Yesterday I stated a theory that poor legal writing (in transactions) is the result of negotiation rather than tradition. What if contracts weren’t written with words, but rather, with symbols?
At the bottom of this page is the Creative Commons license for this work. It has all sorts of tiny print, but it can be summed up in three symbols. Isn’t that much easier to read than all the small print? Wouldn’t it be easier to negotiate to just ask for different concepts instead of different words? The words represent the concepts anyway, but changing them requires conformity to the rules of grammar. This makes it difficult to express a substantive change because the negotiator is constrained by the context. He has to make his proposed phrase fit with as few word changes as possible (or risk loosing cooperative ground with the opposing side).
Legal concepts are more like symbols than words. There are all sorts of “magic words” that have come to possess established legal meaning. They are “magic” because the can invoke a particular concept without interpretation. Courts have already decided what they mean. Laypersons don’t know which phrases to use to convey the legal concept they have in mind. Symbols, in this context, increase clarity, make it easier to suggest change (the focus moves from wording to concepts), and are even machine readable. Think of a legal symbolic language as a technology standard. Everyone could communicate with perfect clarity because we’d all be using the same building blocks. Ambiguity and confusion are the result of expression of ideas, but the ideas can be expressed in a standard form that would allow no room for alternative interpretation: legal symbols.
A system of legal symbols could dramatically increase efficiency. I could feed two contracts into a computer and quickly determine which concepts are different – not just which words are different. As an added bonus, it would be easier to see what legal concepts are left out of an agreement. A standard error message could read, “Contract contains no governing law clause.” Lengthy “boilerplate” language could be condensed to a few standard symbols.