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.