Doubt

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In defence of doubt; a much maligned force for good in the world. From the first lecture in Laws 101, we are told the interests of a legal system are certainty. Thereafter, we are taught with every waking breath to strive for it, in granular, particular detail, at the exclusion of all else: there is not a lawyer on the planet who has not stuck in a for the avoidance of doubt. Note the terminology — avoidance, as if you want to evacuate your bowels of this canker, ab initio, and repose in a sterile, predictable world of utter certainty.

• Certainty in the sense of being solved: if you have solved the puzzle no-one wants to play the game. This is trivial to understand for noughts and crosses; we fancy we can get there with checkers, but chess and go while, technically capable of being solved, have not got there yet. But if at any point on the board there is an optimal move — and in a zero-sum game, there must be — then that includes the first move. In which case there is no longer a point in playing. It becomes not a competition of wits, but of memory and data processing. That’s no longer interesting.

• Certainty in the sense of utter truth: If there is a single truth and it is deductible, then any inconsistent view is at best sub-optimal: wasteful and possibly dangerous. There are objective grounds for suppressing any views other than the true one.

• Certainty in the sense of favouring the paper over the relationship: A contract, remember is a second-order derivative account of a business relationship. We hope, once it is inked, one will not have to look at it again. A sense of certainty about the contents of the contract disincentives proactive management of a relationship which, being a relationship, and all, is a dynamic thing. Hence how retrograde the idea of a no oral modification clause: this is to afford a static written memorial priority over a living, organic relationship.

• Certainty as a function of a simple system: If we take it that truth is a property of a sentence, not of the world and a sentence is an artefact of a language, then language would have to be a closed logical system, to which both (or all) parties to that truth were fully conversant. Not only, typically, are they not — languages are quite loose things and hard to draw boundaries — but languages are not closed logical systems. This we owe to Goedel. We can, with our wordgames, minimise indeterminacy (legal language is a good example of where we do this, by convention eliminating metaphor, avoiding slang and informal construction and where, even after that, there is potential ambiguity, minimising it with definitions, but even there, the best we can hope for is that our static document can describe the order, state and function of a simple, or complex system. It cannot describe a complex system (essentially one where individual agents with conflicting interests and language structures interact. But commerce occurs in exactly that type of environment.