1.
Towards dialogic law ^
[1]
This is a story of two goddesses. The one is ruling and mighty. The other is her shadow. The ruling goddess of law is illustrated as blind-folded. She is seen but does not see. The shadow goddess is not seen but she sees.
[2]
The blind-folded goddess delivers justice based on some divine or natural source or on norms interpreted by legal logic. She is a neutral mediator, a separate entity. She is not aware of the perceptions her law is made of. She is not responsible for creating laws or for their implementation. Based on Cartesian influence1 the goddess has been alienated from other sources and has become more of an interpretation and decision making machine. She has likewise begun to see humans as thinking machines without any other characteristics. The results of the reign of this goddess hiding behind formality are here to be seen.
[3]
The seeing goddess is instead conscious of herself, aware of her subjectivity, takes responsibility of her influence on creation of laws and on its implementation understanding human nature and reasoning.2 She sees and admits that her logic has influence in the creation and implementation of legal rules. She sees law as a continually developing process. Her law is sensitive and self-reflexive. This goddess sees the variety in the world and knows that it cannot be managed with monolithic methods. She knows that there are no straight ways and no steady goals to reach or find. She knows that everything is infinitively becoming. She knows that everything changes continuously and attempts to manage processes of uncertainty and choice3 . She knows that in a world of dissimilar human minds everything is fragmented - the universal wholeness is possible only beyond the mind.
[4]
The object of law is commonly seen as being justice. Justice of the blind-folded goddess is found in already existing texts when they are applied transparently and predictably according to legal logic. This is how the blind-folded goddess is seen to protect autonomy of people against despotism. The seeing goddess knows that justice and autonomy are nowhere to be found and protected, but are instead goals. Justice of the seeing goddess is time and context bound, internalized ways of thinking and feeling. Her task is to be involved in a process of co-creating a system where norms, their interpretation and implementation would together promote justice and autonomy. Her task is to be aware of her influence on these other spheres and what perceptions she adopts from other spheres and disciplines.
[5]
Like protecting autonomy, the blind-folded goddess sees herself as a protector of the will of the contracting parties. Contracts are expressions of will. Law is seen to protect the realization of will according to its own interpretation norms in litigation. Her ideal contract is final: the will has been frozen to bring stability through legal interpretation. ‘Contract’ has become a legal document drafted by lawyers for legal disputes. Thus, the interests of the parties appear rather opposite than common. Contract relationship is a rational, impersonal relationship to execute a transaction.
[6]
In the world of the seeing goddess contracts are developed in cooperation networks and are used to manage target-oriented cooperation. Contracting is a process which balances between freezing and flowing, between bringing stability and managing choice. Will is rather a continuously becoming goal than an already existing perception. Co-creation in contracting networks is based on communication skills which are based on understanding about human behavior, human mind and emotions. Ideal contracts are user-friendly instruments for co-creating, expressing and realizing the will of the parties. The seeing goddess sees herself as an enabler of achieving the goals parties aim at. She sees contracting as a cross-professional collaboration process.
[7]
The law of the blind-folded goddess is a dialectic and rational process created by legal professionals. The law of the seeing goddess is in dialog also with Others. In order to co-create and communicate with others, she needs to be aware of her own characteristics and perceptions. The more hidden her own nature is for her, the more it contorts her understanding. Besides understanding herself, she needs to: respect the perceptions of others and listen to them actively, understand the functioning of human beings as well as embrace communication and collaboration skills. The domain of the blind-folded goddess of law is tribunal where offences and disputes are addressed. The seeing goddess wants to promote successful operations where tribunals are not hopefully needed and may be replaced by dialogic mediation. The seeing goddess admits that legal interpretation logic influences outside her domain and she needs to be responsible for that influence and simultaneously empower other actors to take back their power when it has been conquered from them by law.
[8]
Language of the blind-folded goddess is an introspective, professional language for legal professionals who are obliged to master it. Her focus is on rational texts. The seeing goddess sees herself through the eyes of society, as a part of a target-oriented and context-bound process. She sees herself as one player in a common game. Rules of the game should be co-created and the game played together. People playing the game are both rational and emotional. Language of the common game needs to be besides rational, also communicative, tempting and inspiring. Her language goes beyond words. Her goal is collaboration where understanding is shared through various channels, like contracts and laws. Her success depends on the ability of these channels to cross the boundaries between people and organizations.
[9]
Law of the blind-folded goddess would not work without the seeing goddess in the shadows. Her law is not as formal as she would wish, but her dominating image of law affects the reality and skews the view. The time has come to cast light on the seeing goddess, to make her visible – and mighty. In order to fulfill her tasks her way, she needs to be equipped with new tools developed for her purposes.
2.
Towards trialogic law ^
[10]
What do we talk about when we talk about law? Frequently, the word ‘law’ refers to legal rules like legislation and precedents. However, modern law as a discipline (jurisprudence) and as professional expertise is an art of legal interpretation: finding law and drawing decisions from existing legal rules according to legal logic and principles.4 Jurisprudence additionally systematizes and analyses the legal system. In this article, I refer to the above mentioned meaning when I use the word ‘law’. The personalized image of law is that of a court judge who mediates an individual decision from legal sources according to legal logic. Besides legal coherence, substance of legal rules and their implementation are not typically considered the responsibility of law. A reigning ideal is that modern law is a neutral channel through which different values and goals can be realized. When the prevailing self-perception of law is this limited, most of the socially relevant advancements remain rejected or marginalized from legal discussions and from agendas of law schools.
[11]
In real life, law is not an isolated bubble. It may be due to the prevailing theoretical understanding that influence of law is not acknowledged in its entirety. One large scale effect seldom discussed is the indirect influence of law over most functions in modern society. Legislation is politics which is not law. Neither is administration. Thus, in theory these spheres are as the main rule outside of the interest and responsibility area of law even if in real life law has an immense impact on them. Legal language and legal interpretation logic dominate legislation and administration. The main aim of legislation should be to co-create rules which together with other methods would realize the co-created social goals. The main objective of administration should be to realize targets of legislation. These main tasks have become secondary compared with adapting to legal interpretation logic. Law is seldom held responsible for its direct or indirect consequences in the social reality by being aware of what goals it furthers, what kind of lawyers it produces, and what they are able to achieve in their work. Legal logic has also an sich an influence in forming human thinking and the human way of handling affairs.
[12]
Besides legislation and implementation, law is as well increasingly considered as a target-oriented process; European law serving as one example. Anyway, law has been considered having a goal: justice. Nevertheless, this modern legal justice is formal. Its aim is to ensure just – predictable, transparent and equal - treatment. Justice as a social goal requires, though, substance and implementation as well. As a phenomenon, justice is subjective and contextual. It is a feeling and an experience depending for example on whether one feels having been heard and having comprehended the reasoning of others. Justice has to be continuously developed in a social dialog. Social structures, legislation and other methods are attempts to realize justice from one viewpoint or another. The idea of proactive responsibility is not to decide the premises for ex post accountability, but to ponder ex ante what de facto will follow.
[13]
According to the main stream understanding, law as a social actor is the interest of sociology; it is an outsider’s gaze at law. Law is thus a normative system acting in society without responsibility and coordination of its influence. One could instead argue that being a self-reflexive and responsible actor in a continuously changing whole is a very internal view. If the self-perception of law was to be an interactive entity in a target-oriented social process, its interest areas and responsibilities would be much wider than those of a segmented silo limited to norm interpretation. This target-oriented process, which can be simplified as the social process where goals are frozen in legislation and implemented by administration and by courts, is in this article called “the socio-legal governing process”.
2.1.
Contracts and contracting as illustrative examples ^
[14]
Contract law and contracting process serve as micro examples that represent legal thinking in general. The focus of contract law is on legal interpretation in disputes, on contracting failures. Contracting, i.e. how to develop successful contracting processes and contracts which help to create and reach the goals desired and implement these goals, is not considered as legal expertise in law. Proactive Law and Proactive Contracting approaches represent exceptions from this rule.5 Training of lawyers in law schools guides them to aim at winning a possible dispute in court. The interests of contracting parties appear thus as opposite. It takes time and learning from experience in business practice to become a counselor who sees business success and cooperation as the main goals of contracting. Useful legal expertise is to know what is legally relevant in a particular business deal. This demands business experience and cooperation with other experts.
[15]
Among jurists implementation is maybe the most ignored contracting phase. Besides holistic understanding about the contracting process, holistic understanding about the organizations involved is required to enhance successful implementation. Knowledge sharing takes place in these surroundings. Many contracting failures are due to lack of information. People need to know what they are expected to do, what information they need themselves, and what information they need to deliver to others and so forth. They need to know enough of the whole but the information relevant in their own tasks has to be available for them in an easy form and their working frames have to allow and encourage the desired behavior.
[16]
The main interest of contracting parties in a contracting process (compare with the socio-legal governing process) is: 1) to co-create the common will and agree about its realization (compare with legislation) and 2) to implement what was agreed upon (compare with administration). The domain of law, i.e. solving disputes in court, is more or less absent from the picture in normal circumstances. A common problem is that much time and effort is spent on legalize. Business parties, who should be preparing for collaboration, are focusing on their opposing interests. This has led to a common comprehension that in a successful contract relationship contracts can be closed in a safe and be left there. Legal expertise and lawyers appear useless or even harmful for business cooperation. Law has at the moment colonized contracts and simultaneously decreased their value for the contract owners. One consequence has been that parties neglect making contract documents altogether. There is, though, another approach emerging as well. Companies are increasingly eager to develop their inter-professional contracting competences. If law schools do not produce lawyers with collaborative contracting competences, maybe some other schools will produce professionals with additional legal expertise.
2.2.
Trialogue – dialogue + tools to cross the boundaries between people’s thinking ^
[17]
Thinking of law in the framework described by process thinking, systems thinking, design thinking and trialogic approach to learning could clarify the demands for socially beneficial law. When the socio-legal governing process or contracting processes are seen as processes, they continuously develop and change by nature. If process is seen as a reflective activity which adapts to circumstances, a plan which has been followed exactly as planned would seem as a failure from the point of view of functional phenomenology (Parviainen 2006, 50). Through systems thinking these processes appear as holistic systems where law is not an isolated silo but an actor in the process. In design thinking the socio-legal governing and contracting can be seen as activities of social prototyping, as iterative, evolving and innovative processes that are grounded on the subjective understanding of the participating parties, as opposed to control-oriented and technical approaches, which strive for objective rationality. In these frameworks, law would need to be aware of its role in the process, its relations with other actors, the nature of its own thinking, the significance of particular contexts and so forth.
[18]
Sami Paavola and Kai Hakkarainen (Paavola & Hakkarainen 2005) have distinguished an approach to learning which they call “trialogical”. It concentrates on interaction through mediating artifacts or processes of activity, not just between people, or between people and environment. Inspired by this concept, the self-reflexive law as an actor in a dialog process described above could be called trialogic law to emphasize the additional need to also reflect the functionality of its working tools and methods. Legal rules, contracts and procedures need to be developed with the specific aim of being user-friendly boundary objects that facilitate knowledge co-creation, knowledge sharing and so forth in collaboration.
3.
Boundary objects in trialogic law ^
[19]
In the prevailing silo thinking, law is developed in a dialectic process among legal professionals. Its language has been developed accordingly for its own purposes. This purpose serves legal interpretation and decision making the way it is understood at present and facilitates internal legal discussion. Legal rules and documents like contracts are drafted to fit into that logic and language. The role of legal language, including various communication methods, is different when law is seen as a cooperating social actor. In collaboration people need to share knowledge, to co-create new understanding and common will (legislation, contracts), to realize the shared will and arouse interest. Legal rules and contracts are supposed to guide behavior. For that purpose their contents should be known. If people are expected to familiarize themselves with information, according to the principles of user-centered design, the representation of this information should match the needs of its prospective end-users.6 Thus, the information should be easy to find, timely, match the context of use, be catered in the amounts appropriate to the user and context, be presented in a usable format, be written in language comprehensible to the reader, be perceptually attractive and finally, for the user to enable elaboration and development of the information through participation. However, the way legislation and contracts are presented is rather forbidding than inviting. They are written to fit into traditional legal interpretation logic and not to serve their main purpose as collaboration and communication instruments.
[20]
In the socio-legal governing process and contracting process, boundary objects need to be developed to cross the boundaries between human minds. Rational and impersonal writing is seldom the best method to reach this aim. In our scientific traditions concepts have often been understood as conscious, literal and disembodied. Like seeds, words and thoughts have been seen as something which may be transferred in containers, as more or less unchanged. Legal language and its ideal of clarity are largely based on this understanding. It has, though, been argued that human thought processes are largely metaphorical and that our conceptual system is mostly metaphorically structured.7 Metaphors are imaginative rationality, uniting reason and imagination. Besides being linguistic and conceptual, metaphorical thought is embodied.8 Metaphors are open-ended and thus more whole than definitions. When metaphors are understood as our way of having a reality, the question will not be what they mean but how they work. A metaphor is not asked to validate a rule of logic, the question is what logic and reality it constitutes and enables (Winter 2001, 58, 65-66).
[21]
Emotion is critical for the appropriate direction of attention (Damasio 1999, 273). Narrative and poetic language are able to transmit understanding on a different level than rational language. Storytelling is a seducing movement. In the container metaphor the meaning is inside the container, but in storytelling the meaning is the container itself. This is beautifully expressed in a citation (Kahane 1989, 143) of Marlow in Conrad’s Heart of Darkness ”the meaning of an episode was not inside like a kernel but outside, enveloping the tale which brought it out only as a glow brings out a haze in the likeness of one of these misty halos that sometimes are made visible by the spectral illumination of moonshine.”
[22]
Visual meaning making is often more effective than any textual communication. People are drawn towards visual representations and may comprehend their message with one glance. Visualization facilitates sharing of knowledge as well as of holistic and complex comprehension. Visualization concretely makes the invisible visible. Infographics could be compared with plain language in clarifying information. Pictures, paintings, theatre, films and music could be compared with poetic language and narratives as offering possibilities for sharing holistic and tacit understanding, like the sublime in justice which Richard K. Sherwin calls for in his book about visual jurisprudence (Sherwin 2011). In co-creating new knowledge and comprehension as well as discussing more abstract and holistic themes, these methods may be required to guide people from the familiar paths to the unknown areas.
[23]
Sherwin (Sherwin 2011) has emphasized the need of jurists to cultivate new visual literacy which includes a better perception of how images work and better competencies in visual communication. Visual literacy is not the only skill jurists would need in their work and which they are not usually trained to master. Witness psychology is an old example which is partly related with visual literacy. When law has been an art of textual interpretation and decision making, practical skills have not been appreciated or recognized as legal science. In modern science in general human beings are mostly seen as research objects. For example, interaction with clients is considered a practical skill. Nevertheless, with individual conventional understanding about human mind judges cannot construe witnesses properly and counselors cannot aid people to their proper goals when they are not able to fathom them.9 Fortunately, new approaches are emerging. In the Therapeutic jurisprudence approach emotional hindrances to the realization of legal plans have been pointed out to prevent psycholegal soft spots.10 Steven L. Winter (Winter 2001) has analyzed law on the basis of cognitive science. Metaphor as conceptual mapping plays a central role in his study. He sees legal actors as in need of a cognitive map of factors such as social constructs which animate their thinking and decision making.
[24]
Visualizing law and contracts is arousing increasing interest.11 Complicated information may be easily delivered with one or two pictures. Contracts are increasingly seen as a part of productization and marketing. They are thus kind of products themselves. Service contracts may not sell anything tangible at all. The customer is actually buying a service contract.12 The value of contracts should be considered also from the aspect of their selling capacity. Besides facilitating understanding about existing contracts, visualization facilitates creating contracts, ensuring as well that parties really share the meaning of the contract. This is a much better way to protect the real will of the parties than disputing afterwards in court. Probably most of the problems in contract realization are due to lack of information. People do not comprehend the networks and organizations they work in and with, as well as their tasks in relation to others’, which causes gaps in knowledge transfer. Visualization facilitates this comprehension. In our research project on proactive contracting processes in public procurement (PRO2ACT) the value of visualization is evident. Organizations involved are large, their organizational structures are complicated, and their division of tasks is often unclear, people involved more often than not have quite vague knowledge of the various operative rules and so forth. Good boundary objects are more than needed.
[25]
The need for change in legal thinking has been aptly expressed by Sherwin (Sherwin 2011, 32) “we stand at a post-Cartesian juncture, in dire need of ways to integrate anew emotional and rational, aesthetic and ethical, rhetorical and scientific forms (and ways) of knowing”.
4.
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Acknowledgements
This article has been written in the research project PRO2ACT (Proactive contracting processes in public procurement) at Aalto University, SimLab. The author is grateful for the fruitful collaboration in SimLab, which has made this paper possible. PRO2ACT is financed by the Finnish Funding Agency for Technology and Innovation (Tekes) and partner organizations.
- 1 With this is meant the influence of René Descartes’s dualism on Western thinking: the rational mind has been emphasized at the expense of embodied emotions. Even if this dualism has been widely criticized, main stream science is still much embedded in it.
- 2 Moral conceptions, perceptions of human nature, philosophical understandings, experiences and “self-evident” insights of the actors to name a few, all have influence in legal thinking but it is not in the core of jurisprudence to reflect the choices of its sources. Belief in objectivity increases subjectivity. Many discussions, like feminist jurisprudence, have emphasized the inevitable subjectivity of human thinking. This admission increases possibilities to a more objective law.
- 3 Management of uncertainty and choice are examples of terms used at present to describe the inevitability of change and its positive aspects as offering new possibilities.
- 4 Adapted from Montesquieu, the idea that legislation, court practice and administration should be separate areas – separation of power – has had an unquestioned black-and-white social influence and has also influenced the separation of jurisprudence. However, even legal security is more real in a self-reflexive and holistic system.
- 5 On these approaches see e.g. Siedel & Haapio 2010 and on the relations of Proactive Law and other legal approaches Pohjonen 2006.
- 6 On user-centered desing see Beyer & Holtzblatt 1998.
- 7 On metaphors see Lakoff & Johnson 2003. The conduit metaphor originates from Michael Reddy.
- 8 See on design as embodied activity Kronqvist & Salmi.
- 9 See e.g. Pohjonen & Lindblom-Ylänne, 2002.
- 10 See e.g. Practicing Therapeutic Jurisprudence 2000.
- 11 See e.g. Brunschwig 2001, Tobler & Beglinger 2007 and Passera & Haapio 2011.
- 12 See more Rekola & Haapio 2009.
