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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.) |
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