Is this change possible?
The legal system and the assumptions it is built to serve are the water we swim in — as fish are unaware of the water (I’m assuming fish are suspended in yet not aware of the water), we are essentially unaware of the legal system and how it affects our day-to-day behaviour. It follows that we are also unaware of how we could change our behaviour and trigger change in the system, and unaware of how that re-visioned system could serve our desire to change our lives and our world.
If we think of it at all, we tend to think of the legal system as something outside of our business endeavours — a malevolent third player that impacts (thwarts) our best hopes and presents obstacles to be overcome – a drag on momentum. But the legal system is integral and interdependent with business, community, and environment. The way we interact with the legal system, the way we use it, the way we design our legal interfaces with one another, with customers, with employees, with statutes, is within our control to a much larger extent than we often realize.
Transformative power begins with realizing our ownership of the system and with our awareness that every person, every group, every legal entity and business, has the power to catalyze change by attending to the way the system is engaged and used.
As contracting parties, even within the context of the larger legal system, we have a great deal of power over the design of our working relationship. We can specify or design our own ‘Law’ (the action plan and the rules for how we’ll work together); our own ‘Governing Body’ (who decides what); and even our own ‘Justice System’ (the process that we’ll use for enforcing the contract’s provisions and for making decisions in times of crisis or dispute).
The system is not ‘out there’ lying in wait to ambush business. The system is just a system — and like any other system, can be re-designed in part or in whole to better serve the human needs and human potential. We just have to look at the system – become aware of it and make conscious, informed choices about how to engage it.
Role of Lawyers
If the parties can design their own relationship and system for working together, what role do lawyers have? The lawyer’s job is to know the limits of the autonomy that the larger system allows; to know the default settings in statute and case law that affect how the larger system will interpret and enforce the words of the contract; and to advise on best contractual language to support and sustain the parties’ actual intentions and their proprietary system.
“Representation” by lawyers is only necessary when we believe in the inscrutable system/priesthood model. The lawyer’s role as counselor is more realistic and beneficial when, as parties, we own our power to govern ourselves and our relationships — and need an expert to help us with the interface between our proprietary governance system and the larger, conventional legal juggernaut.