These fundamental discussions are still valid after the retirement in 2009, when the focus of activities shifted from consulting to large academic publication projects.
An area such as consultancy, focused as it is on practice, is nowadays reliant on having a theoretical basis. The generation and management of knowledge is only “academic” in the widest sense – in the sense of “applied research”. The fact that the “expert knowledge” being referred to here can also be treated as having a profoundly academic focus as part of “basic research” is not of any consequence here.
Take the “international practice of law”, for example where the basic parameters governing the way laws are drafted, applied and enforced have undergone substantial change, as have the parameters governing the closely allied field of legal consultancy work. Important characteristics are e.g. aspects of increasing legalization, “informationalization”, the spread of interdisciplinary activities, professionalization, specialization, market orientation, proceduralization, institutionalization and organization as well as the “tendency towards Americanization”. At present, this multi-causal and multi-dimensional development is not being adequately conceptionalized and considered on a more theoretical level, and as a result, people are not adapting quickly enough or in appropriate ways. The fact that we are registering a more rapid development phase only makes conceptualization more of a challenge — it doesn’t remove the need for it. In this type of phase, when change is occurring, there is a great and urgent need to acquire and disseminate the knowledge required simply to understand the change as well as to redefine and reposition the various fields of relevant specialist knowledge.
The generation of expert knowledge in the sphere of the professions: by professionals for professionals
By the concept of expert knowledge we mean acquiring and disseminating specialist knowledge which is “state of the art” and generated according to “best practices”, in order to guarantee that specific specialist knowledge as applied in the real world is comparable, compatible an interoperable. It is about generating, managing and especially about disseminating and organizing the application of specialist knowledge, for example in the field of the “international practice of law”. Our work with this preliminary concept is mainly geared towards applying this knowledge within the framework of interdisciplinary, integrative and international consulting activities, primarily on a strategic level. The point is to create the preconditions for, to promote and organize the application of the activities of professionals that draw on this expert knowledge and who are engaged in this type of consultancy work within the intellect industry. This expert knowledge is the professionals’ main resource, and is on the whole generated, in our view, by the professionals themselves. Exposed to change and competition and focused on practical application as they are, they are in a position to recognize new needs sooner than the universities, which tend to come into contact with and have knowledge of these realities only after a certain delay.
This new and specific focus on generating this type of expert knowledge will show that, against all expectation, a theoretical discussion of these issues is even more essential in times of rapid change than during periods of social and political calm. As a result, it will also become clear that this kind of professionalism involves the person concerned carrying out their own realistic analysis of the factors accompanying such change, which generally pre-supposes a change-oriented shift in the professionals’ mind-set. Here, we are venturing into a little-explored borderline area arising from the fact that insufficient theoretical knowledge is generated which is application-oriented, and that there is too little practical application of knowledge under altered conditions — and we believe that the importance of this field has been underestimated. There is also a lot of confusion in this area as to whose job it is to generate, disseminate and organize this knowledge to ensure its usefulness to consultants. Obviously, new networks will have to be created by people who have changed their assessment of their professional role as well as having a newly defined, shared view of the necessity of generating such expert knowledge. The relationship between “theory” and “practice”, which is in part weighed down with prejudice, will need to be revised in the area of Strategy & Law, selected areas of the generation of expert knowledge.
Selected areas for the generation of expert knowledge – by professionals for professionals
There follows an unsystematic list of possible areas in which generating expert knowledge may become relevant for my future work. Because strategic legal advice has to do with application and practical matters, most of the examples are drawn (in the widest sense) from the “law” and “lawyer” and “international practice of law” function and relate to providing timely, appropriate and fairly priced legal consultancy services in this field.
– Developing the strategic dimensions of law and the role of strategic legal advice as such requires the generation of relevant expert knowledge, taking a variety of consultancy disciplines and sociological fields of knowledge into account. This is something I shall be spending substantial amounts of time on in the next few months. This generation of expert knowledge can itself be provided as a service.
– The development of new ways of generating such expert knowledge, as well as organizing the way it is generated; overseeing, moderating, facilitating as well as presenting and disseminating this expert knowledge and capturing it in a variety of media: all this can also be provided as a service, which would, incidentally, be seen as “strategic legal advice” under the heading of “law” and “lawyers”. I have had the opportunity to be involved as a consultant in a variety of innovative projects related to knowledge generation and dissemination and organized by the Rüschlikon Center for Global Dialogue at Swiss Re. These dealt with new ways of organizing the generation of expert knowledge within the framework of applied research projects, working jointly with the Program of International Finance at Harvard Law School, and in a key area of interest to the company; with organizing structured, moderated and facilitated non-public expert discussions in the field of information policy, involving a limited group selected on the basis of quality and overseen, as it were, by representatives from the Kennedy School of Government at Harvard University; and with organizing non-public meetings of invited experts on the theme of “The Future of the Financial System of the 21st Century: from a European and American Perspective”. My wish-list still includes a similar meeting of experts on the subject of “The Future of Law”.
– I am currently involved in establishing a specialist network designed to make it easier to select experts as well as provide coaching for experts in a variety of disciplines — experts who, on the basis of shared understanding, are prepared to provide expert knowledge on a strategic level in interdisciplinary, integrative and international legal advice sessions as well as working with others on a brief in an ad-hoc manner.
– The necessity of clarifying the relationship and indeed interrelationship between law and communications in a virtualized world where the media rule requires the generation of expert knowledge on an interdisciplinary level. This is the only way to understand the issues of this new reality, to determine suitable methods of “issue management” on an issue-by-issue basis, as it were, and apply these methods to consultancy work in an appropriate, timely and fairly-priced way by drawing on this expert knowledge.
– Traditionally, theories dealing with service companies have followed the pattern set by industrial firms; this includes especially those theories relating to law firms, which were initially based on general ideas about service companies. This is a field where the need to generate expert knowledge is particularly great, whether on issues of organization, the structuring of the law, the formulation of strategy, the use of IT systems and human resources and the devising of services suitable for the market. In this area, there is a great need for expert knowledge which will have to be newly created, though some of it can be generated as a service within the framework of consultancy sessions. These questions also arise in a similar and interrelated way when it comes to law firms and the legal departments of corporations. Law firms and legal departments have now come to realize that they cannot side-step the new expert knowledge constantly being generated within the domain of professional service firms, and that the main insights apply to them as to others — albeit amended depending on the issues and only in the case of organizations above a certain size.
– In the race to catch up when it comes to generating expert knowledge in order to deal with the paradigmatic change in the field of service companies run by professionals, business schools have turned subjects like “Professional Service Firms” into majors, while law schools have done the same with subjects like “Legal Professions”. The expert knowledge being generated as a result can be put to practical use by experts and in some cases by consultants, e.g. law firms and other professional service firms.
– The role of lawyers as experts offering advice within companies and externally has itself become the subject of academic and professional debate, which in turn requires the generation of expert knowledge concerning the role of such experts. This is another area for research and a field in which consultancy services can be provided.
Expert knowledge in the sphere of the professions – No-man’s-land between teaching and practice
But there is another reason why generating the necessary expert knowledge in the field of law, lawyers and the international practice of law, is a neglected area. This is because lawyers working for law firms generally don’t have the time or are unwilling to take the time, and lawyers working in academia don’t generally consider these to be academic issues. As a result, there is a dangerous and widening gap in our knowledge in this “no-man’s-land”, and because of the growing delay, and unless we define some basic positions, it is becoming ever more difficult to close, given the speed of change. Generating expert knowledge in the field of law, lawyers, and the international practice of law, needs to be given a higher priority among professionals, professional service firms and the academic institutions and disciplines working in this area. This is especially true in interdisciplinary, integrative and international consultancy field, which is necessarily linked to the former, notably with a view to improving the appropriate, timely and fairly priced use of this knowledge. The question whether this knowledge should be considered as “theory” or “practice” is pointless and should no longer hamper or delay the exploration of this area of overlap. Alfred North Whitehead’s motto on the relationship between the faculty and the students, in the context of academic teaching when it comes to how “activity” relates to “knowledge”, can also be applied – ceteris paribus – to the relationship between “activity” and “knowledge” when it comes to consultancy services which are based on expert knowledge (“knowledge”) as well as being integrative and interdisciplinary (“activity”):
“What the faculty have to cultivate is activity in the presence of knowledge. What the students have to learn is activity in the presence of knowledge.
This discussion rejects the doctrine that students should first learn passively, and then, having learned, should apply knowledge. It is a psychological error. In the process of learning there should be present, in some sense or other, a subordinate activity of application. In fact, the applications are part of the knowledge. For the very meaning of the things known is wrapped up in their relationship beyond themselves. This unapplied knowledge is knowledge shorn of its meaning.
The careful shielding of a university from the activities of the world around us is the best way to chill interest and to defeat progress. Celibacy does not suit a university. It must make itself with action”
Alfred North Whitehead (1947)
(Jens Drolshammer, “Internationalialisierung der Rechtsausbildung und Forschung – eine Agenda für die interdicsiplinär ausgerichtete Ausbildung zum in Wirtschaft und Management tätigen International Lawyer” in Beiheft zur Zeitschrift für schweizerisches Recht, Basel/Genf/München 2000, p. 29ff, p. 212 f. ).