A lawyer keeps linking concepts to figure out what matters in a situation that he does not know as well as his client. His account of a given matter is always incomplete, and yet he has to draw something that looks like the situation that his client faces. Hence, his drawing can be sketchy but cannot be incomplete. An incomplete drawing is difficult to understand. As you know, it is possible to manage incompleteness by pursuing completeness in law as in software development.1 The practitioner who links legal concepts draws a connected graph that is complete. Many legal situations involve three people or three groups of people such as:
- The settlor, the trustee, and the beneficiary, or a creditor;
- The software developer, the software publisher, the software distributor, or the end user;
- The owner of a thing, its possessor, and a creditor.
These situations are both common and complex, at least because the practitioner has to determine what concepts link these people or groups of people, for instance whose creditor one is. These situations arise in common law and civil law although different legal concepts underpin them.2 What makes these situations similar? These concepts are used by people to defend their interest and promote their values. Issues of conflicts of interest and of resource allocation arise.3 Concepts are nodes of a graph that is stable and complete notwithstanding intricacies that are specific to a given matter. The lawyer who connects the nodes with links pays attention to the context of a matter to choose the right perspective.4 Links enable him to materialise it.
In brief, looking at the relevant nodes from the right angle helps to solve legal issues.
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Navigating incompleteness at 1.2. ↩
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Compare for instance Ferrini, Contardo. “'Furtum usus possessionisve'. Contributo alla dottrina del furto in diritto romano." Opere di Contardo Ferrini. Edited by Vincenzo Arangio-Ruiz, vol. 5, Milano : Ulrico Hoepli, 1930, p. 125 and ff. Internet Archive, http://archive.org/details/BRes0105725; Smith, Lionel D. Trust and patrimony. Revue générale de droit, 2008, vol. 38, no 2, § 10. https://doi.org/10.7202/1027041ar. ↩
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See Cross-border estates: A practical approach at 1.2. ↩