|The psychology of legal relations
Blow, winds, and crack your cheeks! rage! blow!
You cataracts and hurricanoes, spout
Till you have drench’d our steeples, drown’d the cocks!
You sulphurous and thought-executing fires,
Vaunt-couriers to oak-cleaving thunderbolts,
Singe my white head! And thou, all-shaking thunder,
Smite flat the thick rotundity o’ the world!
Crack nature’s moulds, an germens spill at once,
That make ingrateful man!
- —King Lear, III, ii
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 whispered “for the avoidance of doubt”, not once, even to break some tedious impasse?
Such is our institutional suspicion of doubt.
Note, in that grim 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 yet know where we are going. A contract which tries to anticipate and codify the future only ossifies 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 outdated. It blinds us to new ones which will be resolutely better.
A yen for 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 a poor outcome. If there is a problem, get on the phone. Talk. Work the 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 partner lingers, the more we can dance. The value of a relationship is a function of time. This is logically true for any relationship whose present value is greater than zero. Prolonging it is the best outcome.
Any relationship you can’t make positive, you should end now and be done with it. 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 best answer will rarely issue from a legal eagle’s beak: “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 may not have thrown their clogs into the machines as urban myth suggests, but yet they could not fight history.
A world in which all outcomes can be coded for is one where no-one wants to play any more. 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 introduction 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 accidents, speed and yet an increase in system flow, has followed.
Doubt counsels caution. It recommends contingency. It declares knowledge provisional. It is open-minded, non-judgmental, it is the preparedness to admit error. In our polarised times, it is doubt, not certainty, that is lacking. It is not the wilful suspicion of truth, but a dogmatic conviction in it, that fractures the peace.
To aspire to certainty is wish for finality; completeness; the limits of our commitment to each other, and the arbitrary end of affairs we would be better served by continuing. If a relationship is productive now, why end it? If a relationship is not, why prolong it? If it is not satisfactory, why not change it?
And so we get down to philosophical nuts and bolts. Truth, free will, knowledge. May we take Descartes as read? The philosophy gets more interesting a little later on. Let me tell you my dirty little secret, folks: I’m a relativist.
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, for there to be no doubt between us, our language would have to be a closed logical system, in which both of us were fully conversant. Not only are natural languages nothing like closed logical systems in practice — they are loose, littered with ambiguities, metaphor, slang, malapropism and error: it is hard to draw boundaries around them — but they cannot be closed logical systems even in theory.
This observation we owe to Kurt Gödel. The same one snookered Bertrand Russell: not even mathematics is a closed logical system. It also snookers reductionism and modernism: a single, transcendent set of axiomatic truths is an incoherent idea. So is any ontology that depends on one.
Now we can, with our word games, do our best minimise indeterminacy. This is what legal language is meant to do, by convention eliminating metaphor, slang and informal constructions; generally sacrificing elegance for certainty. Where there remains potential ambiguity, legal language tries to further diminish 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 system. It is beyond the power of any algorithm to describe a complex system.
We start, therefore, in a place where “the only certainty is doubt”.
Carry on, folks.
- Mine was especially mellifluous: Hello, Professor Rowe, if you are reading, 32 years later!
- Often unjustifiably. See: estoppel by waiver.
- There is an echo of Chuck Prince’s notorious statement here, I realise.
- Much more likely, it won’t say 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.
- For an excellent argument along these lines see David Graeber, Debt: The First 5,000 Years
- Richard Rorty: Contingency, Irony, and Solidarity.
- Note: not false, but incoherent. Meaningless. Impossible to consistently articulate.