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===The [[commercial imperative]] of doubt===
===The [[commercial imperative]] of doubt===
At the heart of the commerce is ''[[trust]]'' and ''[[credit]]'': the expectation that one will ''[[be a good egg]]''. This is the ravishing beauty of [[laissez-faire]]: alone among polities it gets the alignment of [[Conflict of interest|interests]] right. It need not hope that actors are saints, or even that they will act out of public-spiritedness; indeed, it presumes they will not. The operating assumption of a market system is, “everyone for oneself.” ''There are no [[ally|allies]]''.  
At the heart of the commerce is ''[[trust]]'' and ''[[credit]]'': the expectation that one will ''[[be a good egg]]''. This is the ravishing beauty of [[laissez-faire]]: almost alone among polities, it gets the alignment of [[Conflict of interest|interests]] right. It need not hope that actors are saints, or even that they will act out of public-spiritedness; indeed, it presumes they will not. The operating assumption of a market system is, “everyone for oneself.” ''There are no [[ally|allies]]''.  


Yet, through the magic of the [[iterated prisoner’s dilemma]], we are nonetheless incentivised to ''do the right thing'': the long-term payoff of repeated co-operation grossly outweighs the short-term bump of a single defection. We build not transactions, but relationships. Not ''goals of reward'', but ''systems of trust''. As they develop, relationships grow: the dinks and scuffs we sustain along the way toughen us. If we manage them well, our relationships grow stronger. Relationships are, in this way, [[anti-fragile]]. We must be vulnerable. We have to put ourselves at risk to earn a greater reward.
Yet, through the magic of the [[iterated prisoner’s dilemma]], we are nonetheless incentivised to ''do the right thing'': the long-term payoff of repeated co-operation grossly outweighs the short-term bump of a single defection. We build not transactions, but ''relationships''. Not ''goals of reward'', but ''systems of trust''. As they develop, relationships grow: the dinks and scuffs we sustain along the way toughen up: if we manage them well, our relationships grow stronger. Relationships are, in this way, [[anti-fragile]]. We gain from being vulnerable. We have to put ourselves at risk to earn a greater reward.


Relationships develop as ''markets'' develop, as ''technology'' develops, as ''competitors'' develop and as ''threats'' develop. Markets, technology, competitors and threats ''interact''. The landscape shifts. This is [[complex]], [[non-linear]] and [[unpredictable]]. We do not know where we are going. We cannot be [[certainty|certain]] about our future. A contract which tries, with infinite detail, to anticipate and codify the future ossified: it commits us to obsolescence. It entrenches ways of working which will become impractical. It ''blinds'' us to new ones which are resolutely better.  
Relationships develop as ''markets'' develop, as ''technology'' develops, as ''competitors'' develop and as ''threats'' develop. Markets, technology, competitors and threats ''interact''. The landscape shape-shifts. This is [[complex]], [[non-linear]] and [[unpredictable]]. We do not, now, know where we are going. We cannot be [[certainty|certain]] about our future. A contract which tries, with infinite detail, to anticipate and codify the future only ossified it: in presuming our present boundaries are fixed, it commits us to just one kind of certainty: ''obsolescence''. It entrenches perspectives; binds us to methods which will become impractical. It ''blinds'' us to new ones which will be more suitable are resolutely better.  


An ode to [[certainty]] ''fossilises'' our commercial expectations on the day we form them.  
An ode to [[certainty]] ''fossilises'' our commercial expectations on the day we form them.  
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Worse yet, it encourages those already in relationships to consider matters settled; impervious to improvement — even to ''discussion''. They might even ''avoid'' talking to each other, for fear of prejudicing their carefully constructed legal “protections”.<ref>Often unjustifiably. See: [[estoppel by waiver]].</ref> They may even feel, without [[Legal]]’s sanction, they ''cannot''. Things are at a pretty pass when market counterparties avoid talking to each other.  
Worse yet, it encourages those already in relationships to consider matters settled; impervious to improvement — even to ''discussion''. They might even ''avoid'' talking to each other, for fear of prejudicing their carefully constructed legal “protections”.<ref>Often unjustifiably. See: [[estoppel by waiver]].</ref> They may even feel, without [[Legal]]’s sanction, they ''cannot''. Things are at a pretty pass when market counterparties avoid talking to each other.  


This is exactly opposite to the optimal outcome. If there is a problem, ''get on the phone''. ''Talk''. Flex that relationship. ''Reinforce'' the relationship capital you have so painstakingly built. In a positive-sum relationship, each party’s best outcome is the other’s wellbeing. The longer they live, and the longer the relationship can last, the better for everyone. The value of the relationship to each side is a function of ''time''. This is ''logically true'': if a relationship has a positive value any value greater than nil — then prolonging it is the best outcome. If the relationship has a ''negative'' value for either side, that side should end it now, regardless of its prognosis. Why wait?
This is not the optimal outcome. If there is a problem, ''get on the phone''. ''Talk''. Flex that relationship. ''Reinforce'' the capital you have so painstakingly built. In a [[positive-sum game|positive-sum relationship]], each party’s best outcome ''is the other’s wellbeing''. The longer our dancing partners live, ''the longer we can dance''.<ref>There is an uncomfortable echo of Chuck Prince’s notorious statement here, I realise.</ref> The value of a relationship is a function of ''time''. This is logically true for any relationship with a value that is not zero. For any positive-sum relationshhip prolonging it is the best outcome. (Any relationship you can’t reliably turn into a positive one, you should end now. Why wait?)


Here, doubt is the best motivating factor; a lurch towards [[certainty]] the worst impulse. An unforeseen scenario presents you with a dilemma. How you react to it might affect your client. What to do? Do you ask your client, or just check the [[verbiage]] and, if the coast is clear, carry on?  
Here, doubt is the best motivating factor; the comforting lurch towards [[certainty]] the worst impulse. An unforeseen scenario presents you with a dilemma. How you react to it might affect your client. What to do? Do you ask your client, or just check the [[verbiage]] and, if the coast is clear, carry on?  


The correct answer, which will rarely issue from the lips of a [[legal eagle]], is, “well, why in God’s name are you asking ''me''? Shouldn’t you ask your ''client''?” For, really, what possible use can a clause your legal teams hammered out 10 years ago be in getting to the heart of the matter? If, now, your client would ''not'' like you to behave in this way, what difference does it make, to your ongoing relationship, that a 10-year-old document says that you ''can''? Or, for that matter, ''vice versa''?<ref>Much more likely will be that it ''won’t'' say that you ''can’t'', which doesn’t really help anyone.</ref>
The correct answer, which will rarely issue from a [[legal eagle]]’s beak is, “well, why in God’s name are you asking ''me''? Shouldn’t you ask your ''client''?”  


In any case, isn’t that kind of doubt ''creative''; an opportunity to have a constructive conversation, which might lead who knows where? Here a ''surfeit'' of [[certainty]] leads to two bad outcomes: either a commercially damaging decision to disregard your client’s expectations, or an expensive, slow and clumsy way of seeking its permission, where a quick phone call might have done the job and led to other opportunities. Wheeling out your [[legal eagle]]s to “paper” an [[amendment]], however benign you might believe it to be, will arouse your client’s suspicions:  especially if, as inevitably they will, your legal team concoct five pages of dreary [[boilerplate]] to articulate it.<ref>Note here, recent efforts by the English courts to entrench the lawyer’s role in commercial negotiations through [[no oral modification]] clauses.</ref>
For, really, what possible use is a clause your legal teams hammered out 10 years ago, in getting to the heart of the matter? If, now, your client would ''not'' like you to behave in this way, what difference does it make, to your ongoing relationship, that an ancient document says that you ''may''? Or, for that matter, ''vice versa''?<ref>Much more likely, [[the contract is silent|it ''won’t'' say you ''can’t'',]] which doesn’t really help anyone.</ref>  


Ultimately, where there is ''trust'' between the counterparties, and their relationship stays healthy, all you should need is a [[cocktail napkin]]. Really robust legal advice should be designed to keep things, to the greatest extent, so that neither party feels the need for anything more.
In any case, isn’t that kind of doubt ''creative'': an opportunity for a conversation, which might lead, who knows where?


If your relationship is such that you feel the need to go to your contract, you’ve already lost.
Here a ''surfeit'' of [[certainty]] leads to bad outcomes: a damaging decision to disregard your client’s expectations, or a clumsy way of seeking its permission, where a quick phone call might have done the job and led to other opportunities. Wheeling out your [[legal eagle]]s to “paper” an [[amendment]], however benign you might believe it to be, will arouse your client’s suspicions: especially if, as inevitably they will, your legal team concocts five pages of dreary [[boilerplate]] to articulate it.<ref>Note here, recent efforts by the English courts to entrench the lawyer’s role in commercial negotiations through [[no oral modification]] clauses.</ref>
 
Ultimately, where there is ''trust'' between the counterparties, and their relationship stays healthy, all you should need is a [[cocktail napkin]]. Really robust legal advice should be designed to keep things, as far as you can, so that neither party feels the need for anything more.
 
If you have to go to your contract to save your relationship, you’ve already lost it.


===The [[complexity]]-appropriateness of doubt===
===The [[complexity]]-appropriateness of doubt===
An aspiration of [[certainty]] is appropriate if you have a [[simple]] system. Certainty is the stuff of [[algorithm]]; of formal logic, of if-''this''-then-''that'' statements. Where you are ''certain'' you can deploy [[playbook]]s and [[runbook]]s, your machines and people run on autopilot and your contract is little more than a [[service level agreement|schedule of works]].  
[[Certainty]] is appropriate to a [[simple]] system. It is the stuff of [[algorithm]]; of formal logic, of if-''this''-then-''that'' statements; of an equation to be solved. Where you are ''certain'' you can deploy [[playbook]]s and [[runbook]]s, your machines run on autopilot, your people are scarce and your contract is little more than a [[service level agreement|schedule of works]].  


This is the twilight world of diminishing margins where, as dusk falls, we scramble around collecting ever fewer pennies in front of the onward progress of the same, monstrous, [[Entropy|entropic]] steam-roller. The better, and more widely dispersed our technology becomes, the less return there is to make. There is no assured annuity from computerisation. Just ask Eastman Kodak, Sears or the people who made aerogrammes.
As the information revolution unfolds, this is a twilight world.  Margins diminish. As dusk falls, we scramble around collecting ever fewer pennies in front of the onward progress of the same, monstrous, [[Entropy|entropic]] steam-roller. The better, and more widely dispersed our technology becomes, the less return there is to make. There is no assured annuity from computerisation. Just ask Eastman Kodak, Sears or the people who made aerogrammes. Ask the Parisienne artisan weavers  put out of work by Joseph Jacquard’s new, [[Jacquard loom|automated looms]]. They threw their wooden “''sabots''” into the machines to damage the gears — “''[[sabotage]]''”, they called it — but they could not fight history.  
   
   
A world in which all outcomes are known is one where ''no-one wants to play anymore''.  It is fully priced. Margins are at zero. There is no surprise; there is no risk; all punchlines are known. It is a life of noughts and crosses and not [[chess]], much less bridge or poker.<ref>''Tic-tac-toe'' to you, my American friends. The same will, in theory, one day be true of [[chess]] and [[go]] — but the calculations are exponentially harder.</ref> At every point during the game there is an optimal move: ''including at the first move''. If the optimal move is a [[known known]] (as it is in noughts and crosses, but is not ''yet'' in [[chess]]) the game is ''solved'': ''there is no point in playing''. There is an answer. The risk/reward outcome is already priced: ''nil''. This is not a competition of wits, but of memory and data processing power. That’s certainty, and it isn’t interesting. Do not pass go; do not collect $200.
A world in which all outcomes ''can be coded for'' is one where ''no-one wants to play anymore''.  It is fully priced. Margins are at zero. There is no surprise; there is no risk; all punchlines are known. It is a life of noughts and crosses<ref>''Tic-tac-toe'' to you, my American friends. The same will, in theory, one day be true of [[chess]] and [[go]] — but the calculations are exponentially harder.</ref> and not [[chess]], much less bridge or poker. At every point, there is a known optimal move: ''including at the first move''. If the optimal move is a [[known known]] (as it is in noughts and crosses, but is not ''yet'' in [[chess]]) the game is ''solved'': ''there is no point in playing''. This is not a competition of wits, but of memory and data processing power. That’s [[certainty]], and it isn’t interesting.  
 
[[Complex system]]s are not like that. They are “[[non-linear]]”. Non-adjacent components interact in unexpected ways. They do not have pre-defined boundaries. There is no common set of protocols; there are no agreed rules. Information is incomplete, ambiguous, and provisional. The system is not bounded; there is no complete data set: it is in perpetual flux. It is filled with independent systems and agents making their own independent decisions, each one of which alters the contours of the landscape. ''Everything is liable to change''.  


[[Complex system]]s are not like that. They are [[non-linear]]. They do not have pre-defined boundaries. There is no common set of protocols; there are no agreed rules. The ecosystem is in perpetual flux. It is filled with independent systems and agents making their own independent decisions, each one of which alters the contours of the landscape. ''Everything is liable to change''. In a [[complex system]], an [[algorithm]] will not work. It will get in the way. You need ''experienced experts'' who can make educated guesses and provisional decisions based on incomplete information. You need people who are flexible, adaptable, and smart. ''You need people who are good at handling [[doubt]]''. Doubt is not a regrettable externality: it is the ''essence'' of the value proposition. ''Doubt is risk''. Without doubt, there is no reward. We should not seek to avoid, much less eliminate doubt. We should ''seek it out''. The person who succeeds in commerce is the one who is best able to handle ''doubt''.
In a [[complex system]], [[algorithm]]s do not reliably work. They get in the way. You need ''experienced experts'' who can make educated guesses and provisional decisions based on incomplete information. You need people who are flexible, adaptable, and smart. ''You need people who are good at handling [[doubt]]''. Doubt is not a regrettable externality: it is the ''essence'' of the value proposition. ''Doubt is risk''. Without doubt, there is no reward. We should not seek to avoid, much less eliminate doubt. We should ''seek it out''. The person who succeeds in commerce is the one who is best able to handle ''doubt''.


===Doubt as a self-enforcing moderator of extreme behaviour===
===Doubt as a self-enforcing moderator of extreme behaviour===

Revision as of 07:34, 16 February 2021

The psychology of legal relations
I am not sure about this


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In defence of doubt; a much-maligned force for good in the world.

Certainty

From our first law lectures, we imbibed the fundamental interests and objectives of a liberal modern legal system, prominent among them being a profound wish for certainty. This is a matter of basic jurisprudence: we hear it, we think, “oh, yes; well, of course,” and nod along as our professor continues on her mellifluous way.[1]

Thereafter, we are taught with every breath to strive for certainty: to plunge as deep into the detail as we can before our lungs burst; to explore it, to unpack it, to revel in its granularity, to the exclusion of any other consideration. There are stained-glass elegies to it in our temples and institutions. It is in the weave of the priestly garments. We have carried its spirit like a holy candle, through our education and into professional practice.

Being an unattainable ideal, there is no end to our quest for certainty: we can only aspire to box on, unravelling and exhausting as many nefarious possibilities as we can find before our fingers bleed. We know we will always fall short of the perfect — they are the essences, the εἶδος; our worldly grapplings at them but a shabby imitation of a brilliant Platonic form.

And when our energies subside, we have the little pitons that we can jam into nearby fissures for yet further purchase on certainty: is there one amongst us who has never once whispered “for the avoidance of doubt”, not even to break some tedious impasse?

Such is our institutional suspicion of doubt. Note, in that dreadful phrase of hack lawyering, the word “avoidance” — as if doubt is so repulsive to our collective morality we should evacuate it, ab initio, from our bowels, and flush it away, whereupon only then can we lie back into cosy, sterile certitude.

Yet you need be no great student of our halting course through the cosmos to notice that, however hard we have lunged at this elusive definitude, we have had a hard time finding it.

Unexpected shit still, resolutely, happens. Were it not so deeply buried in the piles of our founding mythology, we might even wonder whether our quest for certainty wasn’t, in itself, the heart of the problem.

So here, readers, I present you a spirited, against-the-run-of-play, defence of doubt.

There are logical, psychological, commercial and philosophical grounds to protect it. Bear with me. Let us start at the top and work our way down to the elephants and turtles.

The commercial imperative of doubt

At the heart of the commerce is trust and credit: the expectation that one will be a good egg. This is the ravishing beauty of laissez-faire: almost alone among polities, it gets the alignment of interests right. It need not hope that actors are saints, or even that they will act out of public-spiritedness; indeed, it presumes they will not. The operating assumption of a market system is, “everyone for oneself.” There are no allies.

Yet, through the magic of the iterated prisoner’s dilemma, we are nonetheless incentivised to do the right thing: the long-term payoff of repeated co-operation grossly outweighs the short-term bump of a single defection. We build not transactions, but relationships. Not goals of reward, but systems of trust. As they develop, relationships grow: the dinks and scuffs we sustain along the way toughen up: if we manage them well, our relationships grow stronger. Relationships are, in this way, anti-fragile. We gain from being vulnerable. We have to put ourselves at risk to earn a greater reward.

Relationships develop as markets develop, as technology develops, as competitors develop and as threats develop. Markets, technology, competitors and threats interact. The landscape shape-shifts. This is complex, non-linear and unpredictable. We do not, now, know where we are going. We cannot be certain about our future. A contract which tries, with infinite detail, to anticipate and codify the future only ossified it: in presuming our present boundaries are fixed, it commits us to just one kind of certainty: obsolescence. It entrenches perspectives; binds us to methods which will become impractical. It blinds us to new ones which will be more suitable are resolutely better.

An ode to certainty fossilises our commercial expectations on the day we form them.

Worse yet, it encourages those already in relationships to consider matters settled; impervious to improvement — even to discussion. They might even avoid talking to each other, for fear of prejudicing their carefully constructed legal “protections”.[2] They may even feel, without Legal’s sanction, they cannot. Things are at a pretty pass when market counterparties avoid talking to each other.

This is not the optimal outcome. If there is a problem, get on the phone. Talk. Flex that relationship. Reinforce the capital you have so painstakingly built. In a positive-sum relationship, each party’s best outcome is the other’s wellbeing. The longer our dancing partners live, the longer we can dance.[3] The value of a relationship is a function of time. This is logically true for any relationship with a value that is not zero. For any positive-sum relationshhip prolonging it is the best outcome. (Any relationship you can’t reliably turn into a positive one, you should end now. Why wait?)

Here, doubt is the best motivating factor; the comforting lurch towards certainty the worst impulse. An unforeseen scenario presents you with a dilemma. How you react to it might affect your client. What to do? Do you ask your client, or just check the verbiage and, if the coast is clear, carry on?

The correct answer, which will rarely issue from a legal eagle’s beak is, “well, why in God’s name are you asking me? Shouldn’t you ask your client?”

For, really, what possible use is a clause your legal teams hammered out 10 years ago, in getting to the heart of the matter? If, now, your client would not like you to behave in this way, what difference does it make, to your ongoing relationship, that an ancient document says that you may? Or, for that matter, vice versa?[4]

In any case, isn’t that kind of doubt creative: an opportunity for a conversation, which might lead, who knows where?

Here a surfeit of certainty leads to bad outcomes: a damaging decision to disregard your client’s expectations, or a clumsy way of seeking its permission, where a quick phone call might have done the job and led to other opportunities. Wheeling out your legal eagles to “paper” an amendment, however benign you might believe it to be, will arouse your client’s suspicions: especially if, as inevitably they will, your legal team concocts five pages of dreary boilerplate to articulate it.[5]

Ultimately, where there is trust between the counterparties, and their relationship stays healthy, all you should need is a cocktail napkin. Really robust legal advice should be designed to keep things, as far as you can, so that neither party feels the need for anything more.

If you have to go to your contract to save your relationship, you’ve already lost it.

The complexity-appropriateness of doubt

Certainty is appropriate to a simple system. It is the stuff of algorithm; of formal logic, of if-this-then-that statements; of an equation to be solved. Where you are certain you can deploy playbooks and runbooks, your machines run on autopilot, your people are scarce and your contract is little more than a schedule of works.

As the information revolution unfolds, this is a twilight world. Margins diminish. As dusk falls, we scramble around collecting ever fewer pennies in front of the onward progress of the same, monstrous, entropic steam-roller. The better, and more widely dispersed our technology becomes, the less return there is to make. There is no assured annuity from computerisation. Just ask Eastman Kodak, Sears or the people who made aerogrammes. Ask the Parisienne artisan weavers put out of work by Joseph Jacquard’s new, automated looms. They threw their wooden “sabots” into the machines to damage the gears — “sabotage”, they called it — but they could not fight history.

A world in which all outcomes can be coded for is one where no-one wants to play anymore. It is fully priced. Margins are at zero. There is no surprise; there is no risk; all punchlines are known. It is a life of noughts and crosses[6] and not chess, much less bridge or poker. At every point, there is a known optimal move: including at the first move. If the optimal move is a known known (as it is in noughts and crosses, but is not yet in chess) the game is solved: there is no point in playing. This is not a competition of wits, but of memory and data processing power. That’s certainty, and it isn’t interesting.

Complex systems are not like that. They are “non-linear”. Non-adjacent components interact in unexpected ways. They do not have pre-defined boundaries. There is no common set of protocols; there are no agreed rules. Information is incomplete, ambiguous, and provisional. The system is not bounded; there is no complete data set: it is in perpetual flux. It is filled with independent systems and agents making their own independent decisions, each one of which alters the contours of the landscape. Everything is liable to change.

In a complex system, algorithms do not reliably work. They get in the way. You need experienced experts who can make educated guesses and provisional decisions based on incomplete information. You need people who are flexible, adaptable, and smart. You need people who are good at handling doubt. Doubt is not a regrettable externality: it is the essence of the value proposition. Doubt is risk. Without doubt, there is no reward. We should not seek to avoid, much less eliminate doubt. We should seek it out. The person who succeeds in commerce is the one who is best able to handle doubt.

Doubt as a self-enforcing moderator of extreme behaviour

Examples of “risk compensation” where the introductions of safety measures — which we may characterise as “enhancements to the certainty of safety” — lead to increased risk-taking are legion.[7] Where town planners have removed all traffic controls, signage and control, a dramatic reduction in speed and accidents has followed.[8]

Epistemology of certainty

May we take Descartes as read? It gets more interesting a little later on.

If we take it that truth is a property of a sentence, not of the world[9] 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 word games, 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.

  • 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.

See also

References

  1. Mine was especially mellifluous: Hello, Professor Rowe, if you are reading, 32 years later!
  2. Often unjustifiably. See: estoppel by waiver.
  3. There is an uncomfortable echo of Chuck Prince’s notorious statement here, I realise.
  4. Much more likely, it won’t say you can’t, which doesn’t really help anyone.
  5. Note here, recent efforts by the English courts to entrench the lawyer’s role in commercial negotiations through no oral modification clauses.
  6. Tic-tac-toe to you, my American friends. The same will, in theory, one day be true of chess and go — but the calculations are exponentially harder.
  7. Anti-lock breaks, seatbelts, speed limits, cycle helmets, ski helmets, skydiving safety equipment: https://en.wikipedia.org/wiki/Risk_compensation.
  8. An evaluation of the Laweiplein scheme in Drachten, Netherlands, which replaced a set of traffic lights with an open square with a roundabout and pedestrian crossings, found that traffic now flows more freely at a constant rate and with reduced congestion, shorter delays and improved capacity.
  9. Richard Rorty: Contingency, Irony, and Solidarity.