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}}In defence of [[doubt]]; a much-maligned force for good in the world. | }}In defence of [[doubt]]; a much-maligned force for good in the world. | ||
===Certainty=== | ===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 ''[https://en.wikipedia.org/wiki/Legal_certainty certainty]''. This is a matter of basic [[jurisprudence]]: we hear it, we think, “oh, yes; well, of course,” and nod along | 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 ''[https://en.wikipedia.org/wiki/Legal_certainty 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 {{sex|her}} mellifluous way.<ref>Mine was especially mellifluous: Hello, Professor Rowe, if you are reading, 32 years later!</ref> | ||
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 | 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]]. | |||
Such is our institutional suspicion of ''[[doubt]]''. Note that dreadful phrase of hack lawyering | 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 “''[[For the avoidance of doubt|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. | 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. | 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]]''. | So here, readers, I present you a spirited, against-the-run-of-play, defence of ''[[doubt]]''. | ||
There are logical, psychological, commercial and philosophical grounds. Bear with me. Let us start at the top and work our way down to the [[elephants and turtles]]. | 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=== | ===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 beauty of | 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]]''. | ||
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. As they develop, relationships grow: the dinks and scuffs we | 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. | ||
Relationships develop as ''markets'' develop, as ''technology'' develops, as ''competitors'' develop and as ''threats'' develop. Markets, technology, competitors and threats interact | 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. | ||
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. | ||
Worse yet, it encourages those in | 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. The value of the relationship to each side is a function of ''time''. | 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? | ||
Here doubt is the best motivating factor. | 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? | ||
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''?” | 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> | ||
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> | |||
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. | |||
If your relationship is such that you feel the need to go to your contract, you’ve already lost. | |||
===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]]. | 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]]. | ||
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 or the people who made aerogrammes. | 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. | ||
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 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. | ||
Revision as of 08:47, 5 February 2021
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The psychology of legal relations
|
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: 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 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.
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 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.
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 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?
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?
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?[3]
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 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 concoct five pages of dreary boilerplate to articulate it.[4]
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.
If your relationship is such that you feel the need to go to your contract, you’ve already lost.
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 playbooks and runbooks, your machines and people run on autopilot and your contract is little more than a 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, 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.
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.[5] 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.
Complex systems 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.
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.[6] Where town planners have removed all traffic controls, signage and control, a dramatic reduction in speed and accidents has followed.[7]
- The normal accidents dilemma: the safer an engine is, the faster you run it.
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[8] 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
- ↑ Mine was especially mellifluous: Hello, Professor Rowe, if you are reading, 32 years later!
- ↑ Often unjustifiably. See: estoppel by waiver.
- ↑ Much more likely will be that it won’t say that you can’t, which doesn’t really help anyone.
- ↑ Note here, recent efforts by the English courts to entrench the lawyer’s role in commercial negotiations through no oral modification clauses.
- ↑ 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.
- ↑ Anti-lock breaks, seatbelts, speed limits, cycle helmets, ski helmets, skydiving safety equipment: https://en.wikipedia.org/wiki/Risk_compensation.
- ↑ 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.
- ↑ Richard Rorty: Contingency, Irony, and Solidarity.