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Worse yet, it encourages those in the relationship not to talk to each other, for fear of prejudicing their pre-constructed legal protections. They may even feel, without Legal’s sanction, they cannot. This is exactly opposite to the optimal outcome. If there is a problem, ''get on the phone''. ''Talk''. Flex that relationship. ''Reinforce'' the trust and credit you have accumulated. In a positive-sum relationship, each party’s ultimate outcome is the other’s wellbeing. The longer they live the longer the relationship can last. The value of the relationship to each side is a function of ''time''.<ref>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?</ref> | Worse yet, it encourages those in the relationship not to talk to each other, for fear of prejudicing their pre-constructed legal protections. They may even feel, without Legal’s sanction, they cannot. This is exactly opposite to the optimal outcome. If there is a problem, ''get on the phone''. ''Talk''. Flex that relationship. ''Reinforce'' the trust and credit you have accumulated. In a positive-sum relationship, each party’s ultimate outcome is the other’s wellbeing. The longer they live the longer the relationship can last. The value of the relationship to each side is a function of ''time''.<ref>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?</ref> | ||
Here doubt is the best motivating factor. “Hey, legal, what does this clause in our legal agreement, that we signed | Here doubt is the best motivating factor. “Hey, legal, what does this clause in our legal agreement, that we signed 10 years ago, mean? Can we do this?” | ||
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''?” | ||
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In any case, isn’t that kind of doubt ''creative''; an opportunity for business folk to have a constructive conversation which might lead who knows where? Here a ''surfeit'' of [[certainty]] leads to two bad outcomes: either a (legally correct but nevertheless) commercially damaging decision to disregard your client’s expectations, or an expensive, slow and clumsy way of seeking it's permission (via the [[legal eagle]]s papering and amendment: expect your client’s risk team to be suspicious of ''any'' amendment, however benign to your minds it may be, especially if, as inevitably they will, your legal team concoct five pages of boilerplate to articulate it) where a quick phone call might have done the job and, who knows, led to other opportunities.<ref>Note here, recent efforts by the English courts to entrench the lawyer’s role in commercial negotiations through [[no oral modification]] clauses.</ref> | In any case, isn’t that kind of doubt ''creative''; an opportunity for business folk to have a constructive conversation which might lead who knows where? Here a ''surfeit'' of [[certainty]] leads to two bad outcomes: either a (legally correct but nevertheless) commercially damaging decision to disregard your client’s expectations, or an expensive, slow and clumsy way of seeking it's permission (via the [[legal eagle]]s papering and amendment: expect your client’s risk team to be suspicious of ''any'' amendment, however benign to your minds it may be, especially if, as inevitably they will, your legal team concoct five pages of boilerplate to articulate it) where a quick phone call might have done the job and, who knows, led to other opportunities.<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. | 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. | ||
===The [[complexity]]-appropriateness of doubt=== | ===The [[complexity]]-appropriateness of doubt=== | ||
[[Certainty]] is an appropriate stance to adopt towards 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 your people run on autopilot. Here, a legal contract is little more than a [[service level agreement]]: a schedule of works. This is that twilight world of diminishing margins, where, as dusk falls our machine collects ever scarcer pennies in front of the onward progress of the same, monstrous, entropic steam-roller. As technology develops the pennies vanish sooner and sooner. | |||
But a world where | But a world where all outcomes are certain is one where ''no-one wants to play anymore''. There is no surprise; there is no risk; all punchlines are known. This is all the fun of noughts and crosses.<ref>''Tic-tac-toe'' to you, my American friends.</ref> The same will one day be true of [[chess]] and [[go]] — but the calculations are exponentially harder. If at any point during the game there is an optimal move — and in a zero-sum game, there must be — then that includes the first move. If the optimal move is obvious; a [[known known]]— as it is in noughts and crosses, but is not yet in [[chess]] — ''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. | ||
===Doubt as a self-enforcing moderator of extreme behaviour=== | |||
*The dutch traffic light experiment | |||
*The [[normal accidents]] dilemma: the safer an engine is, the faster you run it. | |||
==={{t|Epistemology}} of [[certainty]]=== | ==={{t|Epistemology}} of [[certainty]]=== | ||
May we take [[Descartes]] as read? It gets more interesting a little later on. | 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<ref>Richard Rorty: {{br|Contingency, Irony, and Solidarity}}.</ref> 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. | *'''[[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. | ||