Laying Down The Law – Down with the System?
Last week I became obsessed with domino theory. I read up on it, listened to podcasts and pondered its implications.
But it wasn’t the traditional domino theory of the cold-war era I was concerned with; instead I was researching a new way of thinking about how systems work—and what happens when systems fail.
There is a new line of thought emerging about why large institutions collapse, and why, when they do, they crash so badly. Just think of the financial disaster caused by Lehman Brothers, or of the environmental destruction wrought in Florida by the Deepwater Horizon oil spill.
This new domino idea is based on the premise that human beings have an innate and frustrating desire to complicate things. We like it when things are complex; it shows that they are sophisticated. In many respects, we can’t help but create complicated rules and structures around what we do. Our world is hard to understand, and any systemisation invariably reflects the environment it’s emulating.
But complexity is problematic. The more interconnected we become the closer our dominoes get stacked—and the more dangerous it is when they fall. The result of this is what safety engineers call ‘tightly coupled systems’. The more dependent the various parts of our system become, the easier it is for things to fall apart and the harder it is for us to shut it all down when things go horribly wrong.
But what does this all have to do with lawyering? At first glance, not a lot. Lawyers are not engineers; they don’t install safety devices in mines; and they aren’t financial wizards creating complex derivative markets. But if we look at the principles behind dealing with complex systems, we can see that it has just as much to teach lawyering as it does engineering.
Because although they don’t often create them, lawyers are interfacing with complex systems all the time. Tax law in financial markets is complicated. Evidence law is complicated. Commercial mergers are complicated. Working with the machinery of government is complicated. All of these things are hard to navigate and are often so interdependent that when one part fails, another will too. Just look at the Government’s inability to regulate financial investors before the 2008 credit crunch. It was a perfect example of a tightly coupled system creating disastrous results.
The benefit of lawyering is that it can act as a circuit breaker within a socio-legal system. Lawyers spread risk, and it’s part of their job to figure out how institutional relationships work. In this way, they can be a helpful and effective tool in the private citizen’s toolbox. By providing advice on key milestones in a system (be it a company restructuring or the drafting of a new regulatory framework) lawyers can act as a check on ‘tight coupling’. And that’s a good thing.
But this structural approach to lawyering will only work if lawyers themselves take a step back and have a look at the big picture. Most people become lawyers to fight for justice—but it’s often an individualised fight, one institutionally emphasised by the lawyer-client relationship.
Accidents will always happen, and in tightly coupled systems, accidents are even more dangerous. But we need to extend this obvious realisation beyond structural engineering. Because by thinking of the profession as one of systems regulator, not solely as one of individual advocate, lawyers may end up positively influencing their world around them in ways they have not yet imagined.