Over the last few months I have had to comprehend a wide range of legal documents which are all eloquently written and concurrently rooted in their own legal prose and esoteric references to the very school of law it delineates. Legal practitioners of the past have always drawn on competing doctrines that were woven together in the course of complex information flows from science, the courts, local customs, distinct languages, boundary-changing territorial conquests and the continual information processing of markets. My conquests in this domain has been rather overwhelming due to concepts of knowledge embeddedness (context specific frames of meaning and signification as indicated by the difficulties of translating knowledge across different communities) and structural embeddedness which alludes to the intertwining of socio-economic structures as expressed by the frequently overlapping character of digital, social and professional networks. The proliferation of self-sustaining networks on the internet from the archaic ICQ, MSN Messenger, forums centred on points of interest, professional communities and virtually distributed organisations have resulted in codification of knowledge in the most disparate fringes of the world wide web. Hence, I am overwhelmed at the fact that the law makers themselves have relied on introspection opposed to a interdisciplinary approach to leverage these repositories of experience and knowledge. This has been a rather paradoxical affair as I believe in new age collaboration and sharing of information to build amicable relationships to pursue mutual strategic, operational and tactical objectives. So why did the law evolve this way and how can we take a view towards the sanctification and transcendence of this legal paradigm? To do so, let us consider the below snippette first:
To understand this we need to meditate on the concept of how the law emerged. David R. Johnson in Emergent Law and Order: Lessons in Regulation, Dispute Resolution, and Lawmaking for Electronic Commerce and Community asserts that “If you think of the world in hierarchical, theological terms, as did our medieval forebears, then law is merely an expression of God’s will – a set of rules promulgated from above (albeit through an increasingly secular state) and beyond question by mere reason. If you begin to think of the world as a simple rational machine, such as the Enlightenment’s metaphor of the clock, you then aspire to a law that is “discovered” like the laws of physics and that posses a coherent rational consistency”
The problem here however in my view is that these were stemming “solely from physical and cultural power and providing a top down order in which the top represented nothing more than the accidental identify of those who had prevailed in conquest or who had control of mainstream culture”. Furthermore, whilst legal discourse gives a degree of protection its not necessarily required at the start of strategic experiments. Just like how blockchain disrupted user cases by enabling a distributed ledger, why cant legal agreements simplify themselves and their nomenclatures towards trust based documents that are rooted on principals of information sharing, reciprocity and collaboration? Information is an essentially distributed resource in Nature. It is not fully contained in central units, but rather distributed across a huge number of parts or elements, which are far spread out in space and time. Diverging agendas and uncooperative practices cause trepidations and are at its core inhibiting processes to innovation. Whilst information is omnipresent, it can be abused and this is why many advisors say that you need need protection should someone steal your ideas in a blatant disregard of your integrity and contribution to the idea of collaboration itself.
So what do we do in an age of quarrel, competition, tit-for-tat and a clear manifestation of increasing complexity over time? It is becoming difficult for laypeople to understand onerous and wordy contracts that are often infused with warranties and conditions but also which fundamentally transgress the idea of trust in law. Yes, we have seen evolutions in these domains and there are Memorandums of Understanding (binding and non binding) to facilitate the precursor to actual contracting stages. Here, parties come together and define the scope and activities of their engagement and agree to simple governing principles around information sharing, confidentiality and executional priorities. It is sacrosanct to the notion of intellection and ensuring things move forward.
Another area to explore and which will be delineated further in a future article centres around the business networking structure known as a Virtual Enterprise Network (a supply chain like structure whereby member companies pool together resources and go after big fish – therefore baking a pie and taking a piece each where the pie is non existent without coming together). This model relies on three fundamental legal frameworks that cover the pre-contract, contract and post contract aspects of collaboration. I provide a short summary of them below and I encourage you to buy this book to understand more.
- Letter of Intent (LOI). This is a pre-contractual bilateral agreement between a network business and the network “Business Integrator” used in the opportunity evaluation phases
- Memorandum of Understanding (MoU): This is an optional consortium agreement that can be used before a Virtual Enterprise Agreement is created, if it is particular important to induce clarity around the roles and intellectual property.
- Virtual Enterprise Agreement (VEA): This is a very detailed agreement between every member of the network covering all aspects of INTERNAL relations (e.g. IP), EXTERNAL matters (e.g. future relationships and ownership of customers) and HYBRID matters (such as liability and dissolution of the virtual enterprise).
Collectively and at the end of the day, hardcore contracts are all heresay and if things don’t work out between parties they don’t work out. True, there may be discourse against each other – but at the end – doesn’t quarrel diminish the precedent of innovation anyway?