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Strategy and Law | Expert Knowledge

The development of expert knowledge can be viewed as belonging to the field of "Applied Research", in which it is often the consultancy requirement that determines the corresponding expert knowledge to be generated.

In addition, it is also possible for expert knowledge to be developed in the context of general research projects. Nevertheless, the strategic legal consultancy which is enriched by expert knowledge in this way is incorporated into a consultancy method of issue management orientated towards processes and issues, facilitating and supporting an integrative, international and interdisciplinary handling method within the relevant dimensions of problem solving.

One example: Law and Communication

One example of this kind of area of work for the generation of "expert knowledge" is provided by the interrelationship of law and communication, which has not been recognized or researched to any great degree, either from the point of view of legal science or from the point of view of communications science. There is a tremendous need in this field for this backlog of research to be carried out. The consequences of the increasing importance of the media and virtual technology on the origin, application and implementation of law represent a major problem in strategic legal consultancy. I have been providing extensive advice in this area for many years; cf. e.g. the series of slides available as a download "Unternehmenskommunikation in turbulenten Zeiten, Recht und Reputation, Paradigmenwechsel - Fallbeispiele mit Relevanz für den guten Ruf eines Unternehmens - Diagnosen und Therapien der Risiken und Chancen der Schnittstelle als Teil eines ganzheitlichen Corporate Reputation Managements" ("Corporate communication in turbulent times: law and reputation, a change of paradigm - case studies of relevance to corporate reputation - Diagnoses and treatments of the risks and opportunities of maintaining the interface as a part of a holistic approach to Corporate Reputation Management.").

Communication and Legal Cultures

In a globalized world, the interaction between legal cultures takes place mainly by means of communication. As the law and legal culture have now become a strategic success factor of any nation state and its legal system, the associated requirements in terms of "competitivity", compatibility and inter-operability demand the creation within the legal system of the actual preconditions for the capability for, and effective organization of, communication on the subject of law. This communication is a dimension that forms part of the territorial claim to validity of the law, without which the effectiveness of the law cannot be established or enhanced. What is necessary here is, inter alia, the representation of our own legal systems in other specialist languages, for example in English, and the institutionalization of a knowledge management system aimed at international communication and intended for all groups in the legal sphere that are involved in this communication.

Communication between Managers and Lawyers

In the field of tension that exists between communication and law there is a distortion that occurs, for example, in the interaction with American legal culture, and in the interaction in the sphere of law and management, this distortion being the result of an inadequate or false perception and understanding of the legal professional roles involved in communication. Distorted views of professional roles thus in part define, through their communication, the effectiveness of law and lawyers. This itself should also be a subject for the generation of "expert knowledge". It is our assumption that this underdeveloped understanding of the professional images of the law will make the integration, interdisciplinarity and internationality between lawyers and managers, and any co-operation with the corresponding role bearers, more difficult; indeed it often stands in direct opposition to this. In our view these gaps in understanding also become more evident as the reality of communication in the matter of the professional roles of the lawyer and the manager on both sides of the Atlantic become increasingly de-privatized, forming a constituent part of public, or publicized, opinion.

The Significance of Law for the Economy

In an area related to this lack of familiarity with the ways in which legal professional roles are perceived, namely the interrelationship of law and communication, the underlying fact that both managers as the functionaries of the business enterprise and those who communicate on the matter of legal cultures have an insufficiently developed understanding of the function the law has for the economy and society itself would itself appear to be a issue concerning the relationship between law and communication. The question of the underlying value of the law, and of the understanding of the value of the law, for business activities in a globalized world does not have an adequate number of communications advocates, and should in truth be placed at the center of the field of "knowledge", "ability" and "behavior" of international lawyers. The putting of the question requires at the very outset that the representatives of legal science view their self understanding for what is new, and communication in respect of what is new, as an integrated task of interrelatedness, interdisciplinarity and internationality as part of their professional lives. This would be a meaningful preliminary activity for an intrinsically necessary dialogue-based understanding between legal cultures and between professional cultures. In this area also, the effectiveness of law is essentially interrelated and interlinked with the associated communication.

The Lawyer as Communicator

The present-day interrelatedness of law and communication also requires the generation of corresponding "expert knowledge" on the education of the new "International Lawyer", and makes very specific demands on the communication abilities of such lawyers and their attitude to communication, since this must be included among the core competencies of any future education and continuing professional education of lawyers in this field. The paradigm change we have observed, by which the capabilities of the new "International Lawyer" have to include competence in behavior and action as well as competence in knowledge and understanding, and also competence in assessment and attitude, gives a special significance to the communicative competence of lawyers as part of their social competence. This significance is increased as a result of the internationalization competence that has recently become important because of globalization. In the issue of the education and further training of such lawyers, the lawyer essentially also becomes a communicator.

Law and Reputation

The most far-reaching aspect is the interrelatedness and interlinking of law and communication in the area of the protection of the reputation of persons and companies. The reputation is created and safeguarded, or placed at risk and destroyed, by the competition that exists between the different opinions forming the perceptions of third parties mainly against the background of information asymmetries. The measurement and evaluation of damage to reputation, in the case of publicly quoted companies, is direct and instantaneous. An investigation carried out by us has shown that a significant majority of reputation damaging events are associated with legal infringements, a number of which in turn are to a large extent significantly influenced by the way in which the legal infringements are handled. The presence of the media turns the legal presumption of innocence upside down into a media-generated presumption of guilt. Thus the addressing of the legal dimension of an issue (insofar as it relates to the company's reputation) is undertaken at a different time, specifically an earlier time, than the legal addressing of the issue in the technical sense, and this also touches on and prejudices, in a significant way, the preconditions for the later application and implementation of the law in the traditional and narrower sense, compare the slides Law and Reputation and Jens Drolshammer "Recht, Rechtsberufe und Rechtsreputation als Faktoren der internationalen Wettbewerbsfähigkeit der Schweiz - das "Legal Black Hole" der zugrunde liegenden Rechtskonzeption, 2007." (Law, legal professions and legal reputation as factors Switzerland's international competitivness - the "Legal black hole" of the underlying concept of law 2007).

Communication and Information as a Tool in the Legislative Process

The necessity of the generation of "expert knowledge" in this sphere is demonstrated by the organization of the substantive legal system itself; thus, for example, in the law of property and in company law the legislation uses public disclosure as a tool of its legislative purpose. The same applies in respect of the much more far-reaching duties of public disclosure in banking and stock exchange law. Substantive law also provides protection from information and communication. The separation of powers is supplemented by communicative control by the media. The legislation also provides the authorities responsible for applying the law, such as the banking commission and the competition commission, with a duty to inform that to some extent supplements and strengthens the application of the law, and to some extent destroys it or even replaces it. In many areas the legislation imposes duties of disclosure, the content of which disclosures, to some extent as a result of legal provisions, becomes public. The law also regulates communication. In addition, there are other legally protected rights, such as trademark rights or identification mark rights, the legitimacy of which is based on information and communication activities.

(Cf. Jens Drolshammer, Verlangt die Globalisierung eine Neuausrichtung der Forschung? - Beispiele von Forschungsfeldern im Bereich Recht und Management aus der Sicht eines International Lawyers.)
© Jens Drolshammer
Prof. Dr. iur., MCL, Rechtsanwalt
Jens Drolshammer, Prof. Dr. iur., MCL, Rechtsanwalt
CH-8044 Zürich, Susenbergstrasse 157
Tel. +41 44 363 81 11 · Fax +41 44 363 80 83 · E-Mail · Internet