Doubt

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

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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.

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”. 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. 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?

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.

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 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. Where town planners have removed all traffic controls, signage and control, a dramatic reduction in speed and accidents has followed.

• 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 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

• For the avoidance of doubt
• Complexity