Abiding in the midst of ignorance,
thinking themselves wise and learned,
fools go aimlessly hither and thither,
like blind led by the blind
(Katha Upanishad)
After reading the above excerpt from the Katha Upanishad, we tend to conclude that it does not apply to us. How could it? We are experienced lawyers and our success is proof of our wisdom and learning. Yet, the excerpt warns against this very line of reasoning. Instead of being a source of comfort, contentment and complacency, our high opinion of ourselves ought to be an alarm that causes us to question whether we are as wise and learned as we think. For on introspection, it turns out that the legal superiority with which we credit ourselves is a pleasant but false illusion. There is an important aspect of our legal lives where we go aimlessly hither and thither like blind led by the blind. The way in which we communicate legal meaning is seriously flawed. Our legal communications fail at a rate that is unacceptably high and those that do succeed, succeed accidentally instead of on purpose.
In the biblical book of Genesis is a story about an incident at a place called Babel. Not wanting to ascend to heaven from earth along the path fixed by God, we had the bright idea of building a shortcut to get us from here to there. God, however, is not circumvented by human shortcuts. To frustrate our plan, God confounded our language so we could not cooperate and, without cooperation, could not succeed. For those of us who have ears to hear and eyes to see, the biblical story of Babel teaches a positive lesson. Great deeds are possible when we speak the same language. And there is the heart of the problem. Lawyers do not speak the same language. Yes. That’s right. We believe we do, but we do not have a common language with which to communicate legal meaning. In the first half of the nineteenth century, the Danish author, Hans Christian Andersen, wrote a story called, “The Emperor’s New Clothes”. Anderson told a tale of a king and a kingdom who convinced themselves that a fake set of clothes were real. When a guileless boy, upon seeing the king “dressed” in the fake set of clothes, exclaimed, “But he hasn't got anything on", the bubble of belief was burst and the illusion shattered. Andersen’s story is an allegory for lawyers. Too many of the laws that govern us are naked of meaning. Yet, we have convinced ourselves otherwise.
Have you ever pondered the flow of legal meaning from thoughts to words to thoughts again? It involves, at one end of the flow, the coding of thoughts into words and, at the other end of the flow, the decoding of words into thoughts. It sounds simple but, at times, the flow of legal meaning breaks down. Some words become traps - linguistic black holes: meaning goes in but it can’t get out. Linguistic black holes are not rare in the legal universe. They appear quite often. Their origin has been traced to lawyers who rely on their intuition instead of upon a methodology to code and decode legal meaning into and out of words. The difference between intuition and a methodology is - to borrow from Mark Twain - “really a large matter--it's the difference between the lightning bug and the lightning.” Intuition is mysterious and fickle. How it works cannot be explained; whether it works cannot be predicted. It is amorphous and ineffable. Its details float like a cloud in “airy nothing”, not having yet been plucked therefrom and, as Shakespeare would say, turned into shapes and given a local habitation and a name. Intuition is a shadow of a methodology. Its presence suggests the existence of something more substantial. A methodology, on the other hand, is well defined and reliable. A methodology is intuition perfected. It can be followed step by step. The mechanics of how it works can be explained. Moreover, in contrast to a methodology, the gift of intuition is not equally distributed amongst lawyers. Every lawyer is not guaranteed to have enough intuition to get the job of communicating legal meaning done. With a well defined methodology, however, every lawyer - even those shortchanged in the intuition department - has easy and equal access to it.
Let me ask a question especially to those of you who concluded that the above excerpt from the Katha Upanishad did not apply to them. What do you use to code and decode legal meaning? Do you rely on your intuition? Or, do you follow a methodology? A simple test can tell whether you rely on intuition or upon a methodology. Articulate how you insert your legal thoughts into words and, from words, how you extract them? If you can articulate it, you are using a methodology. If you can’t, you are relying on your intuition. Don’t feel unfairly singled out if the test discloses that you rely on intuition. You are not alone. Most lawyers rely on intuition; few follow an articulable methodology. Most of us are like the driver of a car who is content as long as the car goes when the gas pedal is pressed. We are not interested in learning more about how it works. But what happens when the pedal is pressed and a law does not go? Why not look under the hood of a law to see how it works before it breaks down? How far would we get in a legal world where all lawyers are drivers and none are mechanics? Is it not important that all lawyers have at least some skill in the mechanics of how a law works?
The importance of using a common language in order to successfully communicate meaning can be seen in a mundane object to which we devote little thought, the ordinary traffic light. The ordinary traffic light uses a methodology to communicate its meaning to motorists that works so well that we hardly take notice of it. In the United States of America, a motorist, driving from New York to California, encounters traffic lights along the way. It is so trite that it is taken for granted that every traffic light communicates its meaning to motorists using the same methodology. There may be a million traffic lights, but all of the traffic lights use only one methodology. Motorists, who are familiar with the methodology by which a traffic light communicates its meaning, can go from place to place and easily understand what the traffic lights are saying. But imagine that this were not so. Imagine that each traffic light communicated its meaning in its own idiosyncratic way. No longer is it possible, by understanding one traffic light, to understand all traffic lights. As a motorist travels, he must learn a new methodology for every traffic light he encounters. Think of the mistakes motorists would make during the learning process (transitional incompetence)! Wouldn’t the pace of travel slow down to a crawl? Yet, this is how lawyers operate. A standard methodology for communicating legal meaning does not exist. Instead of one methodology for a million lawyers, the million lawyers communicate legal meaning in two million idiosyncratic ways. All traffic lights share a single standard methodology for communicating meaning. Yet, lawyers do not. Isn’t there something wrong with this?
Without doubt, legal communication succeeds from time to time. Intuition sometimes does work and the absence of a methodology is sometimes not an obstacle to the flow of legal meaning. Such success is attributed to the fact that a law, when properly understood, needs only a handful of thoughts to fairly and accurately communicate its meaning. (A traffic light needs - as explained below - only three; a law, about ten - depending on how the legal thoughts are counted) Because only a handful of thoughts are needed to fairly and accurately communicate the meaning of a law, intuition can get it right a lot of the times simply by accident. That a law is simple, not complex, holds down the failure rate for legal communication. But why have a failure rate at all? Why tolerate any linguistic black holes in the legal universe? Why not drive down the failure rate for legal communication to as close to zero as possible by using a well defined methodology in place of mysterious intuition?
Whether you use intuition or a methodology to communicate legal meaning, success or failure depends solely on one factor. Success or failure in the communication of legal meaning depend solely on the fidelity between the model of a law you have developed inside your head to the laws that exist outside it in the legal world. Your model of a law is your methodology for communicating legal meaning. If you have a high fidelity model, the success rate of your legal communications is high; if you have a low fidelity model, your success rate is low. It's that simple. Hence, it is important to make sure that your model of a law is the high fidelity model not the low fidelity model. How can this be done? To start, we will first explore the model of an object that is simpler than a law and the methodology it uses to communicate its meaning. This will ensure we understand exactly what is meant when we talk about two key concepts: 1) a model of an object and 2) the methodology an object uses to communicate its meaning. Once this is understood, we can then parlay our understanding of the simpler object into an understanding of a law, a slightly more complex object. Thus, we return to the ordinary traffic light - an unsung hero in the business of the communication of meaning. The traffic light is a simple, "three cell" organism: it needs to communicate a mere three thoughts to motorists.
Number and name the thoughts that a traffic light needs to fairly and accurately communicate its meaning. This is not a task that requires a rocket scientist. Obviously, a traffic light communicates three thoughts and the three thoughts can be named: 1) stop 2) go and 3) caution. Remember that communication, be it legal or otherwise, involves putting thoughts into words or other similar symbolic packages. So, tell me, into what packages does a traffic light put these three thoughts to deliver them to motorists? The package that a traffic light uses to communicate the first thought called "stop" is an illuminated red light; the package used to communicate the second thought called "go" is an illuminated green light; and the third and final thought called "caution" is packaged in an illuminated yellow light. Illuminated red, green and yellow lights are the parts of a traffic light that communicate its meaning. This is so important that it bears repeating. The parts of a traffic light that communicate its meaning are illuminated red, green and yellow lights. Motorist understand this methodology and, because, this methodology is used by all traffic lights, traffic lights succeed in communicating their meaning.
Are you with me?
Certainly, the methodology that traffic lights use to communicate their meaning is now well understood. It only took me a short paragraph to build a model of it in your head. Everyone of average intelligence should now be able to number and name the parts that a traffic light uses to communicate its meaning. Having come to an understanding of a traffic light - a "three cell" organism -, we can now parlay this understanding into an understanding of a law - a "ten cell" organism.
Let’s begin with a question that measures the fidelity that the model of a law you hold in your head bears to the laws that exist outside your head in the legal world. Assume that a law is no different than a traffic light. Tell me:
- How many parts are needed by a law to fairly and accurately communicate its meaning and
- what are the names of the parts?
Hmmm. I think the cat has caught your tongue.
If I ask you how many parts are needed by a traffic light to communicate its meaning and what are the names of each part, you would tell me 1) an illuminated red light to communicate stop 2) an illuminated green light to communicate go and 3) an illuminated yellow light to communicate caution. Yet, why can’t you tell me the parts needed to fairly and accurately communicate the meaning of a law?
It seems you understand the methodology that a traffic light uses to communicate its meaning but do not understand the methodology that a law uses.
Is a law less important than a traffic light?
Is it a cause of concern that law schools are graduating students who cannot number and name the parts of a law? Would you patronize a baker who is ignorant of the ingredients of a bun? Would you put your health into the hands of a doctor who is ignorant of the parts of the human body? Why would any client take a case to a lawyer who does not know the parts of a law? More ignominiously, why would any lawyer put himself into the embarrassing position of not being able to explain the parts of a law to anyone who asks?
Those with the weakness of schadenfreude can have fun asking the two questions. Clients, put the two questions to your lawyers. Law students, put them to your professors. What will a judge say when a intrepid litigant interjects, ‘Judge, may I ask you just two questions?'. The two questions expose an embarrassing gap in legal knowledge. It is a gap that ‘A Unified Theory of a Law' fills.
‘A Unified Theory of a Law’ teaches that only a small handful of thoughts - about ten depending on how they are counted - is needed to fairly and accurately communicate the meaning of a law. Furthermore, you already possess all of them. What ‘A Unified Theory of a Law’ does is organize them. Pardon me for peeping and forgive me for saying, but, when I look into your head, I see disarray. Your legal ideas, like marbles in a can, rattle around freely and haphazardly. In such a state of incoherence, they are a poor model of the laws that run around outside your head in the legal world. By organizing your legal ideas according to the protocols established in 'A Unified Theory of a Law' the fidelity between your model of a law and the laws outside will increase. Your model will become a fair and accurate representation of them instead of a poor approximation. This is important because the inflow and outflow of legal ideas depends on the fidelity of your model. Legal ideas that exceed the fidelity of your model can pass neither in nor out. It would be like asking an 8 ounce glass to hold a 24 ounce idea. Such a task simply exceeds the capacity of the glass. Hence, what 'A Unified Theory of a Law' proposes to do is to open up the hood, remove the model of law that you presently hold in your head and replace it with the latest upgrade. The upgrade will give you a model of a law that fairly and accurately represents the laws that exist outside your head in the legal world. If you dislike the upgrade, you can always roll back your way of thinking to the old model you presently possess.
To upgrade your model of a law to the highest fidelity, we need to jump from a traffic light's methodology for communicating its three ideas to a law's methodology for communicating its ten ideas. We can parlay our understanding of a traffic light into an understanding of a law because a traffic light and a law communicate their meaning in the same way. They share the same methodology. Both a traffic light and a law have a rigid structure about which they organize and communicate their meaning. They are both scoreboard-like objects. And this makes them different. Most objects that communicate meaning do so without the benefit of a rigid internal structure. Examples of objects that communicate their meaning without a structure as rigid as the structure of a scoreboard are novels, essays, sermons, judicial opinions, speeches and even poems. Moreover, as with the case of a law, many objects that do have a rigid internal structure are not recognized as having one. Their rigid internal structure exists but is yet undiscovered. Having a rigid internal structure around which meaning is organized and communicated is important because it makes understanding their meaning instantaneous and transportable.Yes, that's right. Understanding of the meaning of a scoreboard and scoreboard like objects is both instantaneous and transportable. And that insight is why scoreboards are important!
A scoreboard communicates its different thoughts using the same motif. Keep that in mind because it is important: different thoughts; same motif. The motif of a scoreboard harnesses together two kinds of meaning: 1) static and 2) dynamic. Static meaning stays the same over time. It is constant. Dynamic meaning changes over time. It is a variable in which values fluctuate. Untamed, dynamic meaning is exuberantly fecund. There is no limit to the values in its variable. Harnessing static meaning to dynamic meaning tames it. By harnessing a constant to a variable that holds values, the constant serves as the sentry who limits the values that may enter the variable. For example, one of the different thoughts communicated by a baseball scoreboard deals with 'Errors'. 'Errors' is a constant whose variable holds numeric values. The 'Error' constant bars any words denoting colors from entering its variable. The word 'red' will never appear on a scoreboard in the variable for the 'Errors' constant. Other different thoughts communicated by a baseball scoreboard deal with 'Runs', 'Score', 'Hits', "At Bat' and more. Although the thoughts arrayed on a baseball scoreboard are different, the motif itself - the 'constant - variable that holds values' pair - stays the same.
Objects that communicate their meaning using the methodology of a scoreboard are our most highly successful communicators. They succeed because of their stubbornness. A scoreboard never abandons the methodology by which it organizes and communicates its meaning to accommodate the author who wishes to use it. The author must adapt to the scoreboard. This is important. Making the author adapt to the scoreboard instead of the scoreboard to the author standardizes and brings stability to the organization and presentation of meaning. The constant is stable and, even though the values fluctuate in a variable, the fluctuation is limited to a predictable range of values. Standardization and stability allow us to perfect - in advance and with time - a thorough understanding of each individual thought and the motif by which it is communicated. When we encounter it in particular instances of the same object, understanding is, thereby, instantaneously achieved. Moreover, by putting these well understood thoughts and their associated communicative motifs into other objects, instantaneous understanding travels with us as we move from object to object. The twin benefits of instantaneous and transportable understanding are clearly evident in the scoreboard at a sporting event. Because meaning is organized on a scoreboard in a well-defined way and fans are intimately familiar with its organization, by glancing at a scoreboard, fans instantaneously understand the status of a game. Moreover, fans can get the same instantaneous understanding as they travel from ballpark to ballpark because each scoreboard is organized the same way. The organization of a scoreboard by putting different thoughts into the same motif becomes a common language that all fans share and use and speak and think. It undoes the damage done at Babel.
Baseball fans enjoy the twin benefits of instantaneous and portable understanding by virtue of the organization of their scoreboards. Why not lawyers? Wouldn't it be nice to bring the twin benefits of instantaneous and portable understanding to our laws? Why not organize and present the meaning of our laws as we organize and present the meaning of our scoreboards, traffic lights, tax returns and other forms? Alas! Lawyers are not yet taught how to organize and present their legal ideas. Instead of being forced to adapt to a "scoreboard" each lawyer freestyles, organizing and presenting a law in his own idiosyncratic way. Idiosyncrasy, however, is the enemy of meaning. The freedom of lawyers to be idiosyncratic in how they organize and present their laws is a bad freedom not a good freedom. Let's use our scoreboard example. Imagine that a disgruntled fan erases all of the constants from the face of a scoreboard. All that is left are the variables holding values. Has not the meaning conveyed by the scoreboard taken a huge hit? Without constants, the values in the variables become meaningless. What does the number '1' mean when it is written upon a spot on a scoreboard that has no associated constant? It means nothing. At least, baseball fans have constants that can be erased; lawyers -- not yet! The constant and variable that hold values pairs that define a law have yet to be discovered and articulated. Our laws are all values and no constants and the values fluctuate with no predictability. Without the help of constants to bring predictability to the fluctuation of values, it is hard to figure out the meaning of our laws.
'A Unified Theory of a Law' attempts to exploit the principles behind a scoreboard to bring its twin advantages -- instantaneous and transportable understanding -- to our laws. In 'A Unified Theory of a Law' we will construct a "legal scoreboard" that will fairly and accurately represent a law. Its parts - pairs of constants and variables that holds values - will model a law. The parts will be assembled together into a structure. 'A Unified Theory of a Law' teaches that meaning is attached to both the words of a law and the structure of a law. The words of a law, like ornaments, adorn the structure of a law. The words of a law change; the structure stays the same. It repeats itself again and again in every instance of a law. To generate a law's meaning, both its words and its structure cooperate. Anyone who wishes to push meaning into or pull meaning out of a law must be mindful of a law's structure. Any failure to respect the structure of a law generates inscrutable legalese and legal misunderstanding. Thus, our endeavor in A Unified Theory of a Law is to answer two simple questions:
- How many parts does a law have and
- what is the name of each part?
- Successful legal communication depends on the fidelity between the model of a law you have developed within your head and the laws that run around outside your head in the legal world. Your model of a law can be either a fair and accurate representation or a poor approximation. Fidelity makes a difference. A low fidelity model cannot handle high fidelity ideas in the same way that a four ounce glass cannot handle a sixteen ounce idea. It simply lacks the capacity.
- The number of ideas needed by the model of a law inside your head to fairly and accurately capture the meaning of a law is not only finite but few. Only ten (10) ideas are needed. That's right - only ten! Know the ten and you can understand any law as well as the smartest lawyer. Why? A law is like a cow that gives the same quantity of milk no matter who does the milking. Any lawyer, and, in fact, any non lawyer of ordinary intelligence, who milks a law for meaning using the ten (10) ideas will get the same quantity of meaning in their pail as the smartest lawyer will get in hers. What is the significance of this? The monopoly of lawyers over the meaning of our laws has ended. The ten (10) ideas bring democracy to the understanding to our laws. Legal understanding is now within the capacity of every citizen - not just an elite priesthood. Don't just take my word for it. My assertion can be tested. Learn the ten (10) ideas so you can decide for yourself whether they do or do not fairly and accurately capture the meaning of the laws that run around outside our heads in the legal world. Do they or don't they? What do you think? What ideas do you use to capture the meaning of a law? Are they the same as or different than the ideas that 'A Unified Theory of a Law' uses?
- Our laws are only vanilla and chocolate. There is no strawberry. Ice cream has more flavors than two; but not a law. A law has only two flavors: commands and permissions. And if you are not talking about commands or permissions, you are not talking about a law. It may sound like you are talking about a law, but you are not.
- Underneath the flesh of our laws is the same skeleton. All of our laws are based upon the same structure. The words of a law adorn the structure of a law like ornaments on a Christmas tree. The words of a law are different than the structure of a law. More importantly, the structure of a law can be viewed independently of the words of a law.
- A law is simple not complex, its behavior is regular not random, and its structure can be broken down into parts and mapped on a Periodic Table of the Elements of a Law®.
- A law arises from the interplay of four (4) relationships one of which is factual and three of which are legal. The ten (10) ideas - with the exception of the three clause sentence - that fairly and accurately capture the meaning of a law abide within the four relationships. The four relationships can be depicted graphically on a Triangle of Law®. The factual relationship is horizontal forming the base of the Triangle of Law®. It runs from a source to a recipient. The legal relationships are vertical occupying the two sides and middle of the Triangle of Law®. All of the legal relationships run from a lawmaker at the acme of the Triangle of Law® to either a source, conduct or a recipient at its base.
- Although the facts are infinite, for the purposes of a law, there is only one preferred way of looking at the facts: as a flow of conduct from source to recipient in circumstances. Moreover, a flow of conduct from a source to a recipient in circumstances has the property of polarity. It is either on (positive) or off (negative).
- Lawmaking boils down to who makes the decision about whether or not to engage in a flow of conduct from source to recipient in circumstances: the lawmaker (regulation) or the source of conduct (deregulation). Commands be they positive or negative mean that a lawmaker decides; permissions mean that a source decides.
- For each set of facts, there are only three permutations of a law available to a lawmaker: a command for positive conduct, a permission for positive or negative conduct and a command for negative conduct.
- The process of lawmaking can be broken down into three distinct activities done contemporaneously. The three distinct activities correspond to the three different focuses of a lawmaker's attention during lawmaking: 1) the conduct 2) the source of conduct and 3) the recipient of the conduct. These are also the three legal relationships in the process of lawmaking. 'A Unified Theory of a Law' calls the first focus, 'issuing a law', the second, 'binding weight to a source' and the third, 'binding standing to a recipient'. As the focus of a lawmaker shifts, so must our focus shift. Focus lock is a a big problem.
- The sentence perfectly adapted for expressing a law is a three clause sentence with a main clause, if clause and even though clause.
During my twenty-five years of practicing law, I have seen more legal misunderstandings than understandings. Legal uncertainty outweighs legal certainty. The misunderstanding and uncertainty arise because lawyers do not speak the same language. They think they do but they don't. In the HBO show, Curb Your Enthusiasm, is a scene from an episode called "The Ski Lift' in which Larry David pretends he knows how to speak Yiddish. He utters guttural grunts that crudely resemble Yiddish but they are just what is heard - meaningless guttural grunts. This is what lawyers are doing too much of the time. They sound like they're speaking law but they're not. To borrow from Macbeth, much legal talk "is a tale told by an idiot, full of sound and fury, signifying nothing." There is simply no communications discipline in the legal world. If the language that engineers speak to communicate how to build airplanes was as mixed up as the language that lawyers speak, no airplane would get off the ground and everybody would be afraid to fly. This is how ugly it is in the legal world. Yet, as ugly as it is, nobody seems to care! I take that back. Saying that nobody cares is not quite accurate. It is not that nobody cares. When it comes to communicating legal meaning, the blind that are leading the blind refuse to admit they are blind. They have convinced themselves that they can see and see well! God save us from those that think themselves wise and learned yet abide in the midst of ignorance.
An invasion of armies can be resisted,
but not an idea whose time has come.
Victor Hugo
A Unified Theory of a Law - in all its simplicity - is presented in its entirety on the pages of this website. To learn, all you have to do is click. Begin your legal education - or reeducation - by Clicking Here
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For we cannot but speak the things
which we have seen and heard
Acts 4:20