"What?" "Who?" "Why?": An Introduction to Legal

Webster online dictionary defines the meaning of the term legal as “established by or founded upon law or official or accepted rules.”¹ The adjective can be used in a predicative way, as in: “Her action was legal,” or in an attributive way: “She took legal action.” When used in an attributive way, legal no longer expresses the legality of a thing or action, but, together with the noun, creates a new specific meaning.

However, latest when, as in Liquid Legal, a genuine noun is missing, the meaning of legal becomes ambiguous. As a nominalized term, legal may refer to jurisprudence or the profession of law in general; it may also refer to in-house legal departments, to law firms and legal process outsourcers (LPO), to law-making bodies or agencies, to courts, or to any other organization or activity somehow related to the law. The title of this book further enhances this linguistic ambiguity by qualifying legal as liquid—as something fluid, amorphous, and without shape.

Such ambiguity appears to be fundamentally opposed to the concept of law and the goal of the legal profession. The purpose of law is to govern behavior, and this purpose only seems achievable if the meaning of laws is clear and can be univocally understood. Using terms with unclear meaning, let alone intentionally creating ambiguity, appears counterproductive to that goal, and one of the deadly sins of lawyering. The below statement from Escher^{[4] [5] expresses the negative connotation which the term ambiguity carries for most legal professionals[6]:}

Lawyers must be capable of advanced legal reasoning, they must know the law, and, because so many in-house positions are transactional in nature, clients look to lawyers to effectively memorialize business agreements.

While it is true that, in each single case, ambiguity is problematic for achieving agreements and thus should be reduced to the minimum, I want to make a structural argument for why ambiguity also, in principle, is unavoidable and a necessary constituent of all legal activity. The simultaneous dissolution and creation of ambiguity, that is the central thesis of this article, is the basic legal modus operandi, an operation without which legal could not even exist.

Part one of this article, entitled “Justice, Law, and the Legal System,” compares the functioning of legal to the functioning of language. Just like speech acts are situational linguistic instances which presuppose a whole system of language in the background, cases are situational legal instances which presuppose a whole system of law in the background. And just like the meaning of a particular speech act depends on the situational context, the meaning of single rules and the assessment of individual cases (who and what is “right or wrong,” “legal or illegal”) also depends on the context which the agents create. Legal cases and contexts are in a state of flux, constantly dissolving and, at the same time, producing ambiguity.

In the second part of this article, entitled “‘Win-win’ versus ‘win-lose’: The Systemic Predicament of In-house Legal Departments,” I explain the difference between a business and a legal frame of reference. I structure legal services in a 2 x 2 matrix and review two areas in which legal can take a proactive role in serving clients and delivering more value to the business: Risk management, i.e. switching between legal and business frames of reference and turning legal issues into quantifi­able business issues, and project management, i.e. improving individual and group performance in legal service delivery, especially when working with external counsel.

The third and final part of the article “Corporate Culture and The Business of Legal” calls for a mind shift of legal professionals, a shift which I deem necessary to run legal as a business. I am sharing thoughts on what Liquid Legal could look like in corporate practice, showing what legal practitioners can do to advance the role, its relevance and the leadership potential of in-house legal departments. In essence, I argue that legal should make corporate culture its business and help create what, in another publication, I have called a Culture of Lines,^[7] characterized by abundant information, pervasive communication, and transparent rules.

2