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Is textuality a necessary feature of legal provisions?
A while has passed, but my excitement still keeps high, since the InfoSoc Workshop on Contract Visualisation, paired with Legal Design Jam, offered by wonderful Stefania Passera, Concept Designer & Visualizer, PhD Researcher at the Aalto Univeristy. In this short post I won’t be summarising her argument, but share the thoughts that have buzzed in my head for a week now.
The problem is: contracts are long, people don’t get them (in B2C) or think they agreed are later realise they didn’t (in B2B). Text as a tool is good, but far from perfect. To quote Passera here: ‘contracts often fail not due to legal mistakes, but communication mistakes‘. Proposed solution: let’s put pictures inside, and more generally: pay more attention to visualisation and design.
Example: passage of risk in shipping contracts (from Stefania Passera):
Question that bothers me: must contract (and actually law as well) be textual, or could it be more varied in form? In other words: is textuality a necessary feature of legal provisions; or are they embodied in text because that’s the form we historically got used to? A different set of questions, which I will not consider but state here, is on the very bottom of the post.
It is worth realising that in many instances practices of supplementing, though not yet replacing, text with pictures, in order to facilitate communication, already take place. Let me here point just to two: Creative Commons licenses and App Licences in Google Play:
However, there is a significant difference between representation of existing and textual law in a different form, and creating independent non-textual legal provisions. About a year ago, during GRIM Winter School in Stockholm, prof. Peter Dahlgren, speaking about visualisation of legal material, claimed that trade-off here is between clarity of communication and precision, with pictures being clear but imprecise, logical formulas precise but unclear, and text somewhere in the middle. So it’s best to use all to represent.
But could we use all those forms to make law?
In Polish legal theory we cherish the distinction between a legal provision (a textual unit) and a legal norm (a non-textual sollen, derived from a legal text, often from many provisions, and needing language to be stated, but not being a lingual statement in itself).
If one accepts this distinction as ontologically possible, the conclusion that follows is: law as statutory law must not necessarily be textual; if there is better form, form better realising meta objectives of stating the law, then the better norm should be chosen.
The obvious examples that come to my mind here are traffic signs or non-smoking or no dogs signs (a crossed cigarette or a dog), first being examples of post-statutory regulation, second of either communication of public law, or of contract law (if the owner of a cafe decides not to allow dogs inside). The first, however, are first explained by text in the statue.
Could one imagine a judge interpreting a picture contract clause on passing of risk (like in the first figure above) or a crossed car at the entrance to the park (to use Hart’s classical non-vehicles example?). I could. But would this interpretation be text-free, or would judge first need to textualise the picture as well? But even if so, does this mean that law needs to be text?
To my mind, statutory law or ‘written’ contract do not necessarily need to be represented in text. But I’m happy to hear any criticism of this view.
Other questions here are:
1) When to replace text by pictures, when to pair one with another, and when to draft contracts in technical jargon and then separately create info-graphics to just visualise them?
2) When could it be useful to add pictures to a contract?;
3) Should it be obligatory for entrepreneurs to do so in consumer contracts? (like it is now, in some places, to e.g. draw sugar cubes on Coca-Cola cans);
4) Could using pictures help contract drafters in realising agreement’s weak points? Is there a parallel between conversion to a picture and conversion to XML, when need to clarify meaning of provisions and pictures are concerned?
All these seem like good questions for a paper to me. Feel free to take them!