Special pleading
|
The psychology of legal relations
|
The agency paradox: every agent believes in an equivalent double standard: viz., the key to its principal’s business transformation is to disintermediate everything but itself. An instance of, “I agree with you generally, but my particular case is special”.
Examples abound. The JC, because he is lazy is an inveterate simplifier. There is not a contract in the world, he is fond of saying, that could not be half the length it is.
This is hardly a controversy: you will find any practising lawyer to whom you make this observation in violent, general, agreement. So too, the law society, regulatory bodies and legislators. The SEC has written an impassioned tract imploring prospectus writers to be brief. The European Commission won’t let you even market securities unless you are curt to the point of bluntness. It is widely acknowledged, that most legal discourse is overwrought; much of it hot air.
Yet we find a curious dissonance: for however passionately a legal eagle may agree with this proposition in the abstract, it will be a different story in the particular. Especially where the particular in question is her own document.
“Ah, yes,” she will say. “Generally, one should be short and to the point, but this is a special case.”
For the world is composed of special cases. Every one of us is different. This we call a paradox. You know how the JC loves a paradox.
Now everything in the legal eagle’s armoury is arranged around the analogy. This is stare decisis: the doctrine of precedent. The common lawyer proceeds exclusively by anecdote. She treats each case on its merit. Merit, in the eye of our learned friends, lies only in the particular. The general — the emergent value of all contracts across the market, seen and unseen, is an abstraction beyond the possible care horizon of a legal advisor. It simply isn’t relevant. Obviously, everyone can agree that in general legal documents should be shorter, clearer and better, but legal eagles don’t deal in generalities. They deal in particular. Managing risk on a “portfolio” basis – which is surely what all financial services organisations must do – comes very hard to one trained in the common law.