IS IT CORRECT OR DOES IT WORK?
Business Contracting as an Example
by Soile Pohjonen
Scientific thinking and practice are in a continuous interaction. We see the practice through our (scientific) models and shape it accordingly, as well as changes in practice may change our models. Preventive Law represents recent approaches on many levels. In practice it has been always done but not been considered relevant in a knowledge based education and legal sciences. Preventive law has emphasized the need to find out individual needs and wishes of clients and to be creative to be able to fulfill them. These tasks demand skills. (1) Creative solutions are also open and individual results of interactive processes, not consistent implementations of known rules. Forms of nowadays business world are both seen as and are more than before vague, transforming and temporary networks, reflecting thus new scientific understandings. Correspondingly, demanded expert knowledge and professional skills accentuate differently than in a business reality of stabile, hierarchical corporations.
Process Waves or Truth Particles?
To put it roughly, the scientific world view of our western culture has been based on answering the questions "what" and "why". Science has searched for truths and essences, explained "what" things are. Besides that it has explained "why" these truths are facts and "why" they came to be. Things have been declared to be right or wrong, black or white in an either-or logic. That is why (sic!) it is not surprising that recently questions like "how" things work successfully or "how" they have developed have begun to awaken increasing interest. (2) When we research the transformation ("how") of a certain phenomenon we do not even try to explain the essence ("what") or the fundamental cause ("why") of it. The legal thinking has followed the general pattern. Natural law is a good example of a trend where one has searched for the "right" legal principle i.e. the universal truth of a matter. In legal logic conflicts are solved in courts where the "right" decision is given and its reasons stated by explaining the cause and effect chains. Usually, the one party is declared to have been right and the other wrong. Even if contracting is co-operation between people contract law has not been based on creating the most workable ways to co-operate. Instead, legal rules have been developed from legal principles based on generalisations. What kind of law would be based on the question "how"?
In all sciences clear definitions and clearly defined objective "truths" have begun to appear too simplistic and one-sided. Things are coloured instead of black and white and based on both-and logic. (3) Life and human beings are too complicated and many-sided to be governed with analytical reason. Objective and universal law is not always able to make decisions which are suitable in a particular, individual case. Decisions based on fairness are legal attempts to deal with individual circumstances. It has been pointed out that "objective" fairness may be interpreted unfairly if particular relationships with their own rationality and practices are not properly understood. Psychotherapy where causes of peopleīs mental difficulties have been one central topic has got by its side short therapies where it is not so important to explain causes but the emphasis is in finding methods and technics to get effective results. The emphasis is on the question how results are reached.
One might expect the question "Does it work?" be the most important in developing methods for human co-operation. That has, however, not been the starting point in science. Methods for practice have been developed based on scientific explanations of a phenomenon in question or understandings of a system like legal logic. Do these methods work in co-operation has not been the basis from which they have been developed. When the starting point is the effectivity of the method the question why that is so is not so essential. In this kind of attitude one concentrates in researching the methods themselves, which parts of them are really necessary etc. If a certain "ritual" works, it is a good method. If better methods are found the old one is abandoned. Methods are researched and developed continuously. They do not have intrinsic value. We could roughly say that in traditional science the starting point has been vice versa, if a method for practice has been developed according to a correct scientific method or understanding, it is a good method. Scientific methods also tend to have intrinsic value.
When the emphasis is in receiving results and it is not essential to understand what processes and energies the method in question furthers or puts in motion, we come to the area where the emphasis is in skills instead of in knowledge. Skills are not only mental and intellectual but include also other human abilities. In NLP (Neuro-Linguistic Programming) research of excellence has been a central topic. One has modelled methods of successful people - who often are not any longer aware themselves how they in fact "do it" or "did it". This is one way to speak up tacit knowledge and make it visible for others as well.
Problem solving may be quite one-sided when it is based on a traditional scientific world view and on a certain scientific system like legal logic and legal methods. In solving practical problems we usually need also those abilities which have been in the margins of scientific thinking. Skills are a good example of that. Skills become an important part of lawyering in dealing with people, for example in contracting. When the starting point of traditional contract law was a short-term transaction the focus has later shifted to long-term contract relationships. (4) Contracting in long-term relationships is an on-going process. This means acknowledgement of the human and co-operational side of contracting. Flexible and practical discussion about goals and principles between parties is needed as much as clear, strict and detailed contract clauses. Framework contracts are especially needed in long-term, personal business relationships for planning the general frames of the co-operation. Traditionally emphasized detailed and thorough contracting is on the other hand especially needed concerning economical responsibilities and risks, as when great losses or profits appear it is often unlikely that the other party is very co-operative. Most relationships, are they about business or love, have both of these features and would benefit from multi-level contracting. The focus in contract law doctrine has been towards open norms and conflicting principles. It is not any longer believed that strict lines among legal, political and moral arguments may be drawn (Hugh Collins). When contracting is nowadays as well seen in interaction with the surrounding reality one should know something about this reality. For practising lawyer this means for example knowledge of the business in question and ability to work with other professionals.
It has been noticed that in order for people to find decisions just, they must experience the process as a dialogue. This includes the feeling that their own standpoints have been listened to and that they have understood othersī standpoints as well as the process with its outcome as a whole. Thus, the process itself - how the result was reached - is sometimes more important than the outcome - what the result is.
The Human Factor
According to the more recent scientific understanding the observer and the observed are interactive which means that the scientist has to be aware of her unavoidable subjectivity, which paradoxically makes her more objective. This brings to the surface our ways to see the world and people as well as differences between these ways of ours and those of others and between all of us.
Some theories have had as a starting point one particular human image. In economics and contract law the human image on which the system with its methods for practice has been based on has been the selfish human being (homo oeconomicus). In law this has mostly not been as openly discussed and conscious starting point as in economics. One other basis in law is the ideal, "sollen", how things should be. Legal rules are developed from the understanding how people should behave, what is the right behaviour more or less "always" and for "everybody". If we think that people are many-sided, for example selfish and unselfish, and have different values and realities we would develop systems and methods from the colourful reality of flesh and blood people. If we want to further some common ideals the starting point should be to ponder how these are reached and not to expect them to exist already. The liberal contract law presumed that parties are equal and capable of taking care of themselves. To further real equality between parties one has to first admit that all parties are not equal. Ideals are not reached by imagining that they exist already.
We could say, once again roughly, that the so called modern i.e. traditional scientific way of thinking reflects a person who is seeking safety and certainty. The methods of problem solving are limited and ready-made which means that as one is solely following the rules there is in principal not much personal responsibility. If one wants to imagine that one is completely in control, one has to imagine that reality is simple enough to be totally recognised. Traditional contract law has been accordingly based on the notion that contractual relationships are short and impersonal. Under such a view, the time, space and substance of contracting are limited and clear. In creative problem solving with an open and flexible mind we are instead more vulnerable, "on our own", and more clearly responsible for our own decisions.
Traditional legal thinking has not been interested in people and their behaviour as such even if a central task of a legal system is to define rules for behaviour and render decisions in cases concerning problems in co-operation. Litigation is hardly a good way to solve problems in human co-operation. The development of Alternative Dispute Resolution (ADR) methods has been rapid in many countries. Particularly in extra-legal mediation the idea has often been that the mediator tries to help the parties to find a win-win solution which they themselves prefer. What is demanded from her is not actually knowledge and suggestions but skills to create a fruitful atmosphere and point out various tools and possibilities. There are, on the other hand, cases where mediation is not a suitable method. The offence may be too severe, the parties may want a decision made with the authority of society, the power imbalance between the parties may be too big etc. In the last case the problem may sometimes be solved with the help of an outside expert whose task is to make sure that the basis of the solution and its relation to law is clear to both parties.
If we admit that we are different and thus conflicts are a natural part of human life together we may see conflict resolution as part of contracting as well. Conflicts are thus common and parties share the responsibility to solve them themselves. We might exaggeratedly say that in traditional contract law thinking the attempt has been to abolish beforehand all potential conflicts and in traditional human relationship thinking i.e. marriage people have avoided to discuss potential problems at all. In the former (the traditional manīs world) it has been thought important to be prepared for everything because the relationship is not important in itself and the other party is not to be trusted and in the latter (the traditional womanīs world) the relationship is considered much more important than the parties themselves and the other party is supposed to be completely trusted. If we do not consider ourselves to be schizophrenic and change personality in different relationships we might suppose that the best solution is to face the potentiality of conflicts, discuss them, make detailed contracts especially concerning economic responsibilities and lay down the general outlines of the wishes and needs in the co-operation or in the life together. The market cannot function without some kind of trust any more than people may be completely trusted in their domestic relationships.
Relational contracting and mediation have brought along the recognition of the importance of interaction skills. These are mostly the sides of human characteristics and ways of understanding which have often been considered as our feminine sides and features often emphasized by feminist research. Expertise is not based solely on analytical rationality but on intuition, creativity and empathy. (5) People appear as themselves, as certain kind of people, revealing their background, not as impersonal representatives of a system. This kind of authenticity is important in order to build a real relationship and inspire confidence. Listening actively to needs and wishes of the parties or the other is an essential ability in mediation, contracting and counseling. This listening includes also the non-verbal expressions and ensuring that one has understood others correctly. When we do not suppose that we are necessarily able to interpret the Other, we concentrate instead on making questions to get clarification. This is also the only way to ensure that everybody is talking about the same matter and that the common understanding is based on common premises. To reach this ability we need to be aware that we are different and that we see the world and express ourselves differently. For example in NLP there are different categories describing ways peopleīs worlds take shape and how they communicate accordingly, in visual, auditory and kinesthetic ways. To practice to distinguish these we may begin to recognize our subjectivity not only in theory but also in practice. By doing this we increase our self-awareness, "clean our lenses", besides learning how to make ourselves better understood and how to better understand others.
Traditional legal thinking is based on the ideal of objective rationality and being analytical. From these starting points general rules, strict contract clauses and litigation have been logical tools. If we see lawyering as dealing with peopleīs everyday life and relationships we have to recognise the subjectivity and individuality of different realities and connection to our feelings and those of others, intuition and empathy i.e. different tools. Flexibility, individual solutions and mediation are in many kind of cases more successful methods.
In analytical reasoning we use conscious information, our more mechanical side, our computer characteristics. Intuition, the ability to understand large and complicated entities may be classified into the feeling-side of thinking. We are able to use also as yet subconscious information on this level. Feelings are our connection to ourselves as well as to our sensitivity. When we have a clear connection to what we feel we are also better able to reason clearly, to recognise our own colourings and motives.
When we do not see the world as a predictable machine waiting to be explained but as an interactive flux to be lived in we cannot believe we are in control but we do believe that nothing is fixed and there are always various alternatives to be found.
In a world which is seen as dynamic balance we are consciously searching for working methods and solutions. Doors are more open than in a world (system) of fixed ideals, goals and methods. Preventive law may be seen as a part of the movement which is bringing up neglected sides in legal thinking i.e. balancing it - and creating ideas to give answers to how-questions besides the why- and what-questions.
1. The need for education in skills (vs. knowledge) has been widely discussed for example in The Law Teacher.
2. See for example "In this work, then, I left the problem of causes to one side; I chose instead to confine myself describing the transformations themselves,...", p. xiii Michel Foucault: The Order of Things, An Archaeology of the Human Sciences, 1973 (1966), Vintage Books, New York.
3. A widely known example from the so called hard sciences is the realisation in quantum physics that electrons are both waves and particles. Fuzzy logic represents both-and thinking.
4. Relational contract theory (Ian Macneil, Stewart Macaulay) represents this approach.
5. Emotional intelligence (David Goleman) is a widely used term to describe "the other side" of intelligence.