Two people, or groups of people, are in direct conflict with one another. The first has a distinct set of advantages the other does not possess, say, a certain skill set particularly well suited for prevailing in one particular contest. The second has another set of advantages the other does not possess. The trouble, however, is that these advantages are of no value with regard to the skills required to prevail in that one particular contest. Say, a boxing match where the first is a highly trained boxer and the other is a professional dancer. We see these types of ill-matched contests everywhere––in sports, in law, in business––in any area where divergent interests clash and conflict. The question arises: what can be done in an ill-matched contest to even the odds?
Standard responses would include: “Overwhelming strength is of no, or limited, value if strength itself represents but a small percentage of the skills required to win. The dancer should focus on speed and agility and somehow work to create a match where surprise and reflexes, agility and speed, rather than brute strength will carry the day.” “The dancer will likely have greater staying power and long–term endurance––so prolong the match for as long as possible so as to tire and wear out the other.” “Defense rather than offense should become the focus since it’s clear they’re ill-matched in terms of their offensive capabilities.” Etc. Basically all these suggestions are variations on a theme––somehow create a contest where your strengths are enhanced and the other’s strengths are lessened or marginalized.
We know these suggestions, however well-intentioned, will only take us so far. At some point the match will have to be undertaken––and we’re reasonably certain the highly trained boxer will prevail. But there are other possibilities. We’ll call the first “reclaiming.” To reclaim is defined by Webster as “to rescue from an undesirable state also : to restore to a previous natural state.” We’ll call the second “instauration.” Instauration is defined by Webster as “restoration after decay, lapse, or dilapidation : an act of instituting or establishing something.” To rescue––to improve the skill set of one side through training and practice––and to restore––to pare away that which is outdated, ineffective, or otherwise valueless. Both are required.
“. . . there are two types of fighters, the former strike all over the place hoping one would land, the latter, assured of their prowess and capabilities, hit once and destroy the opponent's desire to continue the fight”― Soke Behzad Ahmadi & Denise Itchikawa
Now we’ve at least identified the problem and perhaps two potential areas where a solution might be found. But that one clear solution we seek seems to evade our grasp. Again: what can be done in an ill-matched contest to even the odds? Finally, it hits you––we’re fighting in the wrong ring. We need to redefine the terms and conditions of the contest. Now once you’ve altered and adjusted the way the match is carried out, the match can proceed fairly and with each side having a decent chance of winning. Picking the right ring––that’s really the first, and most important, decision, isn’t it?
“Rhythm is everything in boxing. Every move you make starts with your heart, and that’s in rhythm or you’re in trouble. Your rhythm should set the pace of the fight. If it does, then you penetrate your opponent’s rhythm. You make him fight your fight, and that’s what boxing is all about.”― Sugar Ray Robinson, Sugar Ray
Which brings us to the subject of a contested law case. Two sides diametrically opposed. Before you undertake the battle, the question you first need to ask––what ring am I about to fight in? If you haven’t picked a valid legal theory supported by readily provable facts, you’re in the wrong ring. “If you don’t have a competitive advantage, don’t compete.” --Jack Welch Indeed, the law itself should seek to encourage equitable results in instances where one side has significantly greater power. There’s actually an immense body of legal literature addressing this very subject. In fact, in recent years, this may be said in some way to be the subject when discussing any particular area of the law.
“Simplicity matters. Especially when it comes to the muscle memory of boxing. That is perhaps rule number one. Simplicity works. Simplicity is repetition. Repetition is function. Boil function down to one action, maybe two. Left or right. Simplicity. Simplicity is really the hardest thing.” -- Brian D'Ambrosio, Rasta in the Ring: The Life of Rastafarian Boxer Livingstone Bramble
And, finally, in this context, to consider Nietzsche’s attack on an entirely mechanistic view of cause and effect: “Two successive states, the one “cause,” the other “effect”: this is false. The first has nothing to effect, the second has been effected by nothing. It is a question of a struggle between two elements of unequal power: a new arrangement of forces is achieved according to the measure of power of each of them. The second condition is something fundamentally different from the first (not its effect): the essential thing is that the factions in struggle emerge with different quanta of power.” –Friedrich Nietzsche, The Will to Power (Vintage 1968)(Pg. 337)(Trans. Walter Kaufmann and R.J. Hollingdale).