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This chapter of “Liquid Legal: Transforming legal into a business-savvy, information-enabled and performance driven industry” takes a systemic approach to the legal function in business enterprises. Defining law as a set of rules to govern human behavior, legal as the social system with the ideal of justice as normative reference, and laws as the medium through which this norm is operationalized, the article proposes to view both the dissolution and creation of ambiguity as legal modus operandi.
Ambiguity is simultaneously dissolved and created in legal contexts which frame the interactions of agents such as governments, courts, law firms, business enterprises, and private citizens. A legal context centers on a case or matter. Cases emerge when the law (the abstract set of rules) is applied to events (concrete facts in time and space). Cases are thus instances of the law, and they are always situated in a specific context that is defined through interest-driven relations of law and event, of the general and the particular. Like all self-referential systems which take their own output as new input, legal, through ambiguity as its modus operandi, primarily produces more legal.
I interpret the current pressure on in-house legal departments to “do more with less” as a symptom for the dis-functionality of the self-referential legal function within a business enterprise.
For legal to overcome this dis-functionality and to take a leadership role in business, I propose to shift the legal mind set from adversarial to collaborative. Looking at the constructive side of ambiguity, corporate lawyers can learn from each other and develop standards for simpler legal transactions. By focusing on “win-win” rather than “win-lose” relations, legal will create new business value instead of self-referential output.
Technology and the ability to streamline and automate workflows, leverage the scalability of digitalized legal assets, and create transparency across the whole enterprise will enable such an increase of legal value contribution. Transparency can help establish a corporate culture built on trust, fairness and equality of opportunity—a culture which I believe is conducive to doing business in a globalized, complex and polycentric world.
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Luhmann, N. (1992). Operational closure and structural coupling: The differentiation of the legal system. Cardoso Law Review, 13, 1419–1441.
Schmitt, C. (2003). The Nomos of the Earth. Telos Press (original publication: 1950).
Strathausen, R. (2015). Leading when you’re not the boss – How to get things done in complex corporate cultures. New York: Apress.
- Masters of Ambiguity: How Legal Can Lead the Business
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