I define anti-law as the means of producing legally binding outcomes through the use of non-legal methods. Lawyers would argue that this is the area of Equity but Equity is a poor cousin to anti-law. Where in Equity there would largely go towards intent, there would be little design. In anti-law, there is both intent and very precise design.
THE CRYSTAL GLASS PARADIGM
Technically, anti-law would be the opposite of law but one can see I am using some poetic license. I came up with the notion of anti-law when I found it hard to describe what it is I do. I felt it somewhat inaccurate to say that I just drafted contracts using a different method. They’re not contracts of the ordinary ilk and they are not really drafted. Would I be quibbling over semantics to say that I ‘architected the preferred operating model of an enterprise into a legally binding agreement’? I don’t think so. Although any lawyer could argue the point so too could two people argue that a Waterford crystal champagne flute and the twisted coffee mug my four year old daughter made in art class are both ‘receptacles for drinking liquids’. The differences are palpable and the drawbacks in legal definitions are obvious.
ARCHITECTURE AND ELEGANCE
Anti-law is then the use of enterprise (or domain, to be precise) architecture frameworks to extend the architectural process to include the commercial solution. It is where the beauty of the technical solution meets the harsh reality of the business’ operating model. The elegance is in combining the two in a single, seamless architecture (and indeed the goal of The Citadel Project).
The next question is why? Why come up with anti-law? Why not just do better drafting. The answer, like our cups, is that standard legal methods are incapable of dealing with complexity. In short, the adversarial system (and legal positivism) is in direct conflict with the ontological reality of how things/matters/projects/capabilities change over time. Where the latter deals with complexity over time, the former takes a narrow, local view. This is not a small problem. In positivist terms, where a thing changes over time, is it a new thing? So we can see the issues of changes and variances in contracts. In ontological terms, the thing is the same thing, it just morphs. It does, however, retain the same identity and unity.
Some might say that it’s an outrageous statement to argue that contracts don’t deal with complexity. They must? Look at the lack of litigation in the outsourcing and Defence procurement areas. Just as the lack of fighting is a poor indicator of friendship so too is the lack of litigation a good measure of the accomplishments of the intended operating model. Don’t forget that this lack of litigation often continues through years of poor performance. It would be poignant to ask what the point of the contract was in the first place? On the other hand, in the building and construction industry where the complexity is just as great but time and cost are more critical (to each business) one sees that litigation is rife and commercial ruthlessness is the default.
THE FOURTH DIMENSION
In order to deal with complexity in a precise way and a way which allows the contract to adapt over time with the complexity of the evolving threat/business environment/project/capability – the key component is time. Architecting such an organic contract cannot simply be a true reflection of the ‘business’ at any given time – a snapshot – it must actually be the business operating model.
Cash is king. A common business saying but never a truer phrase has been spoken in the commercial world. Just as all roads lead to Rome so too must all commercial ideas and methods lead to this single commercial outcome – cash flow. Architecting an organic contract not only assures the developing program but the revenue is also assured. It is the revenue model which must be guarded and variances which affect it must be dealt with.
How to architect a complex and evolving contract is dealt with in Pt. 2