Unexplored strategic dimensions of the law

In line with my theme, this is about exploring and establishing the strategic dimensions of the law by generating application-oriented, theoretical expertise, as well as developing this knowledge and putting it into operation in a type of legal consultancy work designed to supplement traditional legal advice. I call this "strategic legal advice".

Underlying motivation

Given my basic idea to embark on a third career, use the extra time to do more theoretical work in a congenial environment, and spend some of the rest of my time doing a different kind of consultancy work, the field of "Strategy and Law" is at very core of what has been new and different over the past few years, as far as the "compulsory elements" of my new professional direction are concerned. Initially, the main theme which will occupy me both in terms of time and substance is the development of the relevant expertise and of a method of providing the advice. Our hypothesis is that there is something just waiting to be discovered, if not invented, in this field. We believe that the paradigm shift, involving such characteristics as legalization, "informationalization", the spread of interdisciplinary activities, professionalization, specialization, market orientation, proceduralization, institutionalization and organization as well as the "tendency towards Americanization" of the practice of law has created an identifiable need in this area, since this shift has also triggered a considerable and manifest change in the strategic interpretation of law and lawyers, for example in the case of companies operating on an international level.

My enduring curiosity about strategy reflects an interest which originally grew up over a number of years, albeit not in connection with my work as a lawyer, but as a result of many years of working for the Chief of Staff, Operational Training (SCOS), for the Strategy Section, a body that advises the Chief of Staff (GSC) of the Swiss army, as well as being involved in the activities of the International Institute for Strategic Studies (IISS). As I explored strategy studies in these government areas, I noticed (with growing irritation) that law and lawyers were not being seen and used in line with the above-mentioned changes. The resulting lack of insight as well as the failure to operationalize, in strategic legal advice, the way in which this knowledge was applied, is evident e.g. in various theoretical fields. For example, the legal dimension is integrated in a less than optimal way into the business management theory of corporate models, into strategy studies as such, into the theory underpinning consultancy studies within management studies, and into the theoretical debate about the competitiveness of a given national economy (see "Does globalization require a reorientation of research?"). My attention was particularly caught by the existing perceptions of law and lawyers, which were skewing the conditions under which the strategic dimension of law could be effective as well as making it more difficult to achieve acceptance, understanding and action in these fields, to the point where even their significance was being fundamentally questioned.

In more than a quarter of a century working as a lawyer, I have observed an increasing shift in the area covered by integrative, inter-disciplinary and international legal consultancy work, as the Anglo-Saxon entrepreneurial concept of the law firm gains increasing acceptance within the Swiss culture of the lawyer. My own personal talent lies in dealing with complex issues, taking into account the law, communications, business management, history, psychology, politics and other relevant determining factors, and I found that the framework resulting from the growing importance of economic and technocratic factors was constricting in relation to part of my work as a lawyer.

Leadership role of law as a "multilevel and multidimensional chess game“

Over the coming years, I propose to generate the required expertise and to formulate and establish a method of providing relevant advice. Again, in terms of both knowledge and application, this is on the whole no-man's-land. The focus will be on an integrated, inter-disciplinary and international approach. Initial reflections and experiences have shown that we are talking about a "multidimensional chess game" coupled with a "multilevel chess game", which is played out within companies at the top levels of management and by the General Counsel. It's all about dealing creatively with the risks and opportunities arising out of the legal situation, which are of significance to the achievement of key corporate goals within the framework of the entrepreneurial process. On an operation level, an important area is integrated issue management as applied to the legal dimension, which takes account of aspects such as prevention, continuity and certainty of law, minimization of risks and maximization of opportunities, medium and long-term considerations taking into account all relevant factors which might influence, hamper or endanger the pursuit of these goals, or even render it impossible.

Circumstantial analysis and expert knowledge

One of the "themes" in the field of "Strategy and Law" is generating the required expert knowledge, which will guarantee that the technical knowledge relating to the strategic dimension of law which is brought to bear on a concrete application is actually capable of adaptation and integration. Given this working concept, what we are talking about here relates mainly to the practical application of this knowledge within the framework of the type of inter-disciplinary, integrative and international advice we are aiming to provide -- "strategic legal advice".

In a wider context, it is also about doing the groundwork, originating this expertise and organizing its application. Our working hypothesis is that this new and special focus on generating this kind of expert knowledge will show that, contrary to expectation, a theoretical debate is even more essential in times of rapid change than during periods of social and political calm. As a result, it will also become evident that professionalism involves, among other things, doing your own down-to-earth analysis of the environment within which change is taking place, which generally also requires a change-oriented shift in the mindset of the professionals and managers involved.

These are virtually unexplored borderlands arising from a failure to generate and implement application-oriented theoretical knowledge in changing circumstances, and in our experience, its significance has been underestimated. In the area of "Strategy and Law" as elsewhere, insufficient efforts are being made to generate the necessary expertise in relation to, for example, establishing "strategic legal consultancy", because lawyers working for law firms usually don't have the time or are unwilling to take the time, and lawyers working in academia generally don't consider these to be academic issues. Given that this is, as it were, "no-man's-land", there is a remarkable gap in our knowledge that needs to be closed. Incidentally, this is an important issue in terms of the distorted relationship between "theory" and "practice", where a multitude of positive and negative conflicts of competence have led to a situation where what is apparently most important and urgent is often not grasped and investigated more fully in a timely and appropriate fashion.

Methodological development and protection of the key business value: Reputation

Under the descriptive heading of "themes", the following subjects will be dealt with (among others). An initial task will be to identify the key factors in the paradigmatic shift that have reached or passed the threshold and intensity of strategic significance for companies operating on an international level. Following that, we will need to work out and formulate e.g. an "integrated risk management initiative", taking into account the determining strategic factors we have identified in the field of law. This could then be given more concrete form from an integrated and inter-disciplinary point of view, as applied to the fields of "safety and security risk", "business risk", "political risk", "legal risk", "reputation risk", "corporate governance risk" and what's known as "future risk". We need to create a mind-set and find methods which will allow us to recognize such risks at an early stage, remain able to act and shape events at all times as we deal with them, and establish an organization relating to governance and issue management, linked to an appropriate value system, which will above all permit and encourage an opportunity-related way of handling these risks. This means protecting reputation as a key value for any company operating on an international level, and doing it systematically and in a way that is sustainable, state-of-the-art and according to "best practice", to ensure that key corporate goals can be achieved with relatively little interference. At the forefront would be features such as preventive recourse to the legal dimension, an integrated use of the legal dimension and a long-term approach to the risk dimension.

Promoting acceptance of the method

For such a consultancy method to be successful, it needs to find acceptance and achieve compatibility and inter-operability, both as regards the method itself and the interdisciplinary professionals and managers involved in the consultation process. Acceptance begins in law firms and legal departments, taking in management and other professionals working in the integrative, interdisciplinary and international field, and may even extend to the universities. We will also have to take a systematic and interdisciplinary approach to dealing with the effects of other relevant dimensions on the work of lawyers, and the inclusion of the legal dimension into the advisory work of other consultancy firms, e.g. auditors, business consultants and communications consultants.

Giving a concrete shape to strategic legal advice

As "themes" are identified, the next step is to devise the concrete shape that "strategic legal advice" might take, i.e. "operationalizing" it. This includes proper structuring of any co-operation, developing innovative, specialist consultancy methods such as partnering, facilitation, mediation, brainstorming etc, coming up with tools to make it easier to apply the method, e.g. "legal balance score cards", "legal audits of strategic dimension", a software-based investigation to establish in-house and external perception of a company's reputation and the main players in relation to dealing with the strategic dimension of law, etc. Focusing on these themes, there is also a need to develop education, training and monitoring methods in this field which can be generally and repeatedly applied in a standardized format.

The themes will also include giving some thought to whether this field should be considered part of the science of law or the art of law, and what role the lawyer's imagination might play in the field of strategic legal advice, in the special sense of the maxim that "imagination is more powerful than knowledge" (Einstein).

No competition with legal practice

I don't propose to work on these themes in any strict chronological sequence, but rather simultaneously, within the framework of generating expertise and then in the course of the strategic legal consultancy work derived from it. It's likely that such expertise will continuously and simultaneously be identified and extended in the course of working on such mandates. I would like this to lead to an extension of the service package in the field of legal consultancy work, which does not enter into competition with the legal services relating to legal practice, rather supplementing them in a sensible and integrated way. However, what we are trying to achieve, and the method we are trying to develop, go beyond the services offered by lawyers, which are traditionally quite strictly laid down, and in some cases are actually presented as "products". It's likely that in studying this area, it will turn out that corporations are currently more advanced when it comes to recognizing and establishing the strategic dimension of law. In that sense, there is a need to stay within the connection, discussion and co-operation zone of "advocates" of the "law" dimension who are far removed from companies and at the same time to work with selected lawyers and law firms to include this dimension in an integrated way and within the framework of existing briefs. In those terms, this kind of legal consultancy service does not qualify as legal practice in the strict sense.

In the marginal field of "applied research", it might in due course also be possible to follow up some theoretical questions. The issue of the basic shortage of knowledge and research into the relationship between "strategy and law" may well present itself for serious investigation at a later date.

Compare Jens Drolshammer, Risk and Response, Zur Notwendigkeit eines strategischen Umgangs mit Catastrophic Risks in Grenzbereichen technologischer und wissenschafftlicher Entwicklungen ("Risk and Response: the Necessity of a Strategic Approach to Catastrophic Risk at the Margins of Technological and Scientific Developments").