Contract law and why Gödel says a mind map of law can never be consistent and complete

In Season 6, Episode 7 of the Game of Thrones, the character Sansa Stark is shown sending a note to Petyr Baelish with the following terms

“[…] to protect me. Now you have a chance to fulfill your promise. […] Knights of the Vale are under your command. Ride north for Winterfell. Lend us your aid and I shall see to it that you are [well/properly] rewarded.”

While this exact scene was playing out on the TV, I was toying with the pages of Ewan Mckendrick’s book, trying to wrap my head around “Unfair Contract Terms” and a curious thought came over me…

Was that note from Sansa Stark a binding contract? Could Petyr Baelish sue in an English court if Sansa breaches her promise?

I attempted to find out the answer by doodling out a series of flows to determine contractual compliance which led to the creation of a mind-map of contract law, further leading me into the maddening depths of common law along with which came the bitter realization that any mind-map of common law can never be consistent with reality— i.e. no matter how detailed one attempts to create an axiomatic set of legal rules, the unwritten common law negates the ability to use the rules as an algorithm, because to prove the mind-map as consistent and complete, we’d have no option but to refer back to the rules of the very mind-map itself— a self-referential system forever doomed to be incomplete governed by a metaphorical Gödel’s incompleteness theorem of law[1].

Drawing Hands by M. C. Escher, 1948, Lithograph [2]

That’s when my understanding took another turn— Like M.C. Escher’s lithograph “drawing hands”; if common law writes itself and later uses its own writing to re-write itself, then this system may very well fit the definition of what Douglas Hofstadter calls a “strange loop”— a self-referential, self-evolving system that can never be proven because of the lack of a set of axioms to prove truth or falsity and this is thus its strength— i.e. it is this very vagueness that places primacy on the judge’s reasoning and permits flexibility in judgement!

I was completely stoked and now genuinely curious—

The fifth module in the M.Sc. Programme focusing on contract management, was momentous for several reasons. Firstly, it marked our official entry into the second year of the programme but more importantly the cohort felt way more cohesive than ever before. It was almost as if the epiphany of the milestone further bound us.

Assisted by some of the most eminent lawyers practicing English contract law, the brilliant Barrister qua course leader, Lindsay Henshaw, explained to the cohort members that common law differed from civil law in several ways—

1. Common law existed in the minds of the practitioners and previous experiences and that the body of law itself was like a story, passed down through the generations through written records.
2. The primary model of operation was analogical reasoning in that a case decision sought refuge among other similar resources of common law.
3. Unlike continental law based on Napoleonic codes or Roman law, common law resisted reduction to a set of universal axioms and only sought coherence with very specific-types of cases.

Ab initio, discussions on historical landmark cases that helped shape contract law were liberally sprinkled throughout the course lectures. Practicing lawyers from a world-renowned law firm, Bird & Bird, led by Mr. Andrew White, a distinguished lawyer with unparalleled expertise in contract law, provided practical context and updated summaries, on more modern precedent-setting cases, which included an understanding of the legal ramifications of the recent Brexit referendum but what was perhaps the apotheosis of the module was the talk given by the most honourable, Sir. David Higgins, executive chairman of the HS2 megaproject.

Sir. David Higgins talks to the cohort about the HS2

Sir. Higgins made the important argument that a megaproject is never about the sum of its technical parts, but instead he urged the cohort to focus on the anthropological and social transformation aspects of such human intervention systems. Sir. Higgins also extolled the importance of building stakeholder / political support to successfully realize initiatives of such magnitude.

Throughout the week, practical assignments were handed out to individual teams which involved deconstructing actual litigation scenarios and interpreting contractual situations. In one particular onerous case study, the course leader highlighted to us how all the teams had overlooked one crucial but decisive detail in the case materials, lending further proof to the importance of interpreting contracts with sharp faculties.

The teams present their deconstruction of the contract case scenario

The teams present their deconstruction of the contract case scenario

On the social front, a plethora of networking activities really brought the cohort together: this included a formal dinner at one of Oxford’s oldest constituent colleges, Balliol. The images that follow probably say more than I ever could, about the amount of fun and interaction we had over the course of the module. The cohort members also provided much needed economic stimulus to several institutions that made up the bulk of Oxford’s nightlife — which is really a very fashionable way of saying we drank a lot!

Some of the cohort members get together for a pastiche of an “infamous photo”

Some of the cohort members get together for a pastiche of an “infamous photo”

Cohort members pose with the course director, Dr. Atif , at the pre-dinner drinks reception

Cohort members network and interact at the pre-dinner drinks reception

Cohort members network and interact at the pre-dinner drinks reception

Cohort members & guest speakers network and interact during the dinner at Balliol College

Cohort members at the Day 0, informal meet-up session at the Wig & Pen

Contracts saturate our lives— Omnipresent; in parking stubs, multiplex entry tickets and timely pizza deliveries. A better understanding of contract law and the obligations contained therein leaves one clear message— contractual disputes are costly in several ways: they consume time, resources but more importantly they have the potential to damage human relationships, more often than not, irreparably.

In her closing lecture, the learned barrister recommended a more natural form of working together— one that involved believing that even the simplest of transactions have multiple interlinked social and economic ramifications and consequently she relayed the importance of relational contracting.

These were the types of contracts / relationships that, since time immemorial, built up the very fabric of society—  those that involved trust, honour, altruism and fairness and it is my belief too, that this ability to make and honour these meaningful relationships, without the threat of litigation, in consideration of the fellow-being, is what ultimately, makes us human.

~

Post Script:

• My insufficient attempt to mind-map contract law can be found here

http://bit.ly/2au8L4L

• If a mind-map is insufficient, can a visual representation of law ever exist, inconsistent and incomplete as it may be?

Jay Stanley[3] a researcher at UCLA, speculates that fractals with their infinite levels and sub-levels of increasing detail may likely hold the key. A reasonably accurate fractal map of law cases, he speculates, can even automate judicial decision making, for those cases which fall clearly within the region bounded by the fractal. Those cases that lie on the fractals’ edges, he further speculates, might require manual intervention. The moral and ethical implications, will no doubt be monumental.

[1] Gödel’s second incompleteness theorem, an extension of the first, shows that a system of axioms cannot demonstrate its own consistency. However, an application to law is, I concede, very far-fetched and was never an intention of this monumental theorem which is instead focussed on formal systems such as mathematics.

[2] Drawing Hands by M. C. Escher, 1948, Lithograph., Reproduced as non-commercial research and private study under “Fair Dealing” principles

https://www.gov.uk/guidance/exceptions-to-copyright

[3] http://bit.ly/2aKXauL, accessed 1^st August 2016

The missing 50%

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Promises made, promises broken – contracts in major programmes