State, a coordinator HDAB shall be designated among them (Article 36(1) EHDS). Additionally, each Member State will have to designate a national contact point (which may be the coordinator HDAB) responsible for making health data available in a cross-border context (Article 52(1) EHDS).

The EHDS regulation contains provisions that would enable third countries – including the US – to integrate their own national points of contact with the EHDS infrastructure (Articles 47b, 52(5) and (6), 63 EHDS). To be admitted in the EHDS infrastructure, third countries would have to go through an assessment – performed by the European Commission and representatives of the national points of contact of the EU Member States - of compliance with the legal, organizational, technical, and security requirements envisaged in the EHDS regulation. Access to data in the EHDS will be performed only on an EU infrastructure and according to robust technical, organizational, and security requirements determined by the EU policymakers. Moreover, third countries will have to provide access to EU data users on equivalent terms and conditions.

Molnár-Gábor et al. have already pointed out the need to explore this opportunity as a solution to the challenges the GDPR presents for international data transfers 33 . In particular, in an article written prior to the institutional agreement on the EHDS regulation, they recommended that access of researchers in non-EU countries to the EHDS should not be treated as an international data transfer, while also making a pleading to reconsider the concept of “data transfer” itself (i.e., to not encompass mere access to data) 33 .

It is out of the scope of this perspective paper to discuss a (possible) redefining of the notion of “data transfer”. Moreover, the most recent publicly available version of the EHDS regulation confirmed that access of researchers from non-EU countries to the EHDS infrastructure will remain subject to compliance with the rules on international transfers contained in Chapter V of the GDPR (Article 52(2), Article 63 EHDS). While we agree with Molnár-Gábor et al. that the EHDS should be explored as a possible solution for cross-border research collaborations, we argue for a different route than them, one particularly interesting with respect to solving the challenges faced by US public institutions involved in health research collaborations.

To join the EHDS infrastructure, a transfer mechanism under the GDPR (as described above) would still need to be identified. As it could be expected that EU and third country national contact points for cross-border access will be public sector bodies, we suggest that the mechanisms under Article 46(2)(a) and Article 46(3)(b) GDPR (see above) should be particularly explored. The EDPB has previously adopted detailed guidelines on the application of these provisions 41 . As the European Commission is expected to adopt implementing acts establishing the compliance of third countries national contact points with the relevant EHDS and GDPR rules (Article 52(2) EHDS), a pragmatic solution could be to consider these acts, alongside the stringent data governance framework established by the EHDS itself, as sufficient to satisfy the appropriate safeguards criterion. Administrative arrangements put in place between EU-US public bodies acting as national contact points could refer to the implementing acts.

However, the success of this approach would depend on several conditions. First, on whether the European Commission, in its implementing acts, can provide a clear pathway as to which GDPR data transfer mechanism should be relied upon in the scope of cross-border access to data under the EHDS framework, with our recommendation being to explicitly refer to the application of Article 46(2)(a) and Article 46(3)(b) GDPR. Second, on whether the US authorities can accept to consider and prepare their application as third country in the to-be-established EHDS infrastructure, and specifically to identify the best positioned public institution to act as national contact point. Third, on whether the US would be ready to waive sovereign immunity for its national contact point.

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Acknowledgements

The authors would like to respectfully acknowledge the invaluable contributions by the late Mr Robert Eiss (US National Institutes of Health) who gave constructive comments and shared information about NIH projects impacted by the existing data transfer rules (examples cited in this paper). TL-S conducted the work for this paper as part of her PhD project at KU Leuven (2018-2023). Her PhD was supported with a scholarship awarded by the Research Foundation–Flanders (FWO), Project No. 11H3720N/11H3722N. This paper was conceived and drafted during TL-S’ research visit at Stanford University (February - March 2023). The research visit was conducted with travel and accommodation support provided by the ExACT project (European network staff eXchange for Integrating precision health in the health Care sysTems). ExACT has received funding from the European Union’s Horizon 2020 research and innovation programme MSCA-RISE-2017 Marie Skłodowska-Curie Research and Innovation Staff Exchange (RISE) under the grant agreement 823995. At the moment of publication of this article, TL-S is employed at the Department of Public Health and Primary Care, Faculty of Medicine and Health Sciences, Ghent University. The work of JPAI is supported by an unrestricted gift from Sue and Bob O’Donnell.

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Clinical Pharmacology and Pharmacotherapy, Department of Pharmaceutical and Pharmacological Sciences, KU Leuven, Leuven, Belgium

Teodora Lalova-Spinks & Isabelle Huys

Center for IT & IP law (CiTiP), KU Leuven, Leuven, Belgium

Teodora Lalova-Spinks & Peggy Valcke

Meta-Research Innovation Center at Stanford, Stanford University, Stanford, CA, USA

John P. A. Ioannidis

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T.L.-S., J.P.A.I., P.V., and I.H. conceived the idea for this manuscript. T.L.-S. developed the first draft. J.P.A.I., P.V., and I.H. revised the manuscript. All authors read and approved the final manuscript.

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Lalova-Spinks, T., Valcke, P., Ioannidis, J.P.A. et al. EU-US data transfers: an enduring challenge for health research collaborations. npj Digit. Med. 7 , 215 (2024). https://doi.org/10.1038/s41746-024-01205-6

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Law of Police Searches Research Paper

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.

Bibliography:

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Kant, I. (1996): Metaphysics of morals (M. Gregor, Trans. & Ed.). Cambridge, UK: Cambridge University Press.
Kelsen, H. (1970). Pure theory of law (2nd ed.). Berkeley: University of California.
Lembcke, O. W. (2009). Law. In H. J. Birx (Ed.), Encyclopedia of time (Vol. 2, pp. 772–774). Thousand Oaks, CA: Sage.
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Luhmann, N. (2004). Law as a social system. Oxford, UK: Oxford University Press.
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Malinoswky, B. (1926). Crime and custom in savage society. London: Routledge & Kegan Paul.
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Savigny, F. C. von (1975). Of the vocation of our age for legislation and jurisprudence. New York: Arno.

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