Pictorial Law: Modern Law and the Power of Pictures

Pictorial Law Volker Boehme-Neßler Pictorial Law Modern Law and the Power of Pictures 1 3 Professor Dr. Dr. Volk...

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Pictorial Law

Volker Boehme-Neßler

Pictorial Law Modern Law and the Power of Pictures

1 3

Professor Dr. Dr. Volker Boehme-Neßler Derfflingerstraße 18 10785 Berlin [email protected]

To Julia and Thao in love.

Many thanks to Martina Birkhoff and Lindsay Gasser who translated the text from German. You did a great job!

Original German edition published by Springer Berlin Heidelberg 2009.

ISBN 978-3-642-11888-3 e-ISBN 978-3-642-11889-0 DOI 10.1007/978-3-642-11889-0 Springer Heidelberg Dordrecht London New York Library of Congress Control Number: 2010938030 © Springer-Verlag Berlin Heidelberg 2011 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH, Heidelberg Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Contents

1 C aught Between Technophilia and Technophobia: Culture, Technology and the Law �� 1 1.1 Interaction – Technology and Culture �� 1 1.1.1 Technology: The Product of Culture? �� 2 1.1.2 Culture: The Product of Technology? �� 4 1.2 Technological Imperative or Transformational Power of Law? �� 7 1.2.1 The Standard-Setting Power of Technology. How Technology Changes the Law �� 8 1.2.2 The Technical Force of Standard-Setting. How Laws Change Technology �� 10 Bibliography �� 15 2 C ultural Technology and the Law – The Example of Writing �� 19 2.1 Language as a Tool for Thinking �� 19 2.2 From Speaking to Writing �� 21 2.2.1 Societies Without Writing: Thinking Without Writing �� 21 2.2.2 Literate Societies: Thinking by Writing �� 24 2.3 Gutenberg – and his Effects �� 29 2.3.1 The Manuscript Culture: Single Copies of Books �� 29 2.3.2 Gutenberg’s Revolution: Books as a Mass Medium �� 30 2.3.3 Democracy Without Books? �� 31 2.4 Speak in Judgement or Write Laws – from Spoken to Written Law �� 32 2.4.1 The Rule of Law �� 33 2.4.2 The Idea of the Self – Equality and Subjective Rights Enter the Law �� 34 2.4.3 Written Sources of Law – and their Effects �� 36 2.4.4 Law Suits – Reduction of Scope and Clear Decisions �� 39 2.4.5 Written Law – An Ambivalent Heritage �� 41 Bibliography �� 44

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3 T he Power of Images �� 51 3.1 Pictorial Turn – From a Culture of Writing to a Culture of Pictures �� 51 3.2 The End of Writing? �� 53 3.3 What Is an Image – and What Does It Do? �� 54 3.4 Copy or Construct: How Are Images Received? �� 58 3.5 Images as Tools for Communication �� 59 3.5.1 Hurry, Hurry – The Speed of Visual Communication �� 59 3.5.2 Looking at Images – Visual Communication Is Concrete �� 60 3.5.3 I See – The Subjectivity of Visual Communication �� 62 3.5.4 Excursus: Collective Memory �� 63 3.5.5 Images Are Touching – The Emotionality of Visual Communication �� 64 3.5.6 What Is the Painter’s Message? The Ambiguity of Visual Communication �� 69 3.5.7 At a Glance – Conciseness of Visual Communication �� 72 3.6 One Image or a Thousand Words? – On the Superiority of Images �� 73 3.6.1 Dual Encoding. How Images Are Processed �� 73 3.6.2 Biological Basis: A Hierarchy of Senses �� 74 3.6.3 Images Are Better! Are Images Better? �� 75 3.6.4 Images: Communication Sans Frontieres? �� 76 3.7 Do All Images Lie? �� 77 3.7.1 Credibility of Images – An Illusion? �� 77 3.7.2 Photoshop & Co. – Image Manipulation in the Digital Age �� 79 3.7.3 Healthy Mistrust – On the Evaluation of Images in the Digital Era �� 81 3.8 Text and Images: Combine and Compete �� 82 3.8.1 Language Imagery – The Vividness of Language �� 83 3.8.2 Image Stories – The Narrative Skill of Images �� 85 3.8.3 Complementarity and Competition �� 86 3.9 The Anarchy of Images �� 88 3.9.1 Words Versus Images – Control or Freedom? �� 88 3.9.2 Law’s Scepticism About Images – A Reaction to the Anarchy of Images? �� 90 Bibliography �� 90 4 T he Law and Images – A Difficult Relationship�� 101 4.1 Where Have All the Images Gone? – Modern Law Without Images �� 101 4.1.1 Between Idolatry and Iconoclasm – Images in Society �� 101 4.1.2 Deeply Sceptical – Modern Law and Images �� 105 4.1.3 Sola Scriptura – The Logocentric Bias of Law �� 106 4.2 Symbols – Searching for Images in Law �� 107 4.2.1 Symbols �� 108

Contents

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4.2.2 Symbols in Law �� 109 4.2.3 Symbolic Law �� 112 4.3 Changing a Paradigm? – Images in Modern Law �� 115 4.4 The Strange View – Images of Justice �� 118 4.4.1 (Legal) Image and (Legal) Reality �� 118 4.4.2 Judge Joseph Wapner Says Hello �� 120 4.4.3 Public Opinion as Judge? The Law Under Pressure from Public Opinion �� 121 4.4.4 Lack of Confidence? When Justice Does Not Meet Expectations �� 124 4.5 Ability to Convince – Opportunities for Visual Legal Communication �� 126 4.5.1 Images as Eye-Catchers: More Attention on the Argument �� 126 4.5.2 Form Follows Function? Images in Judicial Forms of Language �� 127 4.5.3 Fast Law Is Good Law: Speeding up Legal Communication �� 129 4.5.4 No Point in Contradicting. The Imperative of Images �� 130 4.5.5 Can You Believe Images? Images as Evidence �� 131 4.6 Farewell Abstraction? �� 132 4.6.1 Abstraction in the Law – Importance and Limits �� 132 4.6.2 Taking Each Case on Its Merits – The Opposite of Abstraction �� 133 4.6.3 Faces and Stories – Making the Law Personal �� 134 4.7 Fear of Closeness? Emotions in Legal Communication �� 137 4.8 Disorderly Thinking? – Successivity and Associativity �� 138 Bibliography �� 139 5 F uzzy Communication: Composition and Performance of the Law �� 151 5.1 Fuzzy Control – How Can Visual (Legal) Communication Be Guided? �� 151 5.2 Performance and Composition – The Classical Means of Visual Communication �� 152 5.2.1 Painting, Graphics, Photography – How Are Images Composed? �� 153 5.2.2 Theatre, Film, Television – How Are Moving Images Performed? �� 154 5.2.3 Drama, Baby, Drama! – Visual Communication in Television �� 155 5.3 Image Sciences as Teacher – The Composition of Legal-Images �� 157 5.4 Applied Theatre Studies – Performing Legal Processes �� 158 5.4.1 Stage-Managing the Law – Why? �� 158 5.4.2 Being Serious and Authentic – The Performance of the Law�� 161

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5.4.3 Rituals – The Condensing of Performance �� 166 5.4.4 Legal Rituals – Performance and Emotion in the Law �� 171 5.5 On the Dangers of Performances �� 175 Bibliography �� 176 6 U nderstanding Images – The Interpretation of Visual Legal Communication �� 183 6.1 What’s to Be Done? – Overstretching Legal Dogmatics �� 183 6.2 Learning from Art History – What Can Images Tell Us? �� 184 6.3 Learning from the Theory of the Theatre – Interpretation of Moving Legal Images �� 186 6.3.1 How Should Moving Images Be Understood? �� 187 6.3.2 Performance Analysis – A New Method of Legal Interpretation �� 188 6.4 Not Chance, but Necessity – Cross-Border Interpretations �� 190 Bibliography �� 191 7 V isual Law – The Law as Drama? �� 193 7.1 Entertainment – Images in the Media �� 193 7.1.1 Overlaps – Image Logic and Tabloid Logic �� 193 7.1.2 The Show Must Go on – The Logic of Television �� 194 7.1.3 Between Enlightenment and Dumbing-Down – Opportunity and Risk of the Entertainment Paradigm �� 199 7.2 Politics as Drama – A (Dissuasive?) Example �� 200 7.2.1 Symbiosis – Politics and Television �� 201 7.2.2 Theatrification – Another Kind of Politics �� 204 7.2.3 Politainment: Less Democracy – Or More? �� 205 7.3 The Law as Entertainment? – The Logic of Entertainment and the Law �� 207 7.3.1 Hit the Ratings With the Law? �� 208 7.3.2 Speculation: Scandal and the Law �� 209 7.3.3 Limited Independence – The Law’s Media and Image Resistance �� 209 Bibliography �� 212 8 W ords and Images in the Law – Looking for the Lost Balance �� 217 8.1 Writing and Text: A Basis for the Legal System? �� 217 8.2 Images in the Law – Opportunities and Risks �� 218 8.3 Words and Images – Useful Complementarity and Mutual Reinforcement �� 219 8.4 Images or Not? The Law in a Dilemma �� 220 Bibliography �� 221 Index �� 223

Introduction: Pictorial Law in a World of Images

We are living in the age of the image. Images are present everywhere in today’s world. You don’t even need to watch TV, read a newspaper or surf the Internet. Hardly any area of society remains untouched by visualification and visual communications. Images are on the way to taking over from writing as the principal medium of cultural exchange. What side-effects does this have? This flood of images changes everything – perception, thinking and communication. Because even at the neuro-biological level we perceive and process images in a quite different way to words and text. Images – to mention just a few characteristics – have a much faster impact than words, they are much more emotional and direct. Anyone who is used to communicating with text and words has to re-learn how to think. Because visual communication follows different rules to communication using – spoken or written – words. Like all cultural shifts this flood of images triggers emotional reactions. Visual communication is greeted euphorically as progress – and it is demonised and feared as slipping back into an era of primitive and emotional thinking. So who is right – the optimists or the pessimists? That – of course – is hard to say. What is sure, however, is that the visualification of society – like all things in life – offers opportunities but also embodies risks. Anyone who wants to read a text-book which guarantees no images, graphics or visual overviews, has to pick up a legal text-book or commentary. So far the law is the one area of society which is fundamentally and very deeply sceptical about images and which is vehemently opposed to visualification. No need to be an oracle: the law will find it difficult to hold this hard line in future. The law and lawyers cannot detach themselves fundamentally and long-term from developments in society. They are far too tightly woven into the mesh of society for that. The first signs of visualification of modern law can already be discerned. What does it mean if the law, with its fixation on text, has to accept dealing with images – and actually does so? That is not just an academic question, for discussion in ivory towers. Because whatever happens in the law has very practical and very wide-ranging impacts on all areas of society and on people’s everyday lives. So: how does the invasion of images change the law and what does that mean for society? ix

Chapter 1

Caught Between Technophilia and Technophobia: Culture, Technology and the Law

New technologies change the world and make people react. When a new technology emerges and starts to spread – if you look at cultural history – it is both welcomed as visionary and feared as a threat to culture. Is this justified? Does technology really shape culture and society? Or is it actually the other way around: does technological development depend on the culture, politics and economics of a society? This either/or controversy has now more or less been settled. There are close mutual influences between technological and cultural developments within society. It is only once a certain level of cultural development has been reached, that certain technological processes which lead to innovations are enabled. And vice versa: developments in technology influence the politics, economics and culture of a society. What does this recognition mean for the law? As an important part of culture, the law is involved in this mutual influencing – simultaneously as both a subject and an object. It influences technological developments and at the same time is itself shaped by them.

1.1 Interaction – Technology and Culture There are multiple inter-dependencies between technology and culture. Technology occurs in a cultural context and is shaped by the culture. And vice versa: culture develops within a specific technological environment. Of course technology also has an impact on the culture of a society.

On the concept of technology from a sociological point of view Rammert (2006), P. 15 ff.; 47 ff. inter alia and from a philosophical perspective Rapp (1994), P. 19 ff. Schefe (2000), P. 234 f., and Ropohl (2003), P. 12 ff., who warns against both exaggerated technophilia as well as unfounded technophobia. Detailed and thorough on assessment and acceptance of technology Ropohl (2003), P. 59 ff., and Eigner/Kruse (2001), P. 101 ff. At length also Thompson/Selle (2000), P. 155 ff. inter alia. V. Boehme-Neßler, Pictorial Law, DOI 10.1007/978-3-642-11889-0_1, © Springer-Verlag Berlin Heidelberg 2011

1 Caught Between Technophilia and Technophobia: Culture, Technology and the Law

1.1.1 Technology: The Product of Culture? One frontier that technological advance fundamentally cannot cross is the laws of nature. But that is not the only boundary faced by technology. Technology does not exist in a vacuum. Technological and technical progress are embedded in political, social and cultural contexts. Because technology is created by creative social activity. Scientific and technological developments are promoted or held back by certain cultural, economic and political parameters. That is one of the reasons why innovative technologies are able to develop sooner and better in certain regions of the world than in other. Silicon Valley is the best-known example of this. The technical state of development of a society – its technology – is largely a result of its culture. The influence of the state, culture and society on technical development can be frequently observed in cultural and technical history. A striking example: around 1400 China was the most technically advanced civilisation in the world. This development, however, did not – as in Europe – lead to industrialisation. Roughly from the start of the Renaissance onwards technical progress slowed down and finally came to a halt.10 Why? The only plausible explanation is to look at the interaction of society and technology. In the final analysis the decisive factor was the over-bureaucratic state, which stifled scientific and technological progress.11 A similar phenomenon can be observed in Japan in the sixteenth and seventeenth centuries. In 1543 firearms reached Japan and revolutionised military technology.12 From about 1607 Japan began, for cultural and political reasons,13 to deliberately reject this advanced military technology.14 The Japanese military returned to using their traditional weapons – swords and lances – and to the old battle strategies. It was only in the mid-nineteenth century that fire-arms made a comeback in Japan thanks to the military influence of the British. This shows the (potential) strength of a culture: for centuries, culture and law were able to not only block (military) technical progress, but even to turn back the clock. The huge technological development in Japan since the end of the nineteenth century has also been the result of political and cultural influences. It was a deliberate and strategic national policy that made

Rapp (1994), P. 72. Somewhat differently Ropohl (1999a), P. 58 f. inter alia, who stresses that technology also means overcoming the constraints of natural laws. Dicken (1998), P. 146. Rammert (2006), P. 11 inter alia. On this Dicken (1998), P. 172 ff. inter alia. Argued very strongly by social constructivism. At length on this Rammert (2006), P. 24 ff. inter alia. Mokyr (1990), P. 209 ff. outlines China’s extremely advanced technology at that time. 10 Mokyr (1990), P. 218 f. 11 This is the seminal statement by Mokyr (1990), P. 232 ff. 12 Perrin (1996), P. 20 ff. 13 On the reasons in detail Perrin (1996), P. 60 ff. 14 In detail on this development Perrin (1996), P. 96 ff.

1.1 Interaction – Technology and Culture

Japan one of the leading industrial states in the world.15 Equally, in the development of Germany as an industrial state since the late eighteenth century the state’s influence in encouraging innovation played a major role.16 The state created new industries and accelerated technical development, not least through an educational policy which promoted technical skills.17 Nuclear energy was another state initiative and was developed and pushed forward using considerable state funding.18 To put it in a nutshell: state intervention has had a formative influence, visible today, on the development of engineering and technology.19 On the one hand, the state supports specific technical development using various instruments and strategies, quite often at great cost.20 An equally impressive but problematic example of this is military technology, which is often subsidised by states in the early stages of technical development for reasons of national security.21 As cynical as it may sound: security policy very often equals support for research and technology. At the same time, however, the state can hold back technological progress for a wide variety of political motives. In recent times the subsidy policy has moved up from national level to the European level: supporting or holding back technological development is an important policy area of the European Community.22 Not just the state and the law, but the economy also helps to shape technology. Economic parameters play a major role in technological advance and technical developments. This is something that both Karl Marx and Max Weber agreed on.23 Technical development also depends on market demand for goods and services.24 Industrial research in particular, which is an important driver for technical development, is subject to the logic of economics and is therefore very sensitive to economic influences. And finally, a further factor which can scarcely be over-estimated in the development of technology is the dominant philosophy of a society.25 Just one forceful example of this: And you shall have dominion over the Earth26 – This Judeo-Christian maxim engenders a particular attitude towards nature and encourages the development of specialist technologies.27 15

Castells (2001), P. 11 ff. Radkau (2008), P. 113 ff. 17 Details on this from Radkau (2008), P. 117 f. 18 At length on this Radkau (2008), P. 355 ff. 19 Mayntz (2001), P. 13 ff. inter alia; Rammert (2006), P. 25 f. 20 In detail on the opportunities and boundaries of state promotion of technologies Hilpert (2001), P. 74 ff. With empirical material. 21 On the detail Rammert disagrees (2006), P. 26, believing that the influence of the state and the military on technological development is over-stated. Empirical examples to support this theory are, however, not provided. 22 In detail on European research and technology policies Grande (2001), P. 368 ff. 23 Very tendentiously on this Rammert (2006), P. 25. 24 At length and sophistaicated Mayntz (2001), P. 11 ff. 25 Rammert (2006), P. 26 f. 26 Genesis 1, 28. 27 Very critically White (1967), P. 1203 ff. However justified the basic criticism may be: its global nature and single causality are definitely exaggerated. 16


So social, political, economic and cultural parameters all have a major influence on the development of technology. But this does not mean that technological advance is solely exogenously induced.28 Endogenous factors play an equally major role – factors which arise out of technology itself and its own (development) logic.29 New technologies also arise – more or less broadly – due to autonomous conditions, which are barely influenced by society.30 Cognition and invention are primarily driven endogenously and are scarcely influenced by exogenous factors.31 What scientists, engineers and technicians think in universities and research laboratories is on the whole not very dependent on cultural and social factors. But that changes in the later stages of technical development: innovation, diffusion and application of a new technology are more sensitive to exogenous influences.32

1.1.2 Culture: The Product of Technology? Saying that the State and culture both influence technology is, however, still not the whole story. The relationship between technology and culture is not one-sided, but a two-way affair.33 Technology is a core component of culture.34 The two are linked by a web of causes and effects.35 Because the technological and scientific circumstances of an age also shape its social structure and culture.36 These interactions are, however, very complex so that it is often unclear who influenced whom and how.37 Technology as such – it is often said – is neutral. It is not the technology, but people who decide whether a knife is a key domestic tool – or a dangerous 28

But Heilbroner sees it differently (1994a), P. 71 f., seeing technical progress as primarily exogenous, driven by the economy. 29 At length on the complex origins of technology Ropohl (1999), P. 296 ff. 30 Roßnagel (1993), P. 67. 31 Roßnagel (1993), P. 68 f., who does concede that even in these phases of technology external influences (can) exist. 32 Roßnagel (1993), P. 70 ff. 33 Thompson/Selle are very emphatic (2000), P. 156, talking of a “mesh of society and technology”. Unlike technological determinism, which stresses – too – one-sidedly the dependence of culture on technological advance. One spokesman for this is Ellul (1965), P. 79 ff. Norris is critical (2001), P. 106. 34 Rammert (2006), P. 12 ff. Shows how naturally – and often largely unnoticed – technology forms a part of (everyday) culture. 35 Roßnagel (1993), P. 75. And also Rosa (2005), P. 243 ff., who explains this using the example of acceleration. 36 Strange (1996), P. 7 ff.; Nye (2001), P. 1 f.; Spur (2001), P. 45; Rosa (2005), P. 247. 37 Rosa illustrates this (2005), P. 243 ff. This complexity is not found in strict technological determinism, which stresses the one-sided influence of technology on culture. A prominent defender of this approach is Ellul (1965), P. 133 f. and passim.

1.1 Interaction – Technology and Culture

weapon. Is this assumption really true? Of course not. Technology is not neutral.38 Even an approach which looks only at the technology shows how incorrect this assumption is. At most, only technically simple tools are neutral. The more the technology is specialised, the less neutral it becomes. The clearest examples of this are highly specialised weapon systems or sophisticated medical technologies, which are tailored exclusively to a very specific – so not the least bit neutral – function.39 If you view technology in a wider context, that clearly refutes the theory of neutrality. Technology both influences and changes infrastructures and logistics systems.40 Nor can social neutrality be asserted. Technology plays an important role in modern daily life, which it also (helps to) shape significantly.41 Society is extensively technified.42 But technology’s influence is even greater than this and reaches further than just the present: technological innovations are also significant drivers for social change.43 They create permanent change in the world we live in and reshape how people lead their lives in a lasting way.44 New technologies enable or simplify new, often unpredictable,45 social activities, products46, processes and organisations in all areas of society.47 Technology influences social behaviour and social processes, although with varying intensity and to different degrees.48 But the impact of engineering and technology on culture goes deeper still: technical innovations influence the way of thinking and the collective view of the world

38

Roßnagel (1993), P. 78. For criticism of the neutrality theory of technology in detail see Rapp (1994), P. 68 ff. 39 Rapp (1994), P. 68. 40 Rapp (1994), P. 68 f. Thoroughly on the influence of technology on the economy and economic order see Ellul (1965), P. 149 ff. 41 Stehr (2000), P. 85. 42 For a thorough and detailed view of the technification of society see Ropohl (1999), P. 183 ff. 43 Roßnagel (1993), P. 75; Mainzer (1995), P. 511, using the example of computers. Rapp (1994), P. 69, stresses correctly that you cannot talk about the social neutrality of technology. Eriksen (2001), P. 38 ff., notably illustrates this with the example of the mechanical clock, whose invention not only introduced time measurement but also time awareness, and changed the structures of society, thought and actions. 44 Spur (2001), P. 45. In detail about the impact of technology on lifestyle Eigner/Kruse (2001), P. 98 ff. 45 Eriksen (2001), P. 22, 74 ff., and Dommering (2006), P. 5 f. inter alia, who discusses concretely in this context the unexpected “revenge effects” of innovative technology. 46 In detail on the effects of technological advance on products and their lifecycle, Dicken (1998), P. 161 ff. 47 Similarly Dicken (1998), P. 145, although specifically related to economics. The impact of new technology on social organisation is shown by White (1968), P. 32 ff. using a small but telling example: The invention of the stirrup in the 7th Century revolutionised war techniques, organisation of fighting units and the social strata of society. Similarly wide-ranging impacts came from developments to the plough in the early Middle Ages. See White (1968), P. 39 ff. 48 Rammert (2006), P. 23 f.


of an age, as well as individuals’ feelings and thoughts.49 Telephones, automobiles, airplanes, antibiotics and contraceptives to name but a few, have initiated far-reaching processes of change in our culture and have clearly changed both social structures and societal behaviour.50 That is equally true of the stock-market ticker, which made the modern financial markets possible and which tore up and reshaped economic thought in many areas.51 Current examples through which we can trace the power of technology to change cultures are the new information and communication technologies52 and increasingly, bio-technology. The modified role of the nation state within the international system is barely comprehensible unless you take into account the cross-border nature of digital IC-Technologies.53 The power of technology to shape society can be seen clearly through the example of media technologies. Cultural anthropology and media theory can demonstrate that the media influence society, and quite often shape it. The pithy saying: “The Medium is the Message” from the Canadian media researcher Marshall McLuhan54 has become famous: it is not the content of the media which matters, what is far more important is the existence and form of the medium itself. The very existence of the medium causes widespread cultural, social and personal repercussions. Starting from this – empirically proven – assumption, you can divide cultural history into different cultural eras, each decisively shaped by their dominant communication media.55 To show this using a banal, but obvious example: the medium of television has, by its very existence, changed social behaviour, social relations and communications – quite independent of whatever the content of an individual television programme might happen to be. So should we conclude: technology drives everything; there are no other alternatives?56 Is technology the “prime mover”, which all other developments in society, 49

Mainzer (1995), P. 514 f. inter alia. On the social and cultural effects of new communication media in detail see Grunwald and others (2006), P. 47 ff. 50 Friedman (2002), P. 501. Dicken (1998), P. 145, describes technology clearly as the “great growling engine of change”. Similarly Roßnagel (1993), P. 75, who sees technical innovations as “perhaps the most important drivers of social change”. A very illuminating example of this is given by Eriksen (2001), P. 23: The later, very aphoristic and very terse style of Friedrich Nietzsche is often said to derive from the fact that in his later days Nietzsche used the newly invented “writing machine” (typewriter). 51 Preda (2006), P. 110 ff. 52 A notable example of the unexpected repercussions of IC-Technology is given by Dommering (2006), P. 6. On the cultural effects of computers see Mainzer (1995), P. 511 ff. inter alia. On the political effects of the “Information revolution” see Nye (2001), P. 8 ff. inter alia. Early on Weizenbaum (1976), P. 337 ff., was warning about the “imperialism of machine understanding”, whose driver is the advances in computer technology. 53 In detail see Boehme-Neßler (2009), P. 175 ff. 54 McLuhan (1992), P. 17. 55 Seminal and extensive on this is Innis (1951), P. 3 ff. A clear example is given by Mainzer (1995), P. 513. How new technologies influence culture is outlined by Grunwald and others (2006), P. 47 ff. inter alia. 56 Ellul argues strongly in this direction (1965), P. 133 f., and derives technical determinism from the autonomy of technology.

1.2 Technological Imperative or Transformational Power of Law?

politics and economics have to follow?57 Certainly not that either. The strong influence of technology on culture is not an argument for technological determinism.58 Of course technology does not determine society.59 Despite its very real power, technical progress does not automatically and inevitably change society. Despite all the technical factual constraints: there is room for manoeuvre by societal and political influences in the effect of new technologies.60 For whatever – increasingly unpredictable61 – effects technology may cause, will depend to a great extent on the usage that is made of it. Technology outcomes come – at least in part – from the ways in which technologies are implemented within the social and cultural environment.62

1.2 T echnological Imperative or Transformational Power of Law? It is not only between technology and culture that there are mutual influences. Because the law is an important part of any culture, there are of course also influences in both directions between technology and the law. Technology obviously has an impact on the law. Technical advances frequently bring considerable pressure to bear on the law to adjust. But this also applies the other way around. Of course the law influences technology and technological advance. The law is simultaneously an enabler and a limiting factor for technology. But can the law really steer technical developments in a certain direction or even with any accuracy? That is fairly doubtful.

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Stated clearly by Ellul (1965), P. 133 Roßnagel (1993), P. 75. Roßnagel (2005b), P. 27, refers to the fact that not every new technical advance actually has to be used. This is not totally unchallenged. Schelsky (1965), P. 453 ff. stresses the factual constraints of technology, to which everything else must yield. Eriksen (2001), P. 25 represents a moderate determinism. Similarly and earlier Heilbroner (1994), P. 54 ff. inter alia. On the phenomenon of factual constraints as such, Haar (2004), P. 139 ff. 59 Castells (2001), P. 5, who regards the problem of technological determinism as a false problem. 60 Very fundamentally on this see Roßnagel (1993), P. 267 ff., who correctly talks of the reshaping capability and reshaping necessity of technology via the law. But Schelsky sees it differently (1965), P. 455 ff., seeing the State as being compelled by technological factual constraints. He sees human actions playing only a minor role in technical-social developments. Ellul puts it even more strongly (1965), P. 133 ff. He regards technology as an autonomous power, which no human activity can now escape. Technology therefore determines everything, including the developments of society and culture. 61 On the limited predictability of technical impacts using the example of media technology see Leib (1998), P. 88 inter alia. 62 Beautifully concisely see Roßnagel (1993), P. 75 inter alia. 58


1.2.1 T he Standard-Setting Power of Technology. How Technology Changes the Law Technology is a major modernising factor. Technical innovations have a major ability to change the world.63 Obviously technical progress also impacts the legal system, which is an important part of the culture.64 Every major technical innovation leaves traces in the legal system of a society.65 Direct and indirect effects can be distinguished here.66 The direct effects are obvious: new technologies throw up new legal issues and create a need – real or assumed – for new regulation.67 Often completely new areas of law may be created. Technical safety law started to develop around 1831 in Prussia – as a reaction to the use of steam engines and the beginnings of industrialisation.68 A highly developed set of traffic laws only came into existence with the advent of the automobile.69 And data protection laws have grown up as a reaction to the development and rapid advances in new technologies – information and communication technology.70 How the ever smarter neuro-imaging technologies71 will modify the law is so far only a subject of (justifiable) speculation.72 Assuming that the possibilities it offers of visualising thoughts will not have any impact on the law is scarcely a tenable thesis.73

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Roßnagel (2007a), P. 18. Friedman (2002), P. 501. On the close interplay between law, culture and economy even in earlier times from an anthropological viewpoint Trimborn (1950), P. 135 ff. and Schott (1970), P. 114 ff. 65 Summers (1996), P. 66. Thoroughly on the technical consequences for society and law Roßnagel (1993), P. 74 ff. What consequences technology has on the organisation and form of the state is shown by Ellul (1965), P. 229 ff. with striking historical examples. This alone shows the theory of the neutrality of technology is wrong. On this thoroughly Rapp (1994), P. 68 ff. 66 Friedman (2002), P. 502, introduces this distinction. 67 A current burning issue is neuro-imaging which creates new legal issues, which are only just beginning to become evident today. On this Hüsing/Jäncke/Tag (2006), P. 195 ff. Other instructive examples from recent and current legal history are quoted by Summers (1996), P. 66 and Berg (1985), P. 401 f. 68 Berg (1985), P. 403, traces the beginning of technical safety laws back to a Prussian Cabinet Decree in January 1831, which dealt with the safety of steam machines. Details on this from Kloepfer (2002), P. 19 f. 69 Friedman (2002), P. 502. Instructive in this context is how the whole environment has adapted to the automobile. An expression of this activity is the phrase a car-friendly city. At length on this Radkau (2008), P. 343 ff. 70 Abel (2003), margin number 1 f. inter alia. The new imaging processes which enable brain scanning throw up critical data protection legal issues. At length on the whole problem area of data protection and neuro-imaging Hüsing/Jäncke/Tag (2006), P. 229 ff. 71 A systematic overview of the state of research from Hüsing/Jäncke/Tag (2006), P. 27 ff. inter alia 72 Seminal on this Mishler (2007), P. 26 ff. inter alia and Hüsing/Jäncke/Tag (2006), P. 195 ff. 73 Although Mishler stresses (2007), P. 36 that in the near future it will not yet be possible to make people’s thoughts and feelings visible using neuro-imaging. 64


Even more far-reaching and also more subtle are the indirect effects that technical innovations have on the law. Technical progress changes the way of thinking, the cultural references and social behaviour. That in turn impacts the legal approach74 and totally disparate, apparently unlinked, parts of the legal system. A good basic example of this: written law throughout its long history has always been recorded on solid media: clay tablets, stone, bronze, wood, papyrus, parchment or paper. Changes in the “technology of the medium” have always also had an influence on the writing and therefore on the form of legal thinking.75 Legal texts, for example, written in cuneiform on clay tablets, were of necessity short and to the point. The heavy and cumbersome tablets were not suitable for lengthy texts. The technological switch to papyrus made it possible to have longer texts – and so more complex laws. A modern example: the invention of anti-biotics directly brought about changes in pharmaceutical law. In addition, the very existence of this group of medicines also changed the law on compensation for injuries and the concept of the social state.76 Because medical advance had fundamentally changed the attitude of people towards their personal health and their expectations of the health system.77 To demonstrate this using a case which caused a furore: to see a child as harm78 resulting from ineffective contraception, is of course only possible if the use of contraception is normal, everyday practice. The invention of modern contraceptives has had equally wide-ranging effects in other areas. It has led to far-reaching changes in sexual morality in Western societies. That has eventually changed not just family law but also criminal law.79 The existence of a risk cannot be denied: technical power can represent a threat to the basic provisions and fundamental rights of the constitution. The development and application of technical systems can create pressure for change to which the law has to cede.80 In a democracy that is highly problematic: because important decisions in this area should not be taken by technical imperatives, but by democratically legitimised parliaments.81 Law and politics both need to be aware of the 74

Highly critical on the impact of technology-oriented thinking on legal thinking Summers (1996), P. 72 f. 75 At length on this Roßnagel (o. J.), P. 3 ff. with instructive examples. 76 Friedman (2002), P. 503. 77 Friedman (1989), P. 1584. Completely new, so far unresolved questions of law are currently being thrown up by advances in medical technology and gene technology. On this Roßnagel (2001), P. 197. 78 On this group of problems BGHZ (German Court of Appeal Civil Division) 124, 128 ff.; BVerfGE (Federal Constitutional Court Rulings) 88, 203 (295 f., 358); Federal Constitutional Court, NJW 1998, 519 ff. 79 Friedman (2002), P. 503. 80 Roßnagel (1989), P. 10. Similarly and earlier Schelsky (1965), P. 453 ff., who speaks of the Technological Imperative and Imperatives of a scientific-technical Civilisation. 81 BVerfGE (Federal Constitutional Court Rulings) 34, 165, 192 f.; 45, 400, 417 f.; 47, 46, 79 f.; standing jurisdiction. Roßnagel (1989), P. 14 stresses, that in practice this requires better information processes and an effective judgement of the consequences of technology.

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problems of technical imperatives and not forget their respective roles in providing guidance and control. Because if law and politics do not provide control and guidance, then technology will rule itself.82 But can the law and politics control and guide technology anyway?

1.2.2 T he Technical Force of Standard-Setting. How Laws Change Technology The relationship between the law and (technical) progress is ambivalent and never free of tension. On the one hand, the law is a great promoter of technical progress. Technical innovation is barely feasible without a legal framework and legal support. On the other hand, the law is often felt by engineers and technicians to be a barrier.83 Correctly so: standards not infrequently attempt to control the technical process of innovation or even to prevent some innovations. In short: technical laws have two main purposes: enabling technology and limiting technology.84 The law is there to serve technical progress. It also has a function of enabling technology and technological progress.85 The law frequently creates the conditions for technical progress. That is, of course, not a new aspect of the law. In about the nineteenth century the law unleashed social and economic forces on an unprecedented scale.86 In 1810 Prussia introduced freedom of trade.87 The old trade and guild privileges had gradually been removed since the late eighteenth century and replaced by official authorisations.88 This revolution in technical law bore fruit:89 fewer random decisions by administrations and more legal protection of rights. That made economic activity easier and drove fledgling industrialisation forwards. In this way the legal enfranchisement of the economy was an important pre-requisite for the amazingly rapid development of technology in Germany at that time.90 Overall, the second half of the nineteenth century was characterised by legal liberalisation throughout Central Europe, which met the needs of their

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Spinner (2002), P. 41 creates for this the useful phrase defining force of technology. Impressive examples from the early 20th century are given by Vec (2002), P. 117 ff. 84 At length on this Kloepfer (2002), P. 86 ff. 85 Schmidt-Preuß (2002), P. 177 inter alia; Roßnagel (2001), P. 198; Summers (1996), P. 66 f. 86 This development is outlined by Kloepfer (2002), P. 57 ff. inter alia. And earlier, seminally and at length Landes (1969), P. 197 ff. inter alia. 87 Kloepfer (2002), P. 57 inter alia. On the meaning of this measure Landes (1969), P. 197. 88 Kloepfer (2002), P. 18 f. inter alia. 89 So Kloepfer believes (2002), P. 18. 90 Kloepfer (2002), P. 17. 83


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rapidly developing industries.91 In brief: the law opened up the way for industrialisation to occur. But technology promotion by the law is not limited to liberalisation and breaking down bureaucratic barriers. Just as importantly: the law provides a reliable framework and ensures certainty for forward planning.92 It protects technology and helps it to win social acceptance.93 Liability legislation and legal safety requirements also work to enable technology – although they can potentially also work in the opposite direction, to limit it.94 The same is true of patent law. It protects the inventor and provides certainty.95 Overall the right to intellectual property is an important element controlling the speed of development or prevention of – technical and other – innovation. That can be stated in slogan form in the statement: no legal stability means no investment, no investment means no technology.96 But modern law can – and must – go much further. Modern industrial societies are subject to a permanent drive to modernise, and rely desperately on technical innovation.97 This increases the demands on the law in its role as a promoter of technology. For the law, therefore, promoting technology also means actively putting in place incentives for creative and innovative behaviour. A whole slew of legal instruments exists for this, which are already being used – if hesitantly at first. Two fundamental strategies can be observed here. On the one hand, the law creates space for creativity and research initiatives. Expressions of this are fundamental rights such as freedom of research, freedom of choice of profession or job, and freedom to own goods.98 Another example: the actual organisational form of the scientific establishment is a factor which can promote – or can hamper innovation and progress.99 Quite frequently the law also actually creates a market which then economically drives the development of innovations. Current examples of this are telecommunications laws and environmental laws.100 Simultaneously, it rewards innovation and protects technical innovations from legal risks.101 That is done partly through patent law and product liability laws.

91

Details on this Landes (1969), P. 197 ff., and ibid, P. 199, where he talks in summary of “reciprocal adaptation of the law and industrial capitalism”. 92 Schmidt-Preuß (2002), P. 178. 93 Schmidt-Preuß (2002), P. 180. 94 Kloepfer (2002), P. 83 inter alia. 95 Hoffmann-Riem (2007), P. 389, who points out that patent law not only promotes innovation but also limits it. 96 Schmidt-Preuß (2002), P. 180. 97 Hoffmann-Riem (2007), P. 392. 98 Roßnagel (2007a), P. 13. 99 At length on the legal organisation with relation to innovation of the German scientific system Trute (1998), P. 216 ff. inter alia. 100 Roßnagel (2007a), P. 14, who talks of “Market shaping by administration”. 101 Roßnagel (2007a), P. 13 f.

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The law as promoter of technology and innovation – does that describe its role fully? Definitely not. In a modern constitutional state, technology does not exist in a legal vacuum. It has to conform to constitutional principles102 and it has to be socially acceptable. The law is required to control technology along these lines. It has to help to manage the risks and results of technical innovations.103 That also includes, in specific cases, restricting technology. But is the law actually in a position to do so? In the realm of controlling technology the law has to wrestle with two main obstacles. A law is created in the present. But it has to work not just in the present, but also in the future.104 It has to be able to deal with uncertainty and unknowns. Because technology developments and their consequences are very difficult to forecast. The law is called upon to regulate technologies which do not even exist yet.105 So some uncertainty always remains, on the basis of which the law has to develop regulations.106 The second problem is the speed of technical innovation.107 Technical innovation happens a lot more quickly than new legal rules.108 The legislator (almost)109 always is limping along behind the technical inventor and developer.110 So they have to develop methods and instruments which enable them to keep pace with technical development.111

102 The concept of the constitutionality of technology was coined by Roßnagel (1984), P. 14 and he defined it more closely in numerous publications. On the necessity and the possibilities of shaping technology to fit with the constitution Roßnagel (1989a), P. 177 ff. 103 Roßnagel (2007a), P. 16. 104 On this problem area Appel (2004), P. 329 inter alia, who, ibid, P. 352 f. talks ominously of a Futurisation of the law. 105 Roßnagel (2001), P. 206. Appel (2004), P. 330 ff. Shows that the key legal concept which the law uses to tackle this problem is that of prevention. 106 Thoroughly on various methods for avoiding uncertainty, Appel (2004), P. 336 ff. 107 Berg (1985), P. 401 inter alia. 108 Spinner (2002), P. 15, stresses the “highly dynamic, accelerating development, which seems to be unstoppable.” 109 The cause of this lies with the inner logic of technical creation. The first phases of technical development – cognition and invention – are scarcely or not at all – influenced by external factors, such as the law. At length on this Roßnagel (1993), P. 68 ff. 110 Scherzberg (2002), P. 122 reduces this to the statement: the law is fundamentally always “catching up”. This problem is heightened by a recent development. Basic scientific concepts and issues and technological/practical applications are ever more tightly intertwined. The rate of technical innovation is increasing quite considerably – yet again - in the area of “technoscience”. On this Bora (2006), P. 32 inter alia. Vec (2002), P. 1133 talks in this context of a “cultural lag” in the theory of law, but explicitly excludes practice of law from his diagnosis of a time-lag. 111 How difficult this is is explained by Bora (2006), P. 34 ff. Using the example of recent, participative procedures in technical assessment. Generally on this, how the law deals with unknowns, imprecision and uncertainty, Scherzberg (2002), P. 124 ff. inter alia.


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That the law is not able to determine technological development in the classic cybernetic sense, is obvious.112 Technology is created through a highly complex process, which involves not just science and commerce, but also political forces and a mix of other disparate social groups. Such developments are far too eclectic and complex to be able to be steered in a particular direction, or fully controlled and managed, by such a limited mechanism as the law.113 So should the law just shrug and walk away resignedly? Whatever is technically possible will be done, sooner or later.114 That is the technological imperative in today’s world. But is it really an imperative? Are humans really helpless in the face of the process of technical development, which marches on oblivious? Definitely not. The technological imperative is not – quasi scientifically – imperative. It takes effect when it is allowed to take effect. The law can fundamentally act against this. Because what is possible is for the law to choose technologies and shape technologies.115 Which implies having controlling effects on technical development. The law can make choices from among a number of alternative technologies and in so doing can shape future technical developments.116 This can – and must – involve other criteria than purely technical ones – such as constitutional, political or economic issues.117 Examples for this control of technology by technology selection118 are, for example, the retreat from atomic energy in Germany119 or a decision in favour of a climate-friendly energy supply.120 A historic example is that of Japan in the seventeenth century, when the already-imported military technology of firearms was deliberately rejected and there was a return to the use of traditional weapons for several more centuries.121

112

Roßnagel (1993), P. 27 inter alia. Similarly also Spinner (2002), P. 40. Roßnagel (1993), P. 27 inter alia. In the 19th century there was still widespread belief in the cybernetic ability of the law to control technology. At length on this Kloepfer (2002), P. 82 inter alia. Although at that time both the technological structures and the social processes were clearly less complex than today. 114 Similarly Ellul (1965), P. 79 ff., who talks about an “Automatism of Technical Choice”. 115 Roßnagel (1993), P. 27, who in ibid, P. 256 ff. inter alia, explains in detail. 116 Roßnagel (1993), P. 256. 117 Not least public procurement rules can be used to shape technology. By pinpointing awards of contracts the state can promote specific technologies in a focussed way. At length on this BoehmeNeßler (2006), P. 1257 ff. 118 Roßnagel coined both this phrase and this concept(1993), P. 27, 256 ff. inter alia 119 Schmidt-Preuß (2002), P. 187. On the details of the “Nuclear power phase-out law” Roßnagel (2007), P. 156 ff. inter alia. 120 On this much earlier Roßnagel (1993), P. 259 ff. inter alia. 121 Details on this striking story from Perrin (1996), P. 96 ff., also ibid, P. 123 ff. where he describes a further example for a deliberate choice to influence technology by technology selection. 113

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But the law has a second lever it can use to direct technology: the option of having a definitive say on the form of any given technology.122 What does that mean in practice? Legal requirements are transcribed into detailed “safety philosophies” or “requirements”, which the technology has to apply in practice. There are plenty of examples of this.123 The basic right to view your own data and the principle of strict need-to-know for data storage have left many traces in IC-technology.124 Alongside these direct influences on technical development, indirect influences of the law can be observed. An example from environmental law: the requirements that the waste disposal laws placed on the waste processing industry have shaped the development of waste disposal technologies. The idea of a recycling society125 was injected by the law into the process of waste-related technical developments and has influenced the form of modern waste technologies. And liability law can push technical developments in a particular direction. The classic example of this is product liability law.126 Because liability law creates, increases or reduces risks for both the developer and the user of technology, it influences behaviour. Because risk avoidance is an important aspect in the development and implementation of technical innovations. The ultimate case of control of technology is the ban. The law can in fact substantially hinder the development of new technologies.127 Bans are sometimes used when, for example, national security, public interest or the environment are under threat.128 A current and very telling example is the ban on cloning in Europe.129 In practice, complete bans of a given technology are very rare.130 Whether new technologies can actually be suppressed by bans is open to doubt. The history of science – apart from some rare, temporary cases131 – throws up no single example of a longterm and lasting prevention of technological progress.132 122

Roßnagel (1993), P. 267, who goes into technology’s need of guidance and its ability to guide. Using the practical example of the data-protection law’s principle of relevance to purpose in Electronic Government Roßnagel/Laue (2007), P. 548 f., outline how technology could be guided by law, and how it should be. 123 Examples from recent US IT-law are provided and analysed by Kesan/Shah (2005), P. 332 ff. inter alia 124 Thus quite correctly Groß (2004), P. 416 f. inter alia. 125 Kloepfer (2004), P. 1722, talks correctly of a change of paradigm to an effective and resource saving circulation and supply chain economy which the law has successfully accomplished. 126 At length on this Kesan/Shah (2005), P. 351 ff. inter alia. 127 Roßnagel (1993), P. 245 f. Talks in this context about restrictive guidance of technology. Kloepfer (2002), P. 86 believes that the limitation of technology – as well as enabling of technology – is a prime function of technical law. That the law can actually prevent technical development is something he vehemently doubts, however, ibid, P. 99 f. 128 At length on this Kesan/Shah (2005), P. 328 inter alia. 129 On the details Kloepfer (2004), P. 1590 inter alia. An example from American law is given by Summers (1996), P. 66. 130 Kloepfer (2002), P. 96. A thorough critique of technology legal bans by Kesan/Shah (2005), P. 328 ff. inter alia. 131 Perrin (1996), P. 96 ff. and P. 123 ff., sets out two striking examples. 132 Similarly Roßnagel (1993), P. 245 and Kloepfer (2002), P. 99 f.

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Rosa, Hartmut (2005): Beschleunigung. Die Veränderung der Zeitstruktur in der Moderne. Frankfurt am Main. Roßnagel, Alexander (1983): Bedroht die Kernenergie unsere Freiheit? 2nd Edition Munich. Roßnagel, Alexander (1984): Radioaktiver Zerfall der Grundrechte? Munich. Roßnagel, Alexander (1989): Technik und Recht – Wer beeinflusst wen?, in: Alexander Roßnagel (Ed.): Freiheit im Griff. Informationsgesellschaft und Grundgesetz. Stuttgart, P. 9 ff. Roßnagel, Alexander (1989a): Möglichkeiten verfassungsverträglicher Technikgestaltung, in: Alexander Roßnagel (Ed.): Freiheit im Griff. Informationsgesellschaft und Grundgesetz. Stuttgart, P. 177 ff. Roßnagel, Alexander (1993): Rechtswissenschaftliche Technikfolgenforschung. Umrisse einer Forschungsdisziplin. Baden-Baden. Roßnagel, Alexander (2001): Rechtswissenschaft, in: Günter Ropohl (Ed.): Erträge der interdisziplinären Technikforschung. Eine Bilanz nach 20 Jahren. Berlin, P. 195 ff. Roßnagel, Alexander (2005b): Modernisierung des Datenschutzrechts für eine Welt allgegenwärtiger Datenverarbeitung, in: Multimedia und Recht 2, P. 71 ff. Roßnagel, Alexander (2007): Atomausstieg und Restlaufzeiten, in: Andreas Hänlein/Alexander Roßnagel (Ed.): Wirtschaftsverfassung in Deutschland und Europa. Festschrift für Bernhard Nagel. Kassel, P. 155ff. Roßnagel, Alexander (2007a): Innovation als Gegenstand der Rechtswissenschaft, in: Hagen Hof/ Ulrich Wengenroth (Ed.): Innovationsforschung. Ansätze, Methoden, Grenzen und Perspektiven. Hamburg, P. 9 ff. Roßnagel, Alexander (o.J.): Papier - die unbekannte Grundlage unserer Rechtsordnung. Unpublished manuscript. Roßnagel, Alexander/Laue, Philip (2007): Zweckbindung im Electronic Government, in: Die Öffentliche Verwaltung, P. 543 ff. Sandermann, Wilhelm (1997): Papier. Eine Kulturgeschichte. 3rd Edition Berlin/New York. Schefe, Peter (2000): Kulturelle Wirkungen computergestützter Medien, in: Kubicek, Herbert u.a. (Ed.): Global @home. Heidelberg, P. 234 ff. Schelsky, Helmut (1965): Der Mensch in der wissenschaftlichen Zivilisation, in: Helmut Schelsky: Auf der Suche nach Wirklichkeit. Gesammelte Aufsätze. Düsseldorf/Cologne, P. 439 ff. Scherzberg, Arno (2002): Wissen, Nichtwissen und Ungewissheit im Recht, in: Christoph Engel/Jost Halfmann/Martin Schulte (Ed.): Wissen - Nichtwissen - Unsicheres Wissen. BadenBaden, P. 113 ff. Schmidt-Preuß, Matthias (2002): Technikermöglichung durch Recht, in: Michael Kloepfer (Ed.): Kommunikation - Technik - Recht. Kommunikationsrecht in der Technikgeschichte. Berlin, P. 175 ff. Schott, Rüdiger (1970): Die Funktionen des Rechts in primitiven Gesellschaften, in: Jahrbuch für Rechtssoziologie 1, P. 107-174. Schulze-Fielitz, Helmuth (1998): Instrumente der Innovationssteuerung durch Öffentliches Recht - insbesondere im Umweltrecht, in: Wolfgang Hoffmann-Riem/Jens-Peter Schneider (Ed.): Rechtswissenschaftliche Innovationsforschung. Grundlagen, Forschungsansätze, Gegenstandsbereiche. Baden-Baden, P. 291 ff. Spinner, Helmut F. (2002): Von der wissensgeleiteten Techniksteuerung zum technologischen Wissensregime, in: Michael Kloepfer (Ed.): Kommunikation - Technik - Recht. Kommunikationsrecht in der Technikgeschichte. Berlin, P. 11 ff. Spur, Günter (2001): Zum Selbstverständnis der Technikwissenschaften, in: Günter Ropohl (Ed.): Erträge der interdisziplinären Technikforschung. Eine Bilanz nach 20 Jahren. Berlin, P. 43 ff. Stehr, Nico (2000): Deciphering Information Technologies. Modern Societies as Networks, in: European Journal of Social Theory 3, P. 83 ff. Strange, Susan (1996): The Retreat of the State. The Diffusion of Power in the World Economy. Cambridge. Summers, Robert P. (1996): Technology, Law and Values, in: Frank Fleerackers/Evert van Leeuwen/Bert van Roermund (Ed.): Law, Life and the Images of Man. Commemorative Publication for Jan M. Broekmann. Berlin, P. 65 ff.

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Teubner, Gunther (1989): Recht als autopoietisches System. Frankfurt am Main. Thompson, Michael/Selle, Per (2000): Doing Technology (and Democracy) the Pack-Donkey’s Way: The Technomorphic Approach to ICT Policy, in: Engel, Christoph/Keller, Kenneth H., Understanding the impact of global networks on local social political and cultural values. Baden-Baden, P. 155 ff. Trimborn, Hermann (1950): Die Privatrache und der Eingriff des Staates, in: Deutsche Landesreferate zum III. Internationalen Kongress für Rechtsvergleichung in London, P. 133 ff. Trute, Hans-Heinrich (1998): Innovationssteuerung im Wissenschaftsrecht, in: Wolfgang Hoffmann-Riem/Jens-Peter Schneider (Ed.): Rechtswissenschaftliche Innovationsforschung. Grundlagen, Forschungsansätze, Gegenstandsbereiche. Baden-Baden, P. 208 ff. Vec, Milos (2002): Technik oder Recht? Steuerungsansprüche in der Zweiten Industriellen Revolution, in: Michael Kloepfer (Ed.): Kommunikation – Technik – Recht. Kommunikationsrecht in der Technikgeschichte. Berlin, P. 111 ff. Weizenbaum, Joseph (1976): Computer Power and Human Reason. From Judgment to Calculation. New York. White, Lynn (1967): The Historical Roots of our Ecological Crisis, in: Science 155, P. 1203 ff. White, Lynn (1968): Die mittelalterliche Technik und der Wandel der Gesellschaft. Munich.

Chapter 2

Cultural Technology and the Law – The Example of Writing

It is not just technology in general that influences the law. The technologies that shape the culture of an era have a particular impact on its legal system. Jurisprudence and the law change when new culturally-related technologies appear and change communication patterns. The seeds of modern law which arose from the changeover from oral to written societies is an important example. It is worth taking a closer look at this.

2.1 Language as a Tool for Thinking What is language? Language is a lot more than just a grammatical, linguistic or literary phenomenon. It is first and foremost a system of words and codes. But language is more than this: it is also a social institution. Language embodies content and rules which are mandatory for its users. It provides those who speak it with a vocabulary and a grammar, which they are obliged to use when speaking. Otherwise they will not be understood and they will not understand their communication partner. Going way above and beyond this, language is also the means through which people understand the world. It is an important – perhaps the most important – tool for thinking: cognition and awareness definitely depend on language ability.

At length on language Saussure (1967), P. 9 ff.; Pinker (2000), P. 1 ff. inter alia Seminal Saussure (1967), P. 83 ff. Thinking in more recent theory of cognition goes much further. According to this the reality is as structured by language and this makes it recognisable to people. That could even mean that human language is a form of adaptation to the linguistic structure of the world. On this Küppers (2008), P. 37 ff. Durkheim (1973), P. 119. Berghaus (1986), P. 282. Gadamer (1960/1990), P. 387 ff. at length on “Language as a medium of hermeneutic experience”. At length and exploring further on this Küppers (2008), P. 36 ff. At length on this Boroditsky (2001), P. 18 ff, Boroditsky (2003), P. 917 ff. and Jäger (2001), P. 23 ff. Earlier also Halbwachs (1985/1925), P. 89, 107. Rorty (1968), P. 1 ff. Therefore demanded a linguistic turn and carried it out logically in his philosophy.

V. Boehme-Neßler, Pictorial Law, DOI 10.1007/978-3-642-11889-0_2, © Springer-Verlag Berlin Heidelberg 2011

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2 Cultural Technology and the Law – The Example of Writing

This is empirically supported by numerous biological development studies. Language shapes the world view of both the individual and the society. This is shown particularly clearly through the example of metaphors: these automatically evoke specific images and ideas. So anyone using a metaphor is not just working with a word or a concept; they are using an evocative image which influences further thought. This can be proven by a current example: legal discussion about the Internet is flavoured by the metaphor of “Cyberspace as a place”. This evokes the concept of a space which is limited and which can and must be divided up. From this flow automatically certain legal concepts for managing cyberspace.10 The view which a culture has of the world does not just come from objective facts about the world itself, but also from the linguistic system – the language – of that culture. This principle of linguistic relativity11 can be reduced down to the statement: grammar shapes thought.12 How someone sees the world does not just depend on the world, but also on the language in which they think – this idea is not new. It already showed up in the linguistic philosophical writings of Wilhelm von Humboldt, who talks about a “reverse impact of language on the mind”.13 Wittgenstein’s dictum has become famous: “Philosophy is the struggle against the bewitchment of our intellect by means of language”.14 So language can bewitch intellect; but at the same time it is also – as the medium of philosophy and thought – a weapon in the struggle against this bewitchment. There is no better way to illustrate the ambivalence and importance of language for thought. So can one conclude from this that thinking is totally determined by language? The – controversial – school of linguistic determinism does in fact go that far.15 Even if one cannot follow their thesis to this absolute conclusion: language is not just one of the most important means of integration that holds a society together.16 Language as a means of control or – to put it more forcefully – as an instrument of compulsion, is the most important social institution of all.17

On this Eibl-Eibesfeldt (1997), P. 734 ff. inter alia. Whorf (1963), P. 11 f. For empirical studies which support this theory, Messaris (1994), P. 119 f. inter alia. On the influence of metaphors on thought in general Boroditsky (2001), P. 6 ff. 10 Very instructive on this Hunter (2003), P. 472 ff. inter alia. 11 Whorf (1963), P. 12. 12 Whorf (1963), P. 11. For an updated, varied and empirically supported version of the “SapirWhorf-hypothesis” Boroditsky (2003), P. 917 ff. and Kay/Kempton (1984), P. 65 ff. But very critical of it Pinker (1996), P. 67 ff. inter alia. 13 Humboldt (1822), P. 65 and at greater length Humboldt (1829), P. 121 ff. 14 Wittgenstein(1953), § 109. 15 Critical about this Pinker (1996), P. 71 ff. inter alia; Oksaar (1989), P. 213 ff. inter alia; Wandruszka (1979), P. 12 f., 44 f. But Boroditsky (2003), P. 917 ff. and Kay/Kempton (1984), P. 65 ff., defend a modified form of this theory. 16 Berghaus (1986), P. 283. 17 Very decisively Berghaus (1986), P. 283.

2.2 From Speaking to Writing

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2.2 From Speaking to Writing In the history of human development speaking is much older than writing. It shaped the whole of society – thought, culture, politics and the economy. Oral societies have some typical characteristics. When writing developed18, it had a huge effect. In literate societies communication and thought work differently. Culture, politics and trade function differently than they do in oral societies.

2.2.1 Societies Without Writing: Thinking Without Writing Oral societies, or those without writing, do not have any documents.19 They are naturally shaped by speech. All the knowledge of an oral culture is stored as memories20 and transmitted and improved through narration.21 The knowledge and the culture of an age is stored in the memories of singers and story-tellers.22 A significant feature of oral cultures therefore is their redundancy.23 Because oral expression is fleeting. It disappears in the instant in which it is spoken. To be remembered, it must be repeated many times.24 Without repetition, cultural transmission breaks down. Because, unlike in a literate culture, knowledge cannot be saved once and for all by writing it down. Rituals25, festivals, myths26 and other multimedia performances therefore have supreme significance as examples and methods of storing knowledge.27 Oral

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Writing evolved, it was not invented. On this Stetter (2008), P. 121. Thus Ong (f1982), P. 33, and Havelock (1986), P. 65. Ehlich (1998), P. 33. comes to a different conclusion. But he is starting from the wider linguistic concept of text – text as a unit of the communication signals exchanged during a communicative interaction. 20 Elwert (1987), P. 244. On this also Klaffke (1998), 222, who reduces it to the statement: “A library dies with each old person”. 21 On this at length Ong (1982), P. 137 ff. Elwert (1987), P. 244 ff. describes the efficient and extensive social organisation, which is necessary for this. Fried (1995), P. 273 ff. Argues the theory, that writing history in oral societies is therefore always misshaping and distorting, even falsifying. But Althoff disagrees (2003), P. 108 ff. inter alia. 22 Wenzel (2003a), P. 375, who refers to this as “body memories”. Informative on the “recording” of history in oral societies Althoff (2003), P. 107 ff. 23 Ong (1982), P. 39 ff. 24 Ashman (2000), P. 98 stresses, that repetition is a structural necessity in oral cultures. Similarly Havelock (1990), P. 74 f. On the need for repetition to retain the content from a psychological viewpoint go back as far as Freud (1962), P. 309 f. 25 Schechner (2006), P. 52, defines rituals as “collective memories encoded into actions”. 26 Elwert (1987), P. 245; Havelock (1986), P. 70 stress the meaning of ritual repetitions for persisting information in oral cultures. 27 On this Assmann (2000), P. 56 ff., and Glinga (1989), P. 92 f. In memory based cultures the hands played an important role as sign-makers and communication instruments. On this Wenzel (2003), P. 27 ff. 19

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literature – particularly poetry28 – also fulfils an important function here: it is an “encyclopaedia in verse form”29, which stores the knowledge and the cultural standards of the time. A famous example of this is Homer’s epics which were created in Greece before the development of the Greek alphabet – and only written down later.30 This enforced repetition31 impacts cultural thinking. To a large extent it encourages a traditionalist and conservative way of thought and culture.32 Or to extrapolate: the power of the transmitted knowledge totally precludes any updating of social or legal rules.33 Because diversification and innovation become problems when content cannot be pinned down in writing. Innovation always means forgetting old ideas.34 And forgetting, in cultures whose very existence depends on memory, is a potential catastrophe.35 Innovation is therefore rare in oral societies.36 Oral societies are as a result very strictly conforming societies, shaped by very rigid rules.37 Redundant oral communication generally leads – despite permanent re-interpretation of what is said38 – to conformity, and prevents individualistic or alternative ways of living. Oral – conservative and traditionalist – societies are therefore39 rarely confronted with the far-reaching conflicts that arise from technological or social change.40 Deep conflicts which challenge the authorities or the traditional values hardly ever occur.41 In societies without writing scepticism, criticism, contradiction and disbelief do indeed exist. But the way they are expressed is quickly

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Havelock (1986), P. 71 stresses the importance of poetry as a decisive instrument in storing and passing down cultural information. 29 Havelock (1986), P. 29 talks about a “versified encyclopaedia”. 30 Havelock (1986), P. 29. Goody/Watt (1981), P. 71 date the time of first written records to about 750 to 650 BC. Thorough on oral literature Glinga (1989), P. 93 f. 31 Assmann (2000), P. 89. 32 Ong (1982), P. 41. Goody/Watt (1981), P. 48 stress that because of the high degree of redundancy the language itself only develops slowly. 33 Schott (1990), P. 311 inter alia. 34 Assmann (2000), P. 98. 35 On the “Catastrophe of forgetting” Jan Assmann (1993), P. 337. Although forgetting does have basic important and positive functions– for the individual and for the society. Seminal on this Halb wachs (1985/1925), P. 71 f. and pass., who develops the paradigm of collective memory – and of collective forgetting. Glinga (1989), P. 91 talks in this context of a collective filter, which forgetting would represent. This can be illustrated with a concrete example. Data protection is perhaps an example of ensuring the necessary function of forgetting. 36 Goody (1990), P. 204. 37 Schott (1990), P. 311. Elwert (1987), P. 260, therefore also sees a gain of freedom in the development of a written culture. 38 On this Schott (1968), P. 197 f. inter alia, and Fried (1995), P. 273 ff. inter alia. 39 Of course there is also cultural change in oral societies. It takes place, however, more slowly than in the ancient or modern main cultures. The consistency of oral societies is therefore clearly greater. On this Schott (1968), P. 168 inter alia. 40 Katsh (1989), P. 63. 41 Therefore in simple oral societies clearly political institutions and bodies to settle disagreements are hardly necessary. On this Schott (1990), P. 312.


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“stamped out” in each generation. And “stamping out” and forgetting is easy in oral cultures. This has an effect not only on communication, but also on thought.42 Societies without writing think differently: their thinking is less abstract, more concrete, relates to specific (conversational) situations which can be grasped personally.43 Oral culture has – this is another characteristic – no abstract, analytical categories which permit the structuring of their entire knowledge.44 Knowledge is organised via concrete, immediate, personal experience and individual social situations.45 That is a result of mnemotechnical necessity.46 Concrete and personalised content, which can ideally be passed on in the form of stories47, is easier to remember than abstractions and causal relationships. Therefore oral cultures also have a very image-rich and plastic language.48 This has an effect on the world view of an oral society. For example, it is evident in the explanation of natural phenomena. They cannot – unlike in modern societies – be explained by abstract rules and causal relationships. So how can they be understood – and borne? Cultures without writing work with concrete, personalised narratives to explain the creation of the world and the workings of nature.49 Spoken language and thinking which is based on it are – again as the result of mnemotechnical imperatives – dominated by images and emotions.50 Objectivity and critical distance are hard to find.51 People in oral societies have no self-judgement or self-awareness. A person in an oral culture does not know about ego or

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Seminal to thinking in oral societies Lévi-Strauss (1973), who coined the phrase “wild thought” for this. 43 Ong (1982), P. 49 ff. even maintains that oral thought is fundamentally not abstract. Whether that is correct is however, much disputed. Lévi-Strauss (1973), P. 11 ff. contradicts it very clearly and gives a whole host of examples, which support the ability of “wild thought” for abstraction. 44 Ong (1982), P. 38 f. 45 According to Ong (1982), P. 42, oral thought is “close to the human lifeworld”. 46 Havelock (1990), P. 114. At length on the connection between memory performance and language Ong (1982), P. 59 ff. A wide-spread mnemo-technique known at least since antiquity is the spatial imagining of the content to be recalled. At length on the ancient ars memorativa and the memory metaphors based on space in the literature Aleida Assmann (1993), P. 14 ff. 47 Narrative Texts can be better remembered and generate interest more quickly in listeners than non-narrative. Oral cultures tend therefore heavily towards passing on content in the form of stories. At length on this Havelock (1986), P. 75 f. 48 On the meaning of (language-)images as mnemonics Wandhoff (2003), P. 51 ff. inter alia using the example or the ancient ars memorativa and the mediaeval conjointure. As Aleida Assmann (1993), P. 14 ff. inter alia shows, the linguistic images were retained in the written literature and developed further. 49 Havelock (1990), P. 114, who sees the origin in the myths dominated by gods and godlike creatures. Because without superhuman – divine – abilities it was not possible to describe and understand natural phenomena as the result of human actions by people. On this also Ong (1982), P. 69 ff. 50 Ong (1982), P. 43 ff. Sees the oral stories being dominated by battles, suffering and scarcity. 51 Ong (1982), P. 45 f.

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souls or self.52 That changes dramatically with the development of writing. Writing – unlike speech – separates the writer from what is written. This changes the focus of perception. Now the creator becomes visible alongside what was stated/written. A person is no longer one and the same thing as their statements, and is able to look at themselves. That is the beginning of the concept of self and self-awareness.53 One cannot conclude from these characteristics that oral cultures are primitive cultures or not even cultures at all.54 Quite the opposite: oral or pre-literate55 societies have delivered advanced artefacts of culture and civilisation.56 Peoples without writing are peoples without history. This was treated as a given fact for a long time by philosophy and cultural ethnology.57 Voluminous empirical studies have since shown that it was baseless prejudice. Oral cultures are also aware of their history and hand it down, just in other forms than in literate societies.58 A striking example of this is ancient Greek culture before the introduction of the Greek alphabet.59 Oral cultures are – and this should be stressed here – neither better nor worse than literate cultures. They are different.60

2.2.2 Literate Societies: Thinking by Writing Recently there has been an extensive re-evaluation of archaeological and cultural historical data. As a result, the earliest start of written human culture61 is now dated back to about 7000 BC.62 This point in time marked a shift in epochs, with

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Havelock (1986), P. 113. Also Lurija (1976), P. 144 ff., on the basis of anthropological fieldwork. 53 On this theory of the “Alliance of writing and soul” Assmann/Assmann (1990), P. 19 f. 54 Havelock (1990), P. 39 f., 78 ff. 55 On this Havelock (1990), P. 39 ff. 56 On this Lévi-Strauss (1978), P. 293 f. with examples from cultural history. Particularly the theory that only literate cultures became capable of logical thought, is not scientifically proven. At length on this Goody (1987), P. 219 f. and Lévi-Strauss (1973), P. 308. Goody/Watt (1981), P. 104 show decisively, that also in modern literate societies non-logical thinking is widespread. Therefore also the dichotomy between primitive, non-logical and civilised, logical thinking is misplaced. 57 Schott (1968), P. 166 inter alia provides an overview of the spread of this theory. 58 Schott argues this strongly (1968), P. 171 ff., supporting this view with a large number of observations from fieldwork. 59 On the high cultural standard of the oral Greek culture Havelock (1986), P. 79 ff. inter alia. 60 In linguistics a comparable discussion is running. Traditional linguistics concentrates on the language; writing plays only a secondary role for it. In newer linguistics the strict separation between language and writing is lifted – and with it the primacy of language over writing. At length on this Harris (2005), P. 61 ff. inter alia. 61 On the concept of writing from a scientific angle Weingarten (1989), P. 16. 62 Haarmann (1991), P. 18.


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fundamental changes in thought, culture and law.63 Literate societies are fundamentally different to oral ones.64 The transition from orally-shaped culture to written language was of revolutionary importance for culture, society and law. The changes in the culture set in motion due to written language were in turn accelerated and modified by the invention of book printing – the Gutenberg revolution.65 Writing is a centralised and highly efficient cultural memory store.66 It is – to exaggerate somewhat – a medium of immortality.67 This has far-reaching consequences for communication and thought, not all of them positive68: the acquisition of writing is not without cost.69 Unlike in oral societies, communication is no longer only imaginable in concrete narrative and communication situations.70 Thinking can be freed from its attachment to concrete contexts and individual cases. So it becomes more abstract, more objective,71 and loses its emotion.72 Of course literature 63

Havelock (1990), P. 71. But Haarmann (1991), P. 14 f. warns against over-estimating the importance of writing for the advance of civilisation. Major cultural highpoints were and are also possible without writing. Gough (1981), P. 125 ff. is similarly reticent on the effects of (alphabetic) writing using the example of China and India, and Gough (1981a), P. 220 ff. inter alia. 64 Thoroughly on the consequences of literacy Goody/Watt (1981), P. 45 ff. inter alia The difference is described but not judged in what follows Whether writing is better than oral communication is debatable. Wenzel (2003a), P. 375 f. outlines the intense discussion about the advantages and disadvantages of writing, which took place in the 12th and 13th centuries, when writing spread significantly within Europe. So it is not certain whether literacy is a later and more valuable stage of development of a culture. On this Glinga (1989), P. 91 ff. 65 Comprehensive and seminal on this McLuhan (1995), P. 193 ff.; Giesecke (1991), P. 63 ff. Eisenstein (1979), P. 43 ff. inter alia, and passim. In any case this a Europe-centric point of view. Because printing of books was invented and in use much earlier in China and Korea. On this Giesecke (1991), P. 127 ff. inter alia. 66 A. Assmann (2001), P. 205, talks about the “Preservative effect of writing”. Oral societies without writing do also have – this has been revealed by the “Oral poetry research” – methods for storing knowledge and therefore a cultural memory. Rites and festivals are of particular importance here. On this Havelock (1990), P. 78 ff.; Ong (1982), P. 33 ff. 67 Thus Aleida Assmann (1999), P. 181. 68 The critique by Plato about writing is famous, in Phaidros, 275a: Writing weakens the memory and leads people into forgetfulness. That is, however, only a part of the criticism, which Plato issues about writing. At length on Plato’s critique of writing Brumlik (2006), P. 50 ff. At length on the history of the critique of writing Laermann (1990), P. 121 ff. inter alia. 69 Türcke (2005), P. 123. 70 Havelock (1986), P. 101, who provides examples to explain this in depth from ancient Greece. On spoken language being bound to the situation, thoroughly Klein (1985), P. 19 ff. 71 On the objectification of language through writing Klein (1985), P. 30 ff. 72 On this Havelock (1990), P. 71 f. using the example of the ancient Greek alphabet. Unlike Havelock’s opinion, other forms of writing created the ability of abstraction in ancient times.. Assmann/Assmann (1990), P. 8 f. correctly stress this with reference to the ancient oriental forms of writing. Similarly also Goody (1987), P. 219 inter alia. Precisely the de-emotionalising of communication via the dominance of writing is however severely criticised over and over again. Even Plato, Phaidros (2006), 275 d, criticises the “dead knowledge” that writing passes on. Rousseau later argues similarly. On this Laermann (1990), P. 124 ff.

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also changes quite noticeably. Because the rhythm of rhymes is no longer needed as an aid to memory, prose can develop as a new literary form – with major consequences for literature and philosophy.73 Writing creates distance.74 This is not only true for the relationship between humans and the situation being communicated. Writing also creates distance between people, perception and thought. Therefore it enables people, for the first time, to reflect critically about themselves. The development of (critical) self-awareness is therefore almost unthinkable without writing. This can be extrapolated: the discovery of the soul only became possible thanks to people gaining distance from themselves thanks to writing.75 The development of a written culture also had economic consequences. A written economy is fundamentally different from a spoken economy. Anthropology and archaeology have figured out just how closely writing and economy were related for example in ancient times. In some early cultures it was craftsmen and merchants who invented writing.76 An example of this is the advanced Sumerian culture. Around 2900 BC cuneiform script was developed and for the first few centuries used only for economic reports.77 The vast majority of the Sumerian cuneiform scripts excavated so far deal with economic topics.78 A high volume of complex trade processes drove the invention of the script. Because it was only with written documents that precise control was possible of the endless and endlessly complicated flows of trade goods which were produced and circulated.79 And vice versa: a clear written language, effective book-keeping, and an effective monetary system combined, in Mesopotamia around 3300 BC, to give a clear impetus to the development of the economic system.80 There are many historic examples for this interaction.81 Societies without writing, of course, also have trade and economic 73

Havelock (1986), P. 110. Ong (1982), P. 102. Assmann/Assmann (1990), P. 25 draw on Aristotle and talk about the “withdrawal from the world” of writing. 75 The cultural anthropologists Aleida and Jan Assmann see the development of writing being even the pre-condition for people developing the concept of a soul. In their view writing and soul go together: Assmann/Assmann (1990), P. 19. Similarly Illich/Sanders (1988), P. 83, who even see that as a “construct resulting from the alphabet”. 76 Havelock (1990), P. 81 inter alia, who refers to the example of ancient Greece. But the situation was different, for example in ancient Egypt. Assmann (2000), P. 169 stresses, that there the written culture grew up, not in commerce, but in the area of politics and administration. Also Schenkel (1998), P. 61 f. 77 Sandermann (1997), P. 14. 78 Sandermann (1997), P. 15. An impressive exception is the Gilgamesch-epic. 79 A large number of earlier, now archaeologically well-researched documents are trade and business books. On this Goody (1990), P. 109 ff. inter alia; Leroi-Gourhan (1988), P. 324. 80 At length on this Goody (1990), P. 94 ff. inter alia; Elwert (1987), P. 256 f. Kienast (1994), P. 13 stresses, that the cuneiform script was invented in order to provide an effective instrument for the state (economic) administration. The causal link between the material incorporation of writing - clay – and the concrete configuration of cuneiform is pointed out by Roßnagel (undated), P. 1. 81 Gough (1981a), P. 223, describes this link using an example of a kingdom in Kerala in the 17th century. 74


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activities. But analysis of economic systems in the oral societies which still exist today shows one thing clearly: it is only writing that enables complex and varied economic systems.82 Ancient oriental forms of writing, in particular, were developed as instruments of political presence and administration for large territories.83 Their documents were mainly laws, decrees, acts, rituals and donations for sacrifices. A written approach has a fundamental advantage over an oral one for the day-to-day workings of politics and bureaucracy. Writing is not just an aid to memory. Writing also confers authority84 and turns any rapid utterance into a visible, permanent, powerful pronouncement. That is the performative function of writing.85 Literacy has furthermore proven to be an invaluable instrument in day-to-day administration. Written instructions work better for day-to-day administration. A verbal instruction within a conversation can be misunderstood.86 Written instructions are permanent and act as a reminder to carry them out. And there was a further advantage in writing for administrations: written documents and records made administrative actions visible to non-participants, even at a later date. Administrative actions thereby became independent of the memory of the individual person involved in the case. Writing is particularly important for the principle of individual responsibility. Written documents record who “signs up” to responsibility for which decisions and actions.87 Without written documentation, areas of responsibility become blurred. The importance of writing for internal chains of command in an administration is just as great. Using written instructions, you can reach many more addressees with the same effort than when using verbal communication.88 In addition, there is a further efficiency factor: in a chain of verbal messages the identity of the originator of a particular instruction easily gets lost. Written instructions, with an official signature, prevent this happening. 82

Goody (1990), P. 146, shows via the examples of oral economic activity in Africa the limits of an economy without writing. The backwardness of modern Arabic states can also be ascribed in part to the religio-cultural imposition of a preference for spoken language over written. The mistrust of the book has been shown from a historical perspective to be a strong brake on modernisation. At length on this Diner (2005), P. 107 ff. inter alia. 83 Assmann/Assmann (1990), P. 13 inter alia Assmann (2000), P. 169 ff. Proves this at length using the example of Egyptian hieroglyphs. On this also Sandermann (1997), P. 36 and Roßnagel (undated), P. 3 f. 84 Instructive on this is the story that Lévi-Strauss (1978), P. 292 f. tells: in a non-written culture of certain aboriginal tribes writing is not used as a means for information. This is not possible because the members of the tribe cannot use writing. They use written texts as a symbol, to stress the importance of what was said and the impact of the occasion. 85 Assmann (1994), P. 62. That of course does not mean that societies with little or no writing did not have any forms of authority or power. At length on power without written norms, based on mediaeval examples Althoff (1997), P. 285 ff. inter alia. 86 Menne-Haritz (2000), P. 5. 87 Menne-Haritz (2000), P. 5. Initially this was seen quite differently. Plato for example sees writing – in contrast to spoken words – as a non-serious game, which is not linked to any transfer of authority. See Plato, Phaidros (2006), 276 b ff. 88 Elwert (1987), P. 256 f.

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In addition, it is much easier to check whether things were done using written instructions.89 This is because the fixed written instruction is an unambiguous and durable point of comparison, against which execution can be measured. Orders which were received verbally, on the other hand, lose clarity with time and get muddled, until they are completely forgotten. They are therefore less suitable as a long-term benchmark. If writing is the control medium, it in turn fosters a particular form of management organisation: monocratic administration.90 Monocratic administrations use mainly written instructions. And vice versa: written instructions stabilise and promote monocratic forms of decision-making in administrations. The preference of monocratic administrations for writing as the form of supervision and control is for one simple reason. Monocratic administrations are very dependent on instructions being passed down a strict hierarchy with a long chain of command and not getting lost or forgotten. That is easier to achieve using written directives than with verbal instructions. What effects the development of a written culture has on the political system of a society is less simple to determine.91 Writing is an instrument of power. Writing organises, manages and controls. Orders, rules of behaviour and laws are fixed and spread by writing and so have more effect. An anthropological look at history shows that the exercise of power, sovereignty, repression and exploitation became possible in literate societies on a scale which would be unthinkable in societies without writing.92 On the other hand, writing also holds considerable potential for freedom and democracy.93 In oral societies any non-conformist thinking generally gets forgotten. In written cultures, however, divergent opinions take on permanent form thanks to the dissemination of the written word, and therefore can evolve much more easily into opposing ideologies or alternative socio-political models.94 Manifestos and party programmes can become the seed corn of new, alternative and conflicting political ideas. To state it clearly: articulated, effective social protest was and is dependent on the ability to master writing.95 That still applies in the age of the Internet. Ideas and protests are still primarily – though not exclusively – set out in writing and disseminated. Though with the Internet the technical form for this dissemination has changed radically.

89

Menne-Haritz (2000), P. 5. Menne-Haritz (2000), P. 5 ff. inter alia. 91 Glinga (1989), P. 97 stresses, that oral and written per se are value neutral. 92 Very critical on this Lévi-Strauss (1978), P. 294 f., who speaks sharply about this, “that the primary function of written communication consists of making slavery easier.” 93 Havelock also stresses this (1990), P. 71 f. As does Elwert (1987), P. 240, who refers to the character of writing as an instrument for “democratisation (specifically: pluralisation)”. Goody (1981), P. 86 even sees a causal relationship between writing and democracy. Although this is challenged by Glinga (1989), P. 96. 94 Goody (1990), P. 204. 95 Elwert (1987), P. 241 f. 90

2.3 Gutenberg – and his Effects

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2.3 Gutenberg – and his Effects The invention of the printing press in the fifteenth century96 increased and changed the effects of written culture.97 In so doing, the “Gutenberg Revolution” changed fundamental political, economic and legal structures, at least in the Western world.98

2.3.1 The Manuscript Culture: Single Copies of Books For several centuries, the written culture was one of hand-written books.99 Texts were disseminated by copying manuscripts. From a media-psychological viewpoint the manuscript culture was characterised by synaesthesia and touch.100 The use of hand-written manuscripts and the practices of learning at the time required and also developed the ability to empathise and the use of all the senses. Reading primarily meant reading aloud and reading to others.101 Manuscripts were difficult to decipher and therefore had to be read aloud to extract their meaning.102 The eye therefore had to be complemented by other senses – mainly the ear.103 Here, there is an interesting parallel to modern multimedia culture. Multimedia presentations, which are closely linked to the process of digitalisation, specifically aim to involve not just the eyes but also other senses. The manuscript culture was a “Do-it-yourself culture” which was focused not on the consumers but on the producers.104 Manuscripts, if you wanted to use them, normally had to be copied. Because manuscripts were seldom ascribed to a single writer, copying in practice usually also meant editing.105 The production of knowledge in the manuscript culture was therefore an ongoing process, in which many different anonymous producers were involved.

96

At length on this Giesecke (1991), P. 63 ff. inter alia. Although the Chinese had already developed and practised the principle of printing with movable letters 500 years earlier. On this at length Febvre/Martin (1997), P. 71 ff. 97 Ong (1982), P. 115 ff. inter alia; Luhmann (1998), P. 291 ff. 98 Comprehensive on this Eisenstein (1979), P. 43 ff. inter alia, and pass. In the Arabic world the printed culture only spread much later. The reason for this can be found in the religio-cultural preference for spoken over written words in Islam and in Arab societies. At length on this Diner (2005), P. 107 ff. 99 McLuhan (1995), P. 92. 100 McLuhan (1995), P. 34. 101 McLuhan (1995), P. 110. 102 Ong (1982), P. 120 sees in the improved legibility and faster reading speed of printed texts an important reason for the success of printing technology. 103 Ong (1982), P. 117. 104 McLuhan (1995), P. 164. 105 McLuhan (1995), P. 165.

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2.3.2 Gutenberg’s Revolution: Books as a Mass Medium With the development of his printing press Gutenberg had a clear goal: each individual symbol, each page and each copy of the same book was to be totally identical.106 And Gutenberg achieved this ideal. But mechanisation of the skill of writing using the printing press had many more, far-reaching consequences than either Gutenberg – or indeed any else – could have imagined. It triggered a widespread standardisation process in language, thinking and knowledge. Unlike in oral societies, or those influenced by the manuscript culture, knowledge was passed on in its original, unaltered form.107 Over time a gigantic uniform108 collective memory store109 was created. For the first time in the history of writing, information existed which was both widespread and the same everywhere. This was nothing less than a cultural revolution. But its net effect is completely ambivalent.110 This can be illustrated by one example111 among many: typography not only broke down112 and democratised old structures of society and power. It also – the reverse side of the coin perhaps – made perception and thinking uniform, and so possibly less rich.113 What is unchallenged is that the new technology profoundly changed all areas of culture.114 The process of standardisation laid the basis for the scientific-technical progress of the modern era. Printed books were – no exaggeration – a critical factor in the scientific revolution.115 Because information could now be disseminated and processed much more effectively.116 Scientific and technological discoveries were no longer secret knowledge, but accessible to an ever-growing circle of readers. It was the inter-connection, homogenisation and organisation of human experience and efforts that enabled the scientific-technological revolution.117 In a

106

At length on this Giesecke (1991), P. 141, who refers to the origins of this ideal being in the Renaissance concept of harmony. 107 Eisenstein (1979), P. 80 ff. inter alia describes in detail the process of standardisation of knowledge which occurred thanks to book printing. 108 On the uniformisation of language thanks to printing Luhmann (1998), P. 295. Critical of the uniformisation of thinking thanks to books and printed books Giesecke (2002), P. 237 f., who talks tendentiously about the “adjustment of people”, which books made possible. 109 Printed books fulfil an important conservation function for a society’s social and cultural memory. At length on this Eisenstein (1979), P. 113 ff. 110 Thus very emphatically Giesecke (2002), P. 257 ff. 111 Giesecke (2002), P. 260 f. Develops in a synopsis further examples for the ambivalent results and effects of book culture. 112 On the cross-cultural interchanges, which printed books enabled, Eisenstein (1979), P. 75 ff. 113 McLuhan criticised this (1995), P. 263 ff. Heavily, at length and clearly. 114 Metz (2006), P. 61 ff. Ong (1982), P. 127 ff. inter alia provides a concise overview of the culture-changing effects of printed books. 115 Metz (2006), P. 63. 116 At length on this Eisenstein (1979), P. 89 ff. 117 McLuhan (1995), P. 204.

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word: the printing press unlocked synergies.118 The triumph of typographic writing systems also had a far-reaching economic impact. Book printing supplied the first uniform, available in as many copies as needed, consumer product – books.119 An international market for books developed.120 Knowledge as a mass-market item121 therefore marks an important step in the evolution of the free market economic system.122 That printing of books was a key technology is shown not least by its role in the development of nation states.123 It was the unifying pressure of printing technology that led to fixed rules for spelling and grammar.124 Only with this as a basis did it become possible for national literature and national awareness to develop, and – building on those – nation states. Thanks to printed books and – even more – pamphlets and newspapers, people could communicate publicly and in depth, discover shared ideas and form larger communities. Therefore printed media were a necessary pre-condition – though not the only one – without which nation states would have been unable to develop.125

2.3.3 Democracy Without Books? Each new medium arrives on the scene – this is a constant in media development over the centuries – promising more democracy.126 The arrival of the printed book was no different. At the latest in the fifteenth century it became known what options for the democratisation of knowledge the printed book brought with it.127 Book printing did actually start to bring about a radical upheaval of existing communication channels. Unlike in oral and also manuscript cultures, there were no longer any central elites and authorities who could regulate and control the flow of information. The new model was a – more or less free – marketplace, where information and ideas could compete for acceptance and agreement. Knowledge become public

118

Metz (2006), P. 63 talks in this context about a “mental relief effect.” Wenzel (2003a), P. 379 inter alia. At length on books as goods Febvre/Martin(1997), P. 109 ff. 120 Febvre/Martin (1997), P. 296 and at length Burke (2002), P. 190 ff. At the same time there were – of course – already early attempts to suppress disagreeable books. On this Febvre/Martin (1997), P. 304 f. 121 But knowledge was a product – if not a mass-produced product – long before the invention of the printing press. On this Burke (2002), P. 175 ff. 122 Giesecke (1991), P. 185 f., P. 395. 123 At length on this McLuhan (1995), P. 286 ff., and Giesecke (1991), P. 377 ff. inter alia (many). 124 Luhmann (1998), P. 298. At length on this Febvre/Martin (1997), P. 272 ff. 125 At length and comprehensive on this Anderson (1983). 126 Schmidt (2000), P. 188. 127 Giesecke (1991), P. 189 ff. 119

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property.128 A spectacular example of the impact of this development is the Reformation. Thanks to countless pamphlets and books, the beliefs of Martin Luther and other reformers spread rapidly across Germany and the whole of Europe.129 Between 1517 and 1520 alone, more than 300,000 copies of Luther’s writings spread right across Europe.130 That considerably increased the take-up of reforming ideas.131 It is scarcely possible to imagine the Reformation being successful without the mass distribution of printed literature.132 Book printing proved to be the major Enlightenment machine.133 The development of book culture is a necessary factor – though not sufficient on its own – for the development of authoritarian and hierarchically organised systems of society, and also of democratic models of society.134 To take it to its extreme: no books, no democracy.135

2.4 S peak in Judgement or Write Laws – from Spoken to Written Law Using writing as the dominant medium of communication shapes not only thought and society generally. It of course also has a strong influence on the legal system.136 The start of written culture therefore marks – hardly surprisingly – a turning point in the development of the law.137 Written law has prevailed by means of a long historical process which initially only staggered slowly and unsteadily for centuries. Oral law continued to dominate for a long time, even after writing had been invented.138 Up to the invention of book printing in the fifteenth century, the law therefore consisted of a confusing mixture139 of oral and written law. Orally transmitted law clearly dominated. But it was 128

Diner (2005), P. 111. Febvre/Martin (1997), P. 291. Diner (2005), P. 111 talks about 10,000 extant pamphlets, which were distributed between 1500 and 1530 in a total print run of 10 million copies. 130 Eisenstein (1979), P. 303 ff. 131 The influence of pamphlets on the development of the Reformation is analysed in detail by Febvre/Martin (1997), P. 288 ff. 132 Diner (2005), P. 110. 133 Giesecke (2002), P. 243. 134 Goody (1990), P. 202 ff. Describes the role of (typographic) writing for democratisation at length. 135 Of course books – and therefore education and communication – are only a necessary, not a sufficient condition for democracy. For other functional requirements for democracy at length Schmidt (2008), P. 412 ff. 136 On language as a medium for judicial communication Voigt (2000), P. 63 ff. inter alia 137 Sellert (1997), P. 38 f.; Katsh (1989), P. 64. 138 At length on this Berman (1978), P. 553 ff. for the time period from the 11th century. 139 The mixture of spoken and written law is illustrated by Reiffenstein (1986), P. 659 ff. inter alia based on examples of German records from the 13th century. 129

2.4 Speak in Judgement or Write Laws – from Spoken to Written Law

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increasingly supported, expanded and gradually also modified by the written law.140 Book printing changed this situation dramatically.141 With the existence of books, identical legal texts can be spread across large geographical areas.142 That does not just change specific parts, but also affects the whole character and importance of the law fundamentally. How did this development change the law?

2.4.1 The Rule of Law For a long time the law was just one, though by no means the dominant, method of avoiding conflicts or settling problems. Oral and early literate societies had a more social, less legal canon of methods for finding solutions to conflicts.143 In an oral society, law, morals, customs and traditions are all closely and inextricably linked.144 More strongly than in societies shaped by writing, religion and morals, as well as tradition and history, represent compelling sources of justice.145 Unlike in modern societies shaped by writing, legal standards are just one source of justice among many several. Once writing becomes the dominant cultural and communication medium, that changes.146 From the late Middle Ages the written culture in Europe was so widespread that, for the first time ever, written documents became more credible and therefore more important than verbal statements in legal circles. In addition to this, economic and social conflicts in the more complex and varied societies could no longer be resolved using verbal methods. New techniques for preventing and resolving conflicts became necessary. This was when written law came into its own. It proved itself to be a suitable instrument to prevent or to resolve even complicated conflicts. Thus started the development which ends with the supremacy of the law.147 To the point where we have started to talk about the

140

Similarly Sellert (1997), P. 41 f. Goody (1990), P. 259 ff., describes the development process very clearly using the example of mediaeval England. Hahn (1997), P. 35 ff. comments rightly that also in modern law in many areas a mixture of oral and written elements are to be found. 141 Luhmann (1993), P. 272 f.; Katsh (1989), P. 83 f. 142 Luhmann (1998), P. 269, therefore describes writing very aptly as a “distribution medium”. 143 Wesel (1985), P. 325 with examples and other proofs; Weitzel (1994), P. 612 f. inter alia A detailed overview of the various conflict resolution mechanisms in various forms of society is given by Nader/Todd (1978). 144 Wesel (1985), P. 336. Similarly Goody (1990), P. 225. 145 On the relationship between religion and law in early, pre-state societies Wesel (1985), P. 171 ff. inter alia Berman (1978), P. 553 ff. traces how the great variety of different sources of justice gradually reduces from the 11th century onwards and the law grows to be the single source of justice. Although it is not so in Islamic states even today. There the Koran is not only a religious text but also a source of justice. At length on this Ebert (2005), P. 200 ff. 146 Katsh (1989), P. 73 ff. inter alia traces this development at length. 147 Katsh (1989), P. 81 f.

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juridification of society, of politics and of thinking, and keep initiating deregulation policies.148 In particular the co-identity of religion and justice was terminated by the development of written law.149 In modern societies the law and religion are two separate areas. Written law is godless law.150 This does not by any means mean that morals, customs and conventions have no role to play in modern justice. Even today, religion, morals, customs and conventions influence both the creation and the content of laws. This is particularly clear when written law refers to decorum or bones mores or normal business practices. Interactions between law and society are also important where common law develops or natural principles are drawn on to resolve specific points of law. All in all, both individual legal standards and the legal system as a whole reflect the religious, moral, political and social standards of society more or less clearly.

2.4.2 T he Idea of the Self – Equality and Subjective Rights Enter the Law Oral law is to a large extent inherently relative, not absolute.151 What does that mean? Oral legal systems have no concept of “equal before the law”. The same circumstances will not necessarily always be handled in the same way. Identical infringements against legal standards will not always have identical results. Which legal consequences occur will be influenced by all manner of different non-legal social factors. A simple example: what kind of sanction is applied for breaking the law depends in some oral legal cultures on the relationship between the culprit and the victim or what physical distance separates them, among other things.152 Why is this the case? In oral legal cultures there are multiple sources of justice, originating from different areas of society, which co-exist without being in a fixed, pre-defined hierarchy. They are usually vague as to scope and it is not unusual for them to contradict each other. A further reason for the structural relativity of oral law is the way in which non-literate societies impose their standards in case of conflict. Oral societies resolve legal conflicts not by formalised hearings in front of rigidly structured institutions and courts. Their most important technique for solving problems and removing conflicts is: speech.153 A complaint is not taken to court. It is explained to other members of the society, with the intention that this complaint 148

Rehbinder (2009), Rn. 145 inter alia. That however only applies in the national arena. In international politics and in the global economy juridification is on the whole not very far advanced. 149 Wesel (1985), P. 349; Luhmann (1993), P. 251 f. 150 Fögen (2003), P. 85 ff. 151 Wesel (1985), P. 340. 152 Wesel (1985), P. 340. 153 Katsh (1989), P. 57. Other methods are mediation, rituals and ceremonies. At length on mediation Pünder (2005), P. 6 ff.


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becomes a matter for discussion for the whole society, thanks to the process of communication. In this process, which is not coincidentally reminiscent of the modern mediation process, a solution is sought through discussion. A public opinion emerges, which both the parties to the “case” will bow to.154 It is not unusual for social pressure, exercised by public opinion, to be reinforced by traditional rituals and ceremonies.155 This has major consequences: there is no central body that decides precisely what is relevant for resolving a conflict, and what is not. The process by which public opinion is formed about the solution to a legal dispute may well reach a clear conclusion, which can also be applied effectively in practice. But the process itself is too vague – not to say chaotic – to ensure that for each identical problem an identical solution will be found. This is what mainly causes the structural relativity that is typical of oral legal cultures.156 This situation changes when written law begins to dominate. Written law is – at least on the whole – not relative but absolute. Written, and therefore more abstract, law means that infringements against standards (should) always have the same consequences. Unlike under oral law differences in personal and social relationships only play a subordinate role. Because now there is a single and organised store of legal standards and precedents which can be consulted at any time. This is also a very early seed for the concept of equality which plays a fundamental part in modern law. For it is only once the structural relativity of oral law has been overcome, that the concept of equality before the law can be applied. With the emergence of the concept of equality comes another profound change: gradually personal rights are built up. That was something new. Spoken language as a means of communication is, of necessity, focused on the community. You don’t talk to yourself but to other people.157 That fits well with the framework within which communication originally took place. In early, oral cultures survival depended on the success of the group, not on the success of the individual.158 Oral knowledge can only be passed on if it is told to others or demonstrated. Listeners are necessary, who take part in the memorising of the oral knowledge.159 The result: the individual per se was irrelevant in early cultures. Oral legal systems therefore – as an outcome – generally have no laws for the individual.160 That scarcely changed during the early days of written culture. Up to the invention of the printing press, even reading and writing were still strongly flavoured by speech. Reading usually meant reading aloud.

154

Katsh (1989), P. 57 f.; Wesel (1985), P. 185. At length on this Katsh (1989), P. 60 ff. 156 Wesel (1985), P. 349 f. inter alia, but correctly points out that also written national law is not monolithic thanks to differing interpretations. 157 Talking to oneself meets important psychological needs but is not a form of communication. 158 Katsh (1989), P. 232. 159 Havelock (1990), P. 79. 160 At length on this Katsh (1989), P. 233. 155

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Printed books changed this situation radically. Communication via printed texts is – unlike oral communication – potentially private.161 Printed books are not read out in a group, they are normally read alone, in isolation from the group.162 The triumph of the book was a major factor in increasing the importance of the individual in Western society. Through books an individual can know more. The clearly greater information power of the individual leads to a different way of thinking: instead of the group, it is the individual who takes centre stage. Of course that has an impact on legal thinking: jurisprudence becomes strongly individualised. Although this is not to claim a direct cause and effect.163 At the latest by the Renaissance, the individual was already becoming more important – in theory and in practice.164 Jurisprudence was becoming more involved with the legal position of the individual.165 Personal rights, constitutional rights and human rights became important components and the seeds of modern legal thinking.166 The law did not invent the concept of the independent and self-determining individual. But it adopted it and reinforced it.167 This trend was supported and reinforced by book printing – both in a technical/practical sense and in terms of meaning/content: printed books ensured a more rapid and extensive spread of all ideas, and made more individual involvement with ideas possible.

2.4.3 Written Sources of Law – and their Effects Printed legal texts became a new, and at the end of the development process, a decisive source of law. What justice actually is, is now no longer passed on by oral means with the help of symbols and rituals. What justice is, can be found in printed literature.168 The explosive increase in printed literature also multiplied the sources of law. Thanks to writing, the law began to fragment more and more.169 With this growth and expansion of a whole universe of jurisprudence, a hierarchy of sources 161

Thus Ong (1982), P. 128 f. On this Havelock (1990), P. 79. 163 Even from the point of view of a methodology it is problematic, trying to interpret historical developments teleologicially. That quickly leads to historic misinterpretations and systematic distortions. On this Bielefeldt (2007), P. 179. 164 But the idea of human rights was developed earlier and in other cultural circles than the West. Instructive on this is Dohrmann (2007), P. 116 ff. inter alia, who uncovers the Indian roots of the concept of human rights in the 6th century BC. 165 Katsh (1989), P. 233 ff. 166 On the development of subjective (human) rights in the history of ideas Hofmann (1999), P. 11 ff., and Bielefeldt (2007), P. 177 ff. inter alia, who criticises the traditional presentation as historically inaccurate and systematically distorted. 167 Katsh (1989), P. 237. 168 Weitzel (1994), P. 611 f. 169 On this Hahn (1997), P. 48 ff. 162


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of law becomes necessary.170 The diversification of legal sources led increasingly to contradictions in application: different sources of law covered the same events. Which source of law then finally applies is the cornerstone of the theory of the hierarchy of legal sources, which of sheer necessity had to develop in parallel to the diversification of different sources of law – and which did in fact develop. In oral societies, law is handed down as a narrative171 and directly related to situations. Legal standards are not presented as abstract rules but as actual history.172 An example for this is the book of laws173 of Hammurapi from the time of ancient Babylonia.174 This very down-to-earth structure of thought is defined by the properties of oral communication: unlike written communication the oral tradition depends on images of speech, speech rhythms, memorable stories and other techniques which reinforce memory.175 Not least for this reason, its jurisprudence had to be linked to concrete experiences of the senses.176 Legal transactions, for example, were not carried out by the transfer of abstract rights. They required an actual exchange of tangible items with the participation of eye-witnesses.177 Only with the development of a written culture did this change substantially. Law passed down in writing becomes detached from the actual individual case. At the same time, the legal sphere began to abstract itself from reality. Jurisprudence developed general, abstract rules with a claim to universal validity, above and beyond a single concrete specific case. But at the same time the law – this is the other side of the coin – no longer looks at all the circumstances of an individual case. It focuses on a few aspects of a problem, which it deems relevant. The decontextualisation of written law had a far-reaching effect on judicial methods and on jurisprudence. Because written law is more abstract, it is no longer self-evident. It needs interpretation.178 At the same time, written law can be and is reviewed, commented and further developed again and again. Legal dogma becomes ever more refined, judicial thinking ever more abstract.

170

Luhmann (1993), P. 251 f. Thoroughly on the major importance of story-telling in oral cultures Havelock (1986), P. 75 f. 172 Katsh (1989), P. 252. 173 Whether the Codex Hammurapi even was a collection of laws, is contested in the study of ancient civilisations. On this debate at length Renger (1994), P. 27 ff. inter alia. 174 Havelock (1978), P. 43. Kienast (1994), P. 19. On the content of the rules which are listed in the Codex Hammurapi, at length Klengel (1991), P. 189 ff., and Roßnagel (o. J.), P. 2 f. 175 Further examples of mnemonic tricks from ethnological observations explained by Schott (1968), P. 199 f. 176 Smith (1968), P. 191, 198. 177 Katsh (1989), P. 252. 178 Luhmann (1993), P. 256. Luhmann (1998), P. 269, stresses that writing increases the uncertainty about what is actually meant by an act of communication. Oral communication is usually less ambiguous, not least due to the presence of the person who is communicating. 171

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Thanks to writing, and later, more strongly, due to the printing of books, the number of laws rose substantially. Because writing and printed books ensured that the limited capacity of human memory no longer imposed limits on the number of legal thoughts and rules. Through the increase in legal material a new problem arose: how to maintain an overview of the ever-expanding legal material? The more legal rules which were created and spread, the more it became necessary to again simplify the law and codify it. Writing and printed books therefore both made legal dogma necessary and also helped to promote it.179 Law in literate societies is considerably more formal and more complex than in oral societies.180 The connection between writing, formality and complexity is shown particularly clearly in the example of legal contracts, documents and registers. Of course oral societies also know certain forms of contractual relationships.181 The parties to the contract are dependent in this case on the memories and longevity of the eye-witnesses who remember and who can carry forward the content of the contract into the future.182 Therefore both the time span and the complexity of the content of oral contracts is fundamentally restricted.183 Only with writing can contracts be made independent of human memory. Only writing enables potentially unlimited complexity in contractual contents.184 Writing made possible the ascension of the contract as the decisive instrument in shaping many business areas. The revolutionary change-over from a status-based society, where it is social status which matters, to a society which is defined by contractual relationships185, is unthinkable without the development of a written culture. In addition, a written culture both made the development of public registers possible and promoted the need for them.186 The effects of public registers on the further development of society are – this is shown by both the history of law and anthropology – extensive.187 The registration of land ownership was not merely a new technique of law enabled by writing. It also had an impact on the content of the reality of ownership and the rights of ownership.188 In the same way the registration

179

Luhmann (1993), P. 273. At length on this Goody (1990), P. 237, who refers to historical examples. Similarly Hahn (1997), P. 49, who stresses the connection between written law and the diversification, and therefore the increase in complexity of society. On the role of writing in the diversification of society in general Luhmann (1998), P. 254 ff.; 271. 181 Goody (1990), P. 237; Wesel (1985), P. 351. 182 Generally on validating legal claims in societies without writing Schott (1968), P. 185 f. 183 Goody (1990), P. 238. 184 Weitzel (1994), P. 615 inter alia. 185 The British legal historian Henry Maine in the 19th century came up with the famous phrase from status to contract. At length on this Wesel (1985), P. 12 ff. 186 Weitzel (1994), P. 614 f. 187 At length on this Goody (1990), P. 253 ff. with instructive examples. 188 See on this examples from Goody (1990), P. 254 ff. 180


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of marriages is not just a legal formality. It changed – and this is shown by anthropological and legal-history studies – family structures within society.189 Oral cultures did already have the possibility of transferring property on death via a kind of will.190 But the use of writing extended the possibilities of testamentary arrangements to a new dimension. Oral wills can fairly easily be relativised by reference to inherited rules and customs. Contents which deviate from the tradition and expectations of the society have a hard time if they are only delivered orally. But written wills, which are also drawn up by a specialist, have significantly more obvious authority and so impact. This expands the options for the person writing the will. With a written will he can deviate more easily from the patterns of inheritance which are the norm in the society. This makes the written will – unlike the oral one – an effective instrument for social change.191 Less notice needs to be taken of the traditional way of doing things or of conservative expectations. A will now has – thanks to writing – stronger effects and can actively – and, not unusually, innovatively – create new structures by the way in which it passes on belongings.

2.4.4 Law Suits – Reduction of Scope and Clear Decisions The diversification of the sources of law inspired and accelerated by the growth of a written culture also influenced the institutional organisation of the legal system.192 Whilst oral societies mainly manage without any specialised legal institutions, such as courts, this changes in literate societies.193 To reduce it to one sentence: in a slow, gradual process the court of law separates itself from the court of the king.194 At the same time a further development can be observed: the law becomes a profession in its own right, which is practised by experts.195 Oral societies still resolve legal problems by a wide-ranging discussion, in which potentially all members of the society can take part.196 No difference yet exists between legal laymen and legal experts. The more sophisticated the written law becomes, the less this remains pos-

189

Goody (1990), P. 238 f. At length on this Goody (1990), P. 242 ff. 191 Thus very emphatically Goody (1990), P. 244 with comparative examples from an anthropological viewpoint. 192 Goody (1990), P. 235. 193 Social anthropology distinguishes ideal-typically between societies with and without courts. On this Goody (1990), P. 219. 194 Goody (1990), P. 235. The historical process is traced by Collins/Skover (1992), P. 527 ff. inter alia. At length on the importance of diversified functions of courts Luhmann (1993), P. 329 ff. 195 At length on the professionalisation of legal competence Luhmann (1993), P. 329 ff. inter alia. 196 Weitzel (1994), P. 612 f. 190

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sible. The specialised, sophisticated and much more complex law can now only be understood and applied by professionals.197 Legal anthropology research shows how the development of a written culture also increasingly changed the process of law.198 In oral societies without writing every legal process starts again from scratch.199 There are no written rules or recorded cases of precedents to be referred to. The entire basis for the decision of the court will be developed orally during the hearings by all the parties involved in the discussions. Only with writing comes a fixed legacy of rules and precedents, which can be referred back to at any time.200 In literate societies written proof became admissible and rapidly became the dominant method for uncovering the truth.201 This had a whole series of formal effects, mainly relating to procedures.202 Of much more fundamental importance for the further development of the law, however, is an issue of content which affected court procedure arising from the switch to writing: elements of proof and therefore in the last analysis the truth itself are defined more narrowly and more formally.203 In legal disputes in oral societies the truth was still sought in discussion covering everything with many participants.204 The whole truth included not just the legal aspects and arguments, but also social, psychological, political and cultural ones.205 With the development and gradual dominance of written elements of proof it became possible to prepare and structure court procedures in advance. What was almost unthinkable in the discussion-driven cases in an oral society became more and more normal practice with the help of written elements of proof: a clear distinction was made in the preparation of legal processes between the legally relevant and legally irrelevant aspects and argu-

197

On this Katsh (1989), P. 86. Informative on this using the example of England in the late 13th century Goody (1990), P. 267 f. inter alia. 198 Goody (1990), P. 248 ff., and Katsh (1989), P. 76 ff., trace this process using historical examples. 199 An informative example on this is given by Goody (1990), P. 231 f. 200 Luhmann (1993), P. 246. 201 Weitzel (1994), P. 614 inter alia Goody (1990), P. 248, points out that already in early history – for example in Egypt around 2150 BC – written elements of proof were ascribed greater weight of truth than oral witness statements. 202 Katsh (1989), P. 76 ff., and Goody (1990), P. 250, illustrate historical examples of how formalities in court processes changed due to the development of writing. 203 Thus very emphatically Goody (1990), P. 251. 204 It is this kind of oral legal process in pre-state societies that the gacaca justice in Ruanda seems to descend from. Its aim is to come to terms with the horrors and crimes of the civil war between Tutsi and Hutu in 1994 in a wide ranging discussion between victims, culprits, family members and members of the relevant village communities. The “normal” justice in this case is unable to deal with the situation, due to the large number of acts and offenders. At length and critically about the gacaca justice in Ruanda Harrell (2003), P. 67 ff. 205 Informative about the court processes in oral societies Berman (1995), P. 99 ff., and Schott (1978), P. 607 ff. With many explanatory details.


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ments. It was no longer a question of generally seeking the truth as a whole. The goal of a court procedure was now to discover the legally relevant truth.206 Despite this, court proceedings even today have remained strongly influenced by oral discourse.207 In modern law the written procedure generally is used to prepare for an oral hearing. The oral hearing enables a briefer and more rapid discussion of open points.208 Public and direct access are basic pillars of the legal processes of a constitutional state. Use of written methods alone would scarcely be possible in practice. Therefore it is typical and necessary in a court procedure to have specific areas where written and oral elements apply. The triumph of writing in the law also changed the aims and the outcomes of legal processes. In oral societies legal conflicts are on the whole settled by negotiation, mediation and agreement.209 This type of conflict resolution is promoted by the dominant communication medium, i.e. speech. Because in an inclusive debate with many participants all possible aspects of a dispute are examined and discussed, the situation becomes ever more complex and more “fuzzy”. Clear – or “focused” – decisions do not resolve this kind of approach to a problem. A solution will only be accepted by everyone if it covers as many of the aspects of the conflict which were discussed as possible. On the whole that can only be done by a – more or less complicated – compromise. This “fuzzy”210 style of solution, similar to the modern method of mediation, takes a back seat when a written culture develops and starts to change legal thinking. Writing is more focused and clearer than oral debate. Writing can bring a clarity and lack of ambiguity which would not be possible in the heat of contentious, oral communication.211 Clear decisions can only be taken on the basis of fixed, written, clear codes. It is the culture of writing that moves jurisprudence on to become decision-making thought. Through the influence of writing, jurisprudence is conceptually tightened up and focused on the goal of an Either-Or decision. On the procedural level this means: instead of an inclusive process looking for a compromise, we get a confrontational process which generally will end in an unambiguous verdict.

2.4.5 Written Law – An Ambivalent Heritage Making the law literate brought with it a series of advantages and opportunities for further developments. At the same time, however, there are disadvantages which

206

Similarly earlier Collins/Skover (1992), P. 533. Weitzel (1994), P. 617. 208 Weitzel (1994), P. 617. 209 See on this Wesel (1985), P. 329. 210 Thoroughly on fuzziness in law Boehme-Neßler (2008), P. 655 ff. 211 Thus correctly Luhmann (1993), P. 249. On language problems in court processes thoroughly Ellscheid (1992), P. 275 ff. 207

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cannot be overlooked, which are linked to the shift to written laws. The overall result is truly ambivalent. What are the advantages of written laws? Written law is more stable than oral law.212 That is true first of all in a purely physical sense. Law which is stored in someone’s memory and passed on orally, will of necessity change to a greater or lesser extent when it is orally processed. Exact copies are not possible with oral transmission. Laws which are stored in writing, can be repeated exactly and identically.213 They can – going further – be fixed and stored. But the stability is not limited to the physical level. Laws which are written down enjoy the Authority of writing.214 They can be stored longer, so they can be referred to time and again for certainty and clarification. Deviations and misquotations can be detected, which might go unnoticed amid the excitement of a disputed verbal argument.215 Stability – and with it reliability – of the legal system is a not to be underestimated advantage that the move to written law brought with it.216 Stability, regularity and reliability are (were) important goals of the law in all cultures.217 Why is this? They increase confidence in the law and legal system.218 Confidence in the law in turn enhances the ability to act in all areas of society quite considerably.219 If you can trust the law, then the basis for planning for all activities becomes more stable and more solid.220 Risky, but at the same time, profitable reliance on economic undertakings221 or on other people222, is easier if you can rely on the law.223 Written law can be very abstract. Because unlike oral law it does not need to take mnemonic tricks into account, which considerably restrict the options for organising the content. It does not need to be redundant and tell stories. Written – which mainly 212

Luhmann (1993), P. 246 on the connection between writing and consistency in law. On this Goody (1990), P. 281. 214 Writing has not always had this authority. Informative on this is Plato’s critique, Phaidros (2006), 276 b ff. He regards writing – because the author is not present – as an insignificant game, that cannot be taken seriously. Whether writing is better than oral communication, was debated fiercely in the 12th and 13th centuries when writing was spreading increasingly across Europe. On this Wenzel (2003a), P. 375 f. 215 Luhmann (1993), P. 249. 216 But quite rightly Luhmann (1993), P. 255 stresses that written law does not provide total reliability and security. It is too open to interpretation. 217 Sellert (1997), P. 30. 218 Seminal on the function of trust in human societies Luhmann (2000), P. 27 ff. inter alia. 219 Fuhrmann (2001), P. 35 ff. Illustrates the close relationship between the ability to act, complexity and trust. 220 A problem which should not be under-estimated in the further development of Electronic Commerce is the still limited level of consumer trust. This is the current challenge for E-Commerce law. Thus quite correctly Fuhrmann (2001), P. 29 f. On this at length also Froomkin (1996), P. 49 ff. 221 On the importance of trust for co-operation in the economy Bachmann (1997), P. 255 ff. inter alia. 222 On personal trust Kumbruck (2000), P. 108 ff. 223 Luhmann (1993), P. 132 inter alia At length on the importance of trust in the law Fuhrmann (2001), P. 35 ff. 213


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means: abstract – law has hugely enlarged the freedom and choice of form in the development of legal standards.224 Because written law can be much more abstract than oral law, it needs to pay much less heed to realities. The creative imagination of lawmakers in developing standards and sets of standards is no longer limited by reality. Highly abstract legal concepts, such as a legal person, could not have been created in the concrete, oral legal system anchored in people and situations. What is the down-side of the strong ability to abstract which exists for written laws? Written laws are clearly more narrowly focused than oral ones.225 Written law can abstract away from reality and it makes ample use of this ability. It busies itself – unlike oral law – not with the whole of reality, but only with certain parts and excerpts of reality, defined by the law itself as being relevant.226 Not infrequently this leads to the law being far removed from reality.227 Written law is – and this may seem surprising on first sight – more flexible than the law under an oral tradition. It extends the room for manoeuvre of the lawmakers and those who apply the law quite considerably. That has both a physical dimension and relates to content. Setting down in writing makes things less dependent on place and time. Oral information only reaches the recipient when they are there at the same place at the same time. This is not the case for written information – such as legal texts. They can be referred to regardless of who is present at the time.228 Written law can therefore be more easily applied in unforeseen, surprising situations.229 Possibly this is an as yet unnoticed reason for the increasing juridification of modern societies. Because the law in its written form is accessible always and everywhere, it is called upon always and everywhere. If that – as is the case for oral law – were not possible, then possibly the juridification would be reduced just for this practical reason. This flexibility due to being written also has another content-driven component. Assumption: oral law is much easier to change than written law. You do not need any formalised legal amendment process. Simple forgetting is enough. But whether written law is therefore actually much less flexible than oral law is still doubtful.230 Modern, written law has over time developed new instruments which compensate for this lack of flexibility: indefinite legal concepts, general clauses, room for judgement and legally controlled assessment procedures. These legal instruments enable legal modifications without use of the highly formalised 224

Katsh (1989), P. 250; Luhmann (1993), P. 249. Leroi-Gourhan (1988), P. 263 f., even sees a close link between the development of writing and a narrowing of human thought. 226 On the effects that this has on current training of lawyers, Katsh (1989), P. 256 f. 227 Distance from the world is a fundamental problem of writing. On this Luhmann (1998), P. 256. 228 Luhmann (1993), P. 247. This is a major advantage of written (pre-)procedures provided for by case law. 229 Similarly Luhmann (1993), P. 249 for text generally. 230 Thus very emphatically Goody (1990), P. 281, and Hahn (1997), P. 41. On this problem area using the example of the law in ancient Athens Camassa (1994), P. 107 f. 225

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lawmaking process. Technical progress forces the modern legal system towards a considerable degree of flexibility.231 Because technical questions can only be adequately settled legally if the law is happy to experiment232 and permanently able and willing to learn.233 It is precisely the highly abstract and complex – written – environmental and technical laws which are therefore a good example of the great flexibility of written law. But even the high flexibility of written law is ambivalent. Written texts are much more in need of interpretation than spoken utterances.234 Written law therefore fundamentally has a greater need to be interpreted than oral law. That makes is possibly less unambiguous.235 Therefore the drafting of written legal texts is highly demanding and painstaking: they have to try to be as comprehensible as possible just as they stand, to close the door on different interpretations and to avoid internal contradictions.236 In fact that is why written law has made it necessary to have sophisticated dogmas, refined methods of interpretation, multiple branches of jurisprudence,237 highly specialised legal professions and diversified types of courts.238

Bibliography Althoff, Gerd (1997): Spielregeln der Politik im Mittelalter. Kommunikation in Frieden und Fehde. Darmstadt. Althoff, Gerd (2003): Inszenierte Herrschaft. Geschichtsschreibung und politisches Handeln im Mittelalter. Darmstadt. Anderson, Benedict (1983): Imagined Communities. London. Assmann, Aleida (1993): Zur Metaphorik der Erinnerung, in: Aleida Assmann/Dietrich Harth (Ed.): Mnemosyne. Formen und Funktionen der kulturellen Erinnerung. Frankfurt am Main, P. 13 ff.

231

At length on the law and democracy in a world shaped by technology Roßnagel (1992), P. 59 ff. 232 Experiments in lawmaking seem to be really needed when constitutional rights or other community assets need to be protected from risks from dangerous technologies. Thus correctly Roßnagel (1992), P. 59 inter alia. Seminal on experimentation in law and experimental jurisprudence earlier Beutel (1971), P. 31 ff. 233 Roßnagel (1992), P. 59 f., who brings out the properties which a parliamentary law-making process which is capable of learning needs to have. 234 Luhmann (1993), P. 256. This is shown by Fögen (2003), P. 83 f. with the example of Roman law. 235 Fögen (2003), P. 83 expresses it: Legal texts “inevitably provoke a difference between text and interpretation”. 236 Luhmann (1993), P. 249 inter alia Assmann (2000), P. 18 f., talks about the necessity for “textual consistency”. 237 Rehbinder (2009), Rn. 92 ff., diagnoses a “tendency to scientification of the law”. 238 Generally on the increasing specialisation of the legal system Rehbinder (2009), Rn. 91. Thoroughly on the diversification of the law from a system theoretical perspective Luhmann (1999a), P. 35 ff.

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Hofmann, Hasso (1999): Die Entdeckung der Menschenrechte. Berlin/New York. Humboldt, Wilhelm von (1822): Über das Entstehen der grammatischen Formen und ihren Einfluss auf die Ideenentwicklung, quoted from the Fourier-Verlag edition. Wiesbaden 2003. Humboldt, Wilhelm von (1829): Über die Verschiedenheiten des menschlichen Sprachbaues, quoted from the Fourier-Verlag edition. Wiesbaden 2003. Hunter, Dan (2003): Cyberspace as Place and the Tragedy of the Digital Anticommons, in: California Law Review, Vol. 19, P. 439 ff. Idensen, Heiko (1996): Die Poesie soll von allen gemacht werden! – Von literarischen Hypertexten zu virtuellen Schreibräumen der Netzwerkkultur, in: Dirk Matejovski/Friedrich Kittler/Ed.): Literatur im Informationszeitalter. Frankfurt/Main, P. 143 ff. Illich, Ivan/Sanders, Barry (1988): Das Denken lernt schreiben. Lesekultur und Identität. Hamburg. Imdahl, Max (1996): Giotto Arenafresken. Ikonographie. Ikonologie. Ikonik. 3rd Edition Munich. Innis, Harold Adams (1951): The bias of communication. Toronto (quoted here from the 2003 reprint). Jäger, Ludwig (2001): Sprache als Medium. Über die Sprache als audio-visuelles Dispositiv des Medialen, in: Horst Wenzel u.a. (Ed.): Audiovisualität vor und nach Gutenberg. Vienna, P. 19 ff. Katsh, Ethan M. (1989): The electronic media and the transformation of law. New York, Oxford. Kay, Paul/Kempton, Willett (1984): What is the Sapir-Whorf-Hypothesis?, in: American Anthropologist 86, P. 65 ff. Kienast, Burkhart (1994): Die Altorientalischen Codices zwischen Mündlichkeit und Schriftlichkeit, in: Hans-Joachim Gehrke (Ed.): Rechtskodifizierung und soziale Normen im interkulturellen Vergleich. Tübingen, P. 13 ff. Klaffke, Claudia (1998): Mit jedem Greis stirbt eine Bibliothek. Alte und neue afrikanische Literatur, in: Aleida und Jan Assmann/Christof Hardmeier (Ed.): Schrift und Gedächtnis. 3rd Edition Munich, P. 222 ff. Klein, Wolfgang (1985): Gesprochene Sprache - geschriebene Sprache, in: Zeitschrift für Literaturwissenschaft und Linguistik, Year 15, Vol. 59, P. 9 ff. Klengel, Horst (1991): König Hammurapi und der Alltag Babylons. Zurich. Kumbruck, Christel (2000): Digitale Signaturen und Vertrauen, in: Arbeit 9/4, P. 105 ff. Küppers, Bernd-Olaf (2008): Nur Wissen kann Wissen beherrschen. Cologne. Laermann, Klaus (1990): Schrift als Gegenstand der Kritik, in: Merkur 492, P. 120 ff. Leroi-Gourhan, André (1988): Hand und Wort. Die Evolution von Technik, Sprache und Kunst. Frankfurt/Main. Lévi-Strauss, Claude (1973) : Das wilde Denken. Frankfurt/Main (Orig. : La pensée sauvage. Paris, 1962). Lévi-Strauss, Claude (1978): Traurige Tropen. Frankfurt/Main. Luhmann, Niklas (1993): Das Recht der Gesellschaft. Frankfurt am Main. Luhmann, Niklas (1998): Die Gesellschaft der Gesellschaft. Frankfurt/Main. Luhmann, Niklas (1999a): Die Ausdifferenzierung des Rechts. Beiträge zur Rechtssoziologie und Rechtstheorie. Frankfurt am Main. Luhmann, Niklas (2000): Vertrauen. Ein Mechanismus der Reduktion sozialer Komplexität. 4th Edition Stuttgart. Lurija, Aleksandr Romanovic (1976): Cognitive Development: its Cultural and Social Foundations. Cambridge, Mass. McLuhan, Marshall (1995): Die Gutenberg-Galaxis. Das Ende des Buchzeitalters. Bonn, Paris. Menne-Haritz, Angelika (2000): Steuerungsinstrumente in der Verwaltungsarbeit, in: Die Verwaltung 33, P. 1 ff. Messaris, Paul (1994): Visual literacy. Image, mind and reality. Boulder/Colorado. Metz, Karl H. (2006): Ursprünge der Zukunft. Die Geschichte der Technik in der westlichen Zivilisation. Paderborn. Müller-Dietz, Heinz (1993): Sprache und Recht, in: Commemorative publication for Günther Jahr. Tübingen, P. 127 ff.

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Nader, Laura/Todd, Harry F. jr. (1978): The Disputing Process: Law in Ten Societies. New York. Oksaar, Els (1989): Alltagssprache, Fachsprache, Rechtssprache, in: Zeitschrift für Gesetzgebung, P. 210 ff. Ong, Walter J. (1982): Orality and Literality. London/New York. (The quotes are taken from the 2002 reprint of the original edition) Pinker, Steven (1996): Der Sprachinstinkt. Munich. Pinker, Steven (2000): Wörter und Regeln. Die Natur der Sprache. Heidelberg/Berlin. Platon (2006): Phaidros, in: Ursula Wolf (Ed.): Sämtliche Werke Bd. 2. 31st Edition Reinbek, P. 539 ff. Pünder, Hermann (2005): Kooperation statt Konfrontation. Möglichkeiten und Grenzen der Mediation bei Planfeststellungsverfahren, in: Die Verwaltung, P. 1 ff. Rehbinder, Manfred (2009): Rechtssoziologie. 7th Edition Munich. Reiffenstein, Ingo (1986): Zur Begründung der Schriftlichkeit in deutschen Urkunden des 13. Jahrhunderts, in: Sprache und Recht – Festschrift für Ruth Schmidt-Wiegand, Vol. 2. Berlin/New York, P. 659 ff. Renger, Johannes (1994): Noch einmal: Was war der „Codex Hammurapi“ – ein erlassenes Gesetz oder ein Rechtsbuch? in: Hans-Joachim Gehrke (Ed.): Rechtskodifizierung und soziale Normen im interkulturellen Vergleich. Tübingen, P. 27 ff. Riepl, Wolfgang (1913): Das Nachrichtenwesen des Altertums. Mit besonderer Rücksicht auf die Römer. Leipzig/Berlin (quoted here from the 1972 reprint, Hildesheim/New York). Rorty, Richard (1968): Introduction. Metaphilosophical Difficulties of Linguistic Philosophy, in: Richard Rorty (Ed.): The Linguistic Turn. Recent Essays in Philosophical Method. Chicago/ London, P. 1 ff. Roßnagel, Alexander (1992): Die parlamentarische Verantwortung für den technischen Fortschritt, in: Zeitschrift für Rechtspolitik, Heft 2, P. 55 ff. Roßnagel, Alexander (o.J.): Papier - die unbekannte Grundlage unserer Rechtsordnung. Unpublished manuscript. Sandermann, Wilhelm (1997): Papier. Eine Kulturgeschichte. 3. Edition Berlin/New York. Saussure, Ferdinand de (1967): Grundfragen der allgemeinen Sprachwissenschaft. 2nd Edition Berlin. Schechner, Richard (2006): Performance Studies. An Introduction. 2nd Edition New York/Oxon. Scheffer, Thomas (1998): Übergänge von Wort und Schrift: Zur Genese und Gestaltung von Anhörungsprotokollen im Asylverfahren, in: Zeitschrift für Rechtssoziologie, P. 230 ff. Schenkel, Wolfgang (1998): Wozu die Ägypter eine Schrift brauchten, in: Aleida und Jan Assmann/Christof Hardmeier (Ed.): Schrift und Gedächtnis. 3rd Edition Munich. Schmidt, Manfred G. (2008): Demokratietheorien. Eine Einführung. 4th Edition Wiesbaden. Schmidt, Siegfried J. (2000): Kalte Faszination. Medien, Kultur, Wissenschaft in der Mediengesellschaft. Weilerswist. Schott, Rüdiger (1968): Das Geschichtsbewusstsein schriftloser Völker, in: Archiv für Begriffsgeschichte 12, P. 166 ff. Schott, Rüdiger (1978): Das Recht gegen das Gesetz: Traditionelle Vorstellungen und moderne Rechtsprechung bei den Bulsa in Nordghana, in: Günter Kaulbach/Werner Krawietz (Ed.): Commemorative publication for Helmut Schelsky. Berlin, P. 605 ff. Schott, Rüdiger (1990): Die Macht des Überlieferungswissens in schriftlosen Gesellschaften, in: Saeculum 41, P. 273 ff. Sellert, Wolfgang (1997): Gewohnheitsrecht, Formalismus und Rechtsritual im Verhältnis zur Steuerung sozialen Verhaltens durch gesetztes Recht, in: Heinz Duchhardt/Gert Melville (Ed.): Im Spannungsfeld von Recht und Ritual. Soziale Kommunikation in Mittelalter und Neuzeit. Cologne/Weimar/Vienna, P. 29 ff. Smith, J.C. (1968): The unique nature of the concepts of western law, Canadian Bar Review, P. 191 ff. Stetter, Christian (2008): Stimme und Schrift, in: Waltraud Wiethölter u.a. (Ed.): Stimme und Schrift. Munich, P. 115 ff.

Bibliography

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Türcke, Christoph (2005): Vom Kainszeichen zum genetischen Code. Kritische Theorie der Schrift. Munich. Voigt, Rüdiger (2000): Recht – Spielball der Politik ? – Rechtspolitologie im Zeichen der Globalisierung. 4th Edition Baden-Baden. Wandhoff, Haiko (2003): Im virtuellen Raum des Textes: Bild, Schrift und Zahl in Chrétiens de Troyes „Erec et Enide“, in: Ulrich Schmitz/Horst Wenzel (Ed.): Wissen und neue Medien. Bilder und Zeichen von 800 bis 2000. Berlin, P. 39 ff. Wandruszka, Mario (1979): Sprache und Sprachen, in: Armin Mohler/Anton Peisl: Der Mensch und seine Sprache. Frankfurt/Main, P. 7 ff. Weingarten, Rüdiger (1989): Die Verkabelung der Sprache. Grenzen der Technisierung von Kommunikation. Frankfurt am Main. Weitzel, Jürgen (1994): Schriftlichkeit und Recht, in: Hartmut Günther/Otto Ludwig (Ed.): Schrift und Schriftlichkeit. Ein internationals Handbuch interdisziplinärer Forschung. 1st half edition, Berlin/New York, P. 610 ff. Wenzel, Horst (2003): Von der Gotteshand zum Datenhandschuh. Zur Medialität des Begreifens, in: Sybille Krämer/Horst Bredekamp (Ed.): Bild, Schrift, Zahl. Munich, P. 25 Wenzel, Horst (2003a): Vom Anfang und vom Ende der Gutenberg-Galaxis. Historische Medienumbrüche im Für und Wider der Diskussion, in. Lutz Musner/Gotthart Wunberg (Ed.): Kulturwissenschaften. Forschung - Praxis - Positionen. 2nd Edition Freiburg/Breisgau, P. 367 ff. Wesel, Uwe (1985): Frühformen des Rechts in vorstaatlichen Gesellschaften. Frankfurt am Main. Whorf, Benjamin Lee (1963): Sprache – Denken – Wirklichkeit. Hamburg. Wittgenstein, Ludwig (1953): Philosophische Untersuchungen. Oxford.

Chapter 3

The Power of Images

The power of images is nothing new. People have had images since the early Stone Age. But the importance of images has been increasing in recent times. Because modern society is shaped by digital media which are themselves inherently imagebased media. This has consequences for culture and thought.

3.1 Pictorial Turn – From a Culture of Writing to a Culture of Pictures The mass media which shape modern society, are to a large extent pictorial media. The first Personal Computers could be regarded as improved “typewriters”. Only with the expansion of hardware capacity and the boundaries of software did the PC become a multimedia work and communication tool in its own right. The electronic mass media – in particular TV – are in the process of making visual communication ever more primordial. This trend has been picked up and substantially reinforced by the Internet. Communication on the Internet is more and more dominated by images. In any case, visualisation is not a new phenomenon. Back in the 50s of the last century iconomania, or an addiction to images, was diagnosed for the modern world. It is not least the electronic mass media, which are dominated by images, that have driven this development forward in the last few decades, and in fact repeatedly speeded it up. Quite correctly – but not without a degree of scepticism or

Sachs-Hombach (2005), P. 163. Katsh (1995), P. 145 f. Similarly Heidenreich (2005), P. 387, who describes the early Internet as a “text-based medium based on command-lines”. This is why the Internet – as Sandbothe (1998), P. 589 describes – shows strong theatrical aspects: the communication via the net is shaped by pictorially dramatic and staging-like presentations. Anders (1956/2002), P. 56 f. Sauerländer (2004), P. 411, talks in this context pointedly of “electronic idolatry”.


51

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3 The Power of Images

even fear – a pictorial turn has been diagnosed by cultural science. The modern world is now dominated by images, no longer by words. Possibly the pictorial turn will lead to iconocracy. How has this come about? Where does the increasingly strong dominance of images come from? The reasons for the flood of images are manifold. The economic logic of the mass media is certainly a part of it. They have to reach many recipients. That is done more easily with images, which arouse emotions, than with reasoned text. Another cause is the very rapidly growing interconnection and complexity of the world, which creates two separate and even contradictory needs: the need for a reduction in the almost unbearable complexity, and the need for speed. Images seem to be able to satisfy both needs better than text. Images appear to be understandable at a glance and easy to manage. They promise – apparently – simple guidance in a highly complex world which is hard to understand. Complexity and interconnection require ever faster communication. A further, still largely unexplored, reason for the increasing dominance of images is therefore definitely the speed of visual communication. Communication using images on the whole is much quicker than communication using text. So interconnection and complexity seem to be able to be better managed using more rapid communication using images. The triumph of info-graphics in the modern media seems to confirm this theory. Information graphics – or to put it another way: information in graphical form10 – have become a part of both electronic and print media which it is almost impossible to imagine doing without.11 Even public service TV news programmes, which have always been regarded as the bastion of sober, word-based reporting, have recently become much more visual – and emotional.12

This influential concept can be traced back to Mitchell (1994a), P. 12. The term which is now current in the study of the visual arts iconic turn means something different to the dominance of images. Boehm initially talked about the iconic turn (2001a), P. 13, and demanded a hermeneutics of images, which could be separated from the text-heavy iconography and iconology. Sachs-Hombach (2005), P. 163, who does, however, correctly warn about under-estimating the complexity of images. At length on the speed of visual communication see above Chap. 3.5.1. 10 On the concept of the information graphic at length Knieper (1995), P. 3 ff. inter alia information graphics are basically not a new phenomenon. Their history actually begins in the earliest days of human history. The early cave paintings can easily be regarded as information graphics, which tell hunting stories using images. At length on the history of information graphics Knieper (1995), P. 9 ff. inter alia; Pörksen (1997), P. 186 ff., shows that there is a close relationship between information graphics and an increasing importance of numbers and figures. As numbers and figures have become – and are becoming – ever more important, an instrument is needed to make the trenchant content of larger volumes of figures and data quickly visible. Info graphics are such an instrument. 11 In Germany the magazine “Focus” was the first print medium to consistently use info-graphics as a means of serving up information. In media studies info-graphics have been seen since then as an important factor in the success of newspapers and magazines. At length and critically on this Haller (1997), P. 561 ff. inter alia. 12 At length on this Schramm/Wirth (2006), P. 38 ff.

3.2 The End of Writing?

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But perhaps the cause lies much deeper? Possibly all these images that humanity creates serve to help people avoid facing up to their own mortality and limitations?13 The unlimited and unbounded consumption of images does suggest a special, very positive feeling – the feeling of living in a world without social and cultural barriers.14 A different, but also deeper driver for visualification has so far not been discussed much. In the modern media and information society images take precedence over objects.15 It is no longer the physical object, but its media image which determines perception and daily life. This clearly reduces people’s sensory perception and sensual experiences.16 People admire in images, or as images, the things they miss or deny in everyday life.17 Possibly images are – emotionally and sensually – better suited to cancel out the lack of sensual experiences, at least in part, than are texts or words.18 In other words: the less sensual and emotion-filled everyday life is, in the technically ruled information society, the greater the need for images, to balance the emotional and sensory deficits.

3.2 The End of Writing? The visualification of culture has one dramatic consequence: the use of writing becomes relativised. This is true of the Internet19, but also for culture overall. This does not mean that writing will die out as a cultural technology or as a form of communication. Media history research shows quite clearly: new media – however dominant they may be – do not lead to the extinction of the existing forms of communication.20 Rather: they complement and modify the old media, so that the bandwidth of usable media overall is extended.21 That means: no need to fear an end of writing. Writing remains an important factor in our culture. The first steps can be seen already on the Internet. One aspect of visualification which has gained great importance in Internet technology is hypertext.22 Hypertext 13

Thus Anders (1956/2002), P. 57. Similarly also Belting (2005), P. 19. Belting (2005), P. 19. 15 Wahl (2005), P. 482. 16 Similarly Wahl (2005), P. 482 f., who explains this development using the example of email. People who send mails instead of writing letters, are experiencing considerably less sensual input. Another example is TV compared to “real” life. 17 Belting (2005), P. 24. 18 At length on the sensory function of images Schuck-Wersig (1993), P. 103 ff. 19 The greater the progress of language recognition technologies, the stronger the increase in loss of meaning of text in the internet and in the field of computers overall. 20 This is the seminal but still valid insight by Riepl (1913), P. 5, who calls it the “Fundamental law of the development of news communication”. The media history of the 20th century has confirmed this theory. 21 Thus earlier Riepl (1913), P. 5. 22 On the link between visualisation and hypertext Pohl (2002), P. 117 ff. 14

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can be regarded as the visualisation of the spatial structures of information.23 At the same time, hypertexts are also texts, not simple images. The “old” medium of writing still exists on the Internet. But written texts increasingly have a new quality. Typical Internet texts are no longer linear texts but hypertexts.24

3.3 What Is an Image – and What Does It Do? What is an image?25 That is a big question and the answer is very contentious and unclear.26 A single definition of images which is universally accepted does not yet exist.27 Although various attempts at definition can be seen which are each linked closely to the various functions of images.28 The semiotic definition can be used as the lowest common denominator. According to that, images are a special class of symbols29, which fulfil special functions.30 They are symbols of recognition31: their content was not assigned randomly, as is true of words or figures. What images mean depends on their visual recognition by humans. Without taking into account the specific human ability to perceive them, they are not comprehensible. This close bracketing of symbol and recognition is the substantial difference to language symbols.32

23

Pohl (2002), P. 119 f. This turns readers into users. On the change in reading behaviour thanks to hypertexts at length Wenz (2000), P. 24 ff. inter alia. On the linearity of writing and reading Türcke (2005), P. 136. That changes the law. On this Boehme-Neßler (2008), P. 617 ff. 25 Thus a fundamental investigation by Mitchell (1990), P. 17 ff. On this also Röhl (2003), P. 230 ff., who in ibid, P. 239 ff., heightens the need for jurisprudence. On the question as to what a political image is, Drechsel (2007), P. 106 ff., who argues for political science as a science of images. Also and earlier Drechsel (2005), P. 74 ff. 26 Belting (2002), P. 15, who notes that the basic question of an image still needs clarification. At length on the concept of the image also Scholz (2004), P. 5 ff. 27 Sachs-Hombach (2003), P. 73 ff., discusses the development of a cross-disciplinary concept of the image. Although his approach has not yet met general acceptance. On the concept of images in communication sciences Knieper (2005), P. 57 ff. inter alia, in political sciences Hofmann (2005), P. 72 ff. inter alia, in cartography Pápay (2005), P. 87 ff. inter alia, and in computing Nake (2005), P. 101 ff. 28 An overview of the different concepts of images is given by Fellmann (1998), P. 188 ff. inter alia, and Marion Müller (2003), 18 ff. 29 Images and symbols are no longer viewed as thoroughly contrasting phenomena. On this Belting (2005), P. 133 ff. inter alia. But it is not without disagreement. On this Schulz (2005), P. 78, with proof from the opponents. 30 Similarly Fellmann (1998), P. 189; Schelske (1998), P. 63 inter alia. On the classification of images using theory of symbols Eco (2002), P. 246 ff. 31 Thus the basic concepts from Sachs-Hombach (2003), P. 73 ff. On the importance and criticism of this pictorial semiotic approach Schulz (2005), P. 82 ff. 32 Sachs-Hombach (2003), P. 86 f.; Kruse (2003), P. 40 ff. 24

3.3 What is an Image – and What Does It Do?

55

The many facets it may have, and the lack of clarity in the concept of an image, relects the functions of images which are equally manifold.33 What is involved therefore in the production of images? Generally and fundamentally in images we are talking about visualisation.34 Using images, the world can be presented as meaningful and impressive. You understand better what you have had a look at. Does this already answer the question “What are images for?” Of course not. Cultural science allows us to dig deeper. The production of images is shaped by the fear of forgetting.35 Images are created so that people and cultures remember. So images are used to compensate for the biologically determined inability of humans to bequeath memories to the next generation. As shown by a cultural anthropology view of the history of images, this memorial function does not provide the whole answer to the question of why people have produced images since earliest times. The underlying reason for why images are so important to humans lies in the recognition of mortality and the fear of death.36 To state it briefly: images are an attempt to achieve immortality.37 Therefore the longing for images is particularly intense when people experience absence.38 Whatever or whoever is not present, needs to be represented – by an image. So images are an attempt by humans to establish contact with what is absent or has disappeared. On a more secular level, over the millennia that images have existed, various specific and practical functions of images have clearly emerged. Depending on their functions, we distinguish different types of images.39 The original and oldest function of an image is to be a copy.40 This function of representational images41 can already be shown in prehistoric rock paintings.42 The bandwidth of representational images is marked by two extremes. One typological pole is formed by the trueto-life images of illusionist painting, which aim for the most exact representation

33

Sachs-Hombach (2003), P. 262 ff., develops a system of different functions of images. Sachs-Hombach (2005), P. 169, identifies the “visualisation as the basic function of pictorial presentation”. 35 Kruse (2006), P. 17. 36 This is the theory developed by Belting (1996), P. 92 ff. He is joined by Kruse (2003), P. 87 f. inter alia. 37 Kruse (2006), P. 29 talks in this context of “survival in images”. 38 Assmann (2001), P. 61. 39 On the total necessity of an image typology Plümacher (2005), P. 132 ff. inter alia. 40 At length on the representational function Plümacher (1998), P. 52 ff. inter alia. Critical and questioning on the concept of the representation Goodman (1997), P. 15 ff. On the function of representation in general Arnheim (1980), P. 134 ff. 41 At length on the history and a system of representational images Sachs-Hombach (2003), P. 192 ff. 42 On this Lenssen-Erz (2005). P. 163 ff. inter alia. That rock painting also no doubt had religious functions, going way beyond the representation, is the current state of research. On this SchuckWersig (1993), P. 55, 65 inter alia, and Lenssen-Erz (2005), P. 166 f. inter alia. Thus particularly Leroi-Gourhan (1988), P. 240, who sees cave painting as symbolic presentation, similar to writing, not as representation. Generally on rock paintings Haarmann (1991), P. 22 ff. 34

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possible.43 At the other end of the spectrum are images with the absolute minimalist form, which restrict themselves to the presentation of only what is absolutely necessary. Examples of this are ideograms44, mythograms, hieroglyphs or icons.45 Images can – this is a further role – provide instructions.46 Images quite frequently pursue instructional goals. Instructional images are traditionally found in the area of religion and worship.47 And the law also seized early on the instructional potential that can be found in images. A particularly impressive example for images being used to give instructions is the Sachsenspiegel, a mediaeval German legal code.48 Modern and secular examples of instructional images are pictograms,49 traffic signs, and other public signage which give instructions or state prohibitions. Techno-images50 are a further important category of images. Structures, relationships or dynamic processes are often understood more readily when presented as maps, diagrams models, building plans or computer simulations. Projection to help clarify is therefore another important goal of images.51 Techno-images can be a vital aid for understanding theories, models or data. The reason for this is simple: individual pieces of data and structures can generally be assimilated more easily visually by people than through rows of numbers or description by language.52 Particularly in medicine these images are used in diagnostics and in surgery.53 But the documentation function of techno-images is limited in two respects: non-visual aspects of recognition such as e.g. temperature, sound54 or smell cannot be included in images.55 And the images need to be “read” and interpreted. That only works if 43

Sachs-Hombach (2003), P. 192 ff. Particularly well-known ideograms are the Emoticons which are used in online communication. At length on this Roessler (2000), P. 511 ff. inter alia and many examples. 45 Sachs-Hombach (2003), P. 196 ff. inter alia. Whether pictograms belong to this category, as Sachs-Hombach (2003), P. 197, assumes, is doubtful. They are better classified as instructions. 46 Plümacher (1998), P. 51. Schuck-Wersig (1993), P. 80, talks vividly about “images as orientation guides”. 47 At length with a host of examples on this Belting (2000), P. 54 ff. 48 See on this the striking proofs from Kocher (1992). 49 Plümacher (1998), P. 54. Scholz (2004), P. 131 sees pictograms as a border-line case between images and language symbols. At length on the semiotics of pictograms Blanke and others. (2005), P. 149 ff. inter alia. On the difficulties of creating internationally understood pictograms Brugger (2005), P. 35 ff. 50 This expression coined by Flusser (2007), P. 97, 137 ff. 51 Plümacher (1998), P. 55 f. 52 Sachs-Hombach (2003), P. 264 ff. inter alia, talks in this context about the cognitive function of images. In detail on this, how maps are perceived and “read” by people, Arnheim (1986), P. 195 ff. 53 On image-based medicinal diagnosis and surgery Peitgen (2004), P. 151 ff., and Boehm (2007), P. 109 ff. 54 This does not apply without some restrictions. It is increasingly being attempted to make images audible. An example of this is the project “Atomic tone worlds”: The crystallographic arrangement of atoms is made visible and audible at the same time. On this Heckl (2004), P. 129. 55 Plümacher (1998), P. 55. 44

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you know what causes create which images.56 Photographs, X-rays, ultra-sound images, neuro-imaging scans57 or other similar58 techno-images are created by causal mechanisms.59 If you know the link between cause and effect then you can deduce the realities which the images are documenting.60 A doctor can reach many conclusions from an X-ray image, to a layman it says nothing. Thinking via images – that is the meaning of reflective images, a further type of image. Here we are talking about artistic, expressive products of the human mind61, which do not – at least not primarily62 – aim to be a representation. Reflective – or non-representative – images use pictorial means to present ideas, thoughts, reflections.63 Examples of this are religious images64 not only from ancient times, and the hieroglyphic calligraphy of the Renaissance, used to transmit mystic-esoteric interpretations.65 Not least, reflective images have an aesthetic function.66 Images can and should generate aesthetic responses. They are an important “artistic language”.67 In analphabetic societies, or those where few are literate, images have an important complementary function. They reinforce words. They appear as a supplement to the oral or written texts.68 They make the subject and intentions of what is being said or written visible and so significantly strengthen the communicative effect. A notable historic example of this: the spread of the Reformation in the sixteenth century shows how the spoken word, written text and painted images can combine with optimum communicative power.69 And the coats of arms which were a very popular art form in baroque times exemplify this. Their typical combination of 56

The classic example from everyday life is the doctor, who “reads” and interprets X-ray image or computer graphics. 57 At length on current methods of neuro-imaging Hüsing/Jäncke/Tag (2006), P. 5 ff. 58 A particularly clever example of documenting reality through images is the scanning tunnelling microscope. On this Heckl (2004), P. 136 ff. 59 Weibel (2004), P. 226 talks in this context of epistemic images in contrast to mimetic images in art. 60 Plümacher (1998), 54 f. An informative example can be found in Liebert (2007), P. 176 f.: From the various degrees of shading on an ultrasound image an expert can interpret the presence of triplets as early as the 8th week of pregnancy. 61 Thus Mitchell (1990), P. 56. 62 Representations are also found in reflective images, without them being the primary intent. On this Sachs-Hombach (2003), P. 208. 63 Similarly Sachs-Hombach (2003), P. 208 ff. Schuck-Wersig (1993), P. 89 ff., talks in this context about reflections with identification and projection functions. In terms of content this is like reflective images. 64 On this Belting (2000), P. 11 ff. inter alia 65 In detail on this Müller (2007), P. 83 ff. with impressive examples. 66 Plümacher (1998), P. 56 f. inter alia 67 At length on images as a language of art Goodman (1997), P. 183 ff. 68 Müller (2007), P. 72. 69 Illustrated by Müller (2007), P. 72 ff. with examples from the tendentious literature of the Reformation.

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Motto, Pictura and Subscriptio provide an interaction of graphic and text elements which illustrate each other and combine in new levels of meaning. The more that Western society became literate, the more images lost their supporting role. Quite often it was forgotten that the text-image combination usually worked more powerfully, even when the recipient was well able to read.70

3.4 Copy or Construct: How Are Images Received? Neuro-science71 in the last few years has achieved greater knowledge of how images are perceived, processed and stored by humans. The neuro-physiological and cognitive-psychological specificities explain – not totally, but to a great extent – the characteristic properties of visual communication. So it is worth taking a look at neuro-physiology and cognitive psychology to better understand visual (legal) communication. Modern72 neural sciences do not see perception and recognition just as passive recordings.73 Human perception is not an isomorphic copy of some or other form of reality.74 It is absolutely not just a question of passively recording an “objective” world and creating a copy in your head.75 Neuro-psychology can prove empirically that perception using the senses is, on the contrary, an active process by means of which a person relates to their environment.76 What does that mean in detail? Retinal images are not unambiguous, they are capable of many interpretations.77 In order to make unambiguous perceptions of real objects out of ambiguous retinal images the human cognitive functions work with assumptions about reality.78 Every act of recognition and perception either confirms or refutes an assumption which someone holds about the world.79 Perception and recognition are the result of highly complex processes of construction and interpretation, which are heavily based on individual,

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At length on the communicative effect of text-image combinations see below Chap.3.8.3. On this Singer (2004), P. 63 ff. 72 Already in the 19th century the physicist Helmholtz had formulated the discovery that images only arise thanks to perception by the observer. Unlike what seems to be the case in everyday experience, the impression received by the viewer is not the expression of the item being viewed. This insight was only rediscovered by modern neuro-sciences empirically in the last few decades. At length on this Frey (1999), P. 43 ff. inter alia. 73 On this Pöppel (2000), P. 74 ff. Goodman (1997), P. 50 talks in this context about the “reversed presentation” of a process similar to reflection in a mirror. 74 Goodman (1997), P. 50, assumes a symbolic relationship between reality and signs. He sees this in contrast to a physical reflection or copy of reality via a sign. 75 Messaris (1994), P. 118 f. 76 Pöppel (2000), P. 76. 77 Gregory (2001), P. 251. 78 At length on the theory that perceptions (confirmed or falsified) are assumptions, Gregory (2001), P. 26 ff, 253. 79 Pöppel (2000), P. 76. 71

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subjectively coloured, stored prior knowledge.80 At a basic level: what is behind the reflected light which arrives at your retina – a nice person who wants to say hello, or a rabid dog getting ready to leap on you? You need life experience and complex cognitive processes to know this. This approach is consistent with the most recent results of brain research.81 Neuro-biology views the human brain as a highly active, self-referencing system, that builds a coherent image of the world from the sensual stimuli which it receives. The brain designs – in other words – a model of the world, then compares the incoming signals with this model and looks for the most plausible solution.82 In brief: human cognition is based on probability calculations and inferences.83 This finding can be extrapolated constructively. As people recognise the world, they also simultaneously create this world inside their head. Perception and recognition therefore mean construction. Reality is not what it really is, but rather what people believe84 to be true. This fundamental recognition by neuro-biology can also be applied to the perception of images. Images are not passively recorded. Perceiving images is instead an active construction of images.85

3.5 Images as Tools for Communication Images have – this is a truism – different attributes to words and language. Visual communication is therefore clearly different from either oral or written communication. Above all inter-disciplinary image research over the last few years has unearthed the specific properties of visual communication.86 What are these specific characteristics of communication using images?

3.5.1 Hurry, Hurry – The Speed of Visual Communication High speed – that is typical for communication via images. Images are absorbed substantially quicker than words by the brain.87 Cognitive psychology has deciphered 80

Singer (2004), P. 65. Gregory (2001), P. 253. On this Singer (2004), P. 67 ff. 82 Singer (2004), P. 75. 83 Thus summarised very pointedly and tendentiously Singer (2004), P. 75. 84 Merten (1997), P. 22. 85 On this also Weidenmann (1994), P. 29 f. inter alia. This view also has a neuro-physiological basis. The retina on which images are focussed is not, unlike photographic film, a passive recipient of images. It actively converts images using several hundred million specialised cells which work in parallel. At length on this Hoffman (2001), P. 96 f. 86 An overview is supplied by Kroeber-Riel (1996), P. 25 ff. 87 Kroeber-Riel (1996), P. 53 f. inter alia. This is illustrated physically with the Theory of the missing half-second: The recipient is then missing – compared to non-medial reception – about a half a 81

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the mechanism which underlies this phenomenon: the extremely rapid registration and processing of images is achieved by use of automated and schematic perception processes in the brain.88 The optical stimuli received are – to simplify substantially – compared at lightning speed with patterns and schemas stored in the brain89 for contexts and objects, and are then classified.90 What is important here: this recognition and construction process is run automatically and can barely be controlled by cognitive thought.91 The first impression arises – in other words – quickly, spontaneously and out of our control. Only later is the image processed fully by a complete neuro-physiological process.92

3.5.2 Looking at Images – Visual Communication Is Concrete People have two basic options of dealing with reality, with nature and with themselves: they can approach reality physically or in the abstract.93 What is the difference between these two approaches? In a general sense, physically here means using the senses to perceive materials, abstract means using the mind to perceive categories.94 In this sense images per se are physical, but words in turn are abstract.95 Unlike words, images can always be assimilated by the senses, normally by the sense of sight.96 On this basis we can also distinguish two ideal-typical forms of thinking: abstract/conceptual and plastic/visual thinking.97 second, used to adjust to the content, which are received via image media. This has an influence on the cognitive processing and emotions are in the forefront. At length on this Sturm (1984), P. 61 ff., who provides empirical evidence for this theory. 88 Seminal on this Abelson (1981), P. 715 ff. At length on the state of research in cognitive sciences Weidenmann (1994), P. 28 ff. 89 Cognitive psychology talks in this context about “scripts”, which represent cognitive structures. On this Abelson (1981), P. 716 ff. inter alia, and Zimbardo (1992), P. 292 ff., 313 inter alia. At length on the function of schemas for human thought and perception Aronson and others (2004), P. 62 ff. 90 On this Weidenmann (1994), P. 29 inter alia, who talks about a “matching process” between the optical stimulus and the acquired or developmentally historical schemas available, and Berendt (2005), P. 26. Recognition of images using existing schemas is also used in developing artificial intelligence. On this earlier Abelson (1981), P. 715 f. 91 At length on this Weidenmann (1994), P. 28 ff. inter alia, who stresses the importance of the mental schemas which are already present for the so-called pre-attentive reception processes. 92 Cognitive psychology refers to this process as top-down processing. On this at length Spoehr/ Lehmkuhle (1982), P. 166 ff. inter alia, Weidenmann (1994), P. 32 ff. inter alia. From a theory of symbols point of view on this Eco (2002), P. 205 f. 93 Doelker (1989), P. 33. 94 Doelker (1989), P. 33. 95 Doelker (1989), P. 173. 96 Doelker (1989), P. 33. In this sense abstract images are concrete, or able to be assimilated by the senses. The fact they do not represent objects does not change that in any way. 97 Seminally on thinking in images and visual thinking, Arnheim (1980), P. 101 ff.


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Physicality always implies individuality.98 A painted or photographed portrait is much more individual and less interchangeable than a verbal description of a person. This is certainly one of the reasons why images are very much tied to faces.99 Thinking in images is strongly personalised thinking. Whenever you think in images, you think not only in physical categories but also in faces. That the presentation of faces has always been an important theme for art can be explained by this.100 Television, as an image medium par excellence, therefore needs to work a great deal with faces, and does do so.101 In this modern, image-dominated society representations of faces are therefore omnipresent.102 This is also the reason why celebrity has become an ever more important factor in media reporting. The phenomenon of celebrity and media is not new.103 The focus of the media on well-known people has, however, increased considerably since the 1970s.104 Why? Celebrities offer their faces to the image-based media which (may) catch the attention of consumers.105 The physicality of visual communication – is it a strength or a weakness? It is both. Thinking in images is visible.106 Its main strength is that the thoughts and the person are closely linked to reality.107 Pictorial, concrete thinking therefore prevents a loss of touch with reality. Abstract thinking, on the other hand, tends to dissociate concepts from reality. The abstract concepts can then take on a life of their own, without any regard for or relation to reality. This is a threat for jurisprudence thanks to the – sometimes irresistible – siren song of abstraction. Thinking in images can help the law not to lose the necessary grip on reality. That images are physical does, however, have some disadvantages. Thinking in images is therefore limited. Abstraction is a proven method of fighting against irrationality. Generalisations, systematising and general rules – i.e. abstractions – explain the world – and make it – perhaps only apparently – manageable. What happens in reality can be explained – although not always – on the basis of abstract reflection. Without such generally applicable patterns of explanations, people 98

Doelker (1989), P. 174. Thoroughly on the basic communicative function of faces Eibl-Eibesfeldt/Sütterlin (1992), P. 371 ff., and Landau (1993), P. 145 ff. Later research has revealed how important mimicry is for the creation of empathy. On this Adam (2004), P. 137 inter alia. As far back as Charles Darwin who stressed the importance of the face for the expression of emotions: Darwin (1872/1998), P. 33 f. and pass. 100 At length on the presentation of the face in art Eibl-Eibesfeldt/Sütterlin (2007), P. 348 ff. 101 At length on faces on television Schulz (2007), P. 290 ff. 102 Macho (1996), P. 87, who therefore talks about a “facial society”, “which produces an endless series of faces”. In the early days of art the representation of faces was still very rare. At length on this Eibl-Eibesfeldt/Sütterlin (1992), P. 298 ff., and Macho (1996), P. 93. 103 Schierl (2007), P. 98 inter alia 104 This is shown by Schierl (2007a), P. 19 ff., in a wide-ranging empirical study. 105 Ringlstetter et al (2007), P. 125 f. inter alia. Schierl (2007), P. 98, reduces it to the slogan: Celebrity sells. 106 Arnheim (1980), P. 197. 107 Arnheim (1980), P. 197 f. 99

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would fall back more often on irrational interpretations. Then we would be dealing with secret, unpredictable, unintelligible forces which rule the way the world works. A simple example: a thunderstorm can be explained rationally with the help of abstract laws of nature. Or irrationally, with a concrete story in which a god gets angry and throws bolts of lightning. Seen from this point of view, cultural history is a process of increasing rationalisation and abstraction. Images also facilitate a closed-world assumption.108 Images suggest that they are complete: anything which is not visible in the image apparently does not exist. That too is a limitation – albeit one that can be overcome – of thinking in images.

3.5.3 I See – The Subjectivity of Visual Communication That the perception of an image is deeply subjective has been known for a long time. Every image is perceived differently by each person who views it. To put it another way: the observer’s contribution109 to the perception and interpretation of images is substantial. This is hardly surprising if you take into account the neuro-physiological basis of the perception of images.110 Perception of images does not mean mental copying, but mental construction. Images are perceived by the observer constructing an image in their cognitive system from the visual stimuli they receive. This construction is shaped by the subjective features which make up the observer. The observer of an image – in other words – contributes to every image that they perceive, some elements from their own supply of images, stored in their memory.111 Does the strong subjectivity in the reception of images have consequences for communication using images? Of course: it makes visual communication extremely difficult. Because communication can hardly be envisaged without a minimum of objective, shared symbols or codes. And precisely this common store of objective symbols is much smaller with visual communication than it is with written or oral communication. Obviously visual communication is still possible nevertheless. Why is this the case? Biological and cultural rules for the interpretation and construction of images compensate for this lack, although only in a limited way. These rules lead to a limited objectification and so to comparability in the construction of subjective mental images. To put it another way: the rules increase the number of available, common, objective, visual symbols. This creates a common basis on which communication using images can be based – in spite of all the subjectivity. What rules are these?

108

On this Berendt (2005), P. 25. On this Gombrich (1984), P. 142 inter alia. 110 At length on this see above Chap. 3.4. 111 Gombrich (1984), P. 142 inter alia talks in this context about observer input. 109


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Even if the construction of images is different in each observer: there are biologically based, generally applicable rules which apply to all people when they look at an image.112 A simple but fundamental example for a rule like this is: straight lines in an image will always be interpreted and constructed as straight lines in a three-dimensional space.113 Another, clearly more complex construction rule is: gradual shading of colour tones, chroma and shades in an image are interpreted as changes in lighting.114 These construction rules for images which are shared by all people reduce the subjectivity of image reception. Certain visual stimuli are therefore – thanks to biological conditions – interpreted in specific, similar ways. As well as the biological ones, there are also cultural rules for construction of individual images. Because visual communication would otherwise be impossible, societies have always developed rules on how to interpret and construct images. Only an iconographic analysis and a deeper iconological interpretation can reveal the total meaningful content of images.115 Both of these – iconography116 and iconology117 – are based on cultural content. Without specific knowledge of cultural history, without knowing cultural figures, fables, histories and allegories it is barely possible to completely understand sophisticated images. Examples of this are Greek mythology or the Christian tradition. Both prescribe “rules” on how certain images are to be interpreted and constructed. That these rules are different from one culture to the next is an important reasons for the substantial problems and difficulties of cross-cultural visual communication.

3.5.4 Excursus: Collective Memory One of the cultural factors which influences the understanding of images is col lective memory.118 For no-one’s individual memory exists in a vacuum. It is influenced by the whole material and intellectual life of the society119 – so also by its 112

At length on this Hoffman (2001), P. 19 ff., who derives a whole series of individual detailed construction rules. 113 Hoffmann (2001), P. 47. 114 At length on this Hoffmann (2001), P. 141 ff. inter alia 115 On the importance of iconography and iconology as methods of image analysis, Panofsky is seminal (1939/1978), P. 38 ff. 116 At length on iconography Panofsky (1939/1978), P. 39 f., although he, ibid., P. 42 also stresses the limits of this method. 117 Seminal on iconology Panofsky (1939/1978), P. 40 ff. 118 Seminal on this Halbwachs (1985/1925), P. 71 f. and pass. who has developed the paradigm of collective memory. Going further Hirst/Manier (2002), P. 40 ff., who refine the concept and attempt a systematic classification of different collective memories 119 Halbwachs (1985/1925), P. 71 f.

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collective memory. Individual memories are always bound to memories which are shared by a group, a society, a culture.120 Does this have an objectivising influence on the reception of images? At first sight you would tend to assume this. Because the subjective individual memory is extended and modified by collective memories. But in fact this does not cause any greater objectivity. Because collective memory itself is not objective. It is the distillation of many individual, but also subjective, memories. And the sum of many subjective memories is not an objective memory. In addition: how collective memory influences the memories of individuals also depends on the deepest subjective attitude of the individual.121

3.5.5 I mages Are Touching – The Emotionality of Visual Communication Images and emotions – that is an inseparable combination. Images work directly on the emotions. Much more strongly than words.122 Images and pictorial media speak with their very own power of suggestion to the emotions of the beholder and create immersion effects.123 They have an almost oppressive presence, which one can only escape – if at all – by actively looking away.124 That gives them an advantage effectwise over other media: affectively intensive media automatically gain attention.125 In other words: anyone who wants to get a lot of attention and make a strong im120 Saar (2002), P. 271 describes cultures as “communities of memories” for this reason. An excerpt from collective memory might be the European “image bank”, that Warburg reconstructed in his Mnemosyne project. At length on this Warburg (2003), P. 3 ff. A special role is played in the constitution of collective memory by (image) archives. On this Drechsel (2005), P. 106 ff. inter alia 121 Halbwachs (1985/1925), P. 62 f., stresses that each individual reconstructs his memories. And the reconstruction is of course individual and subjectively coloured, even if elements of collective memory are included. 122 Doelker (1989), P. 178 f. inter alia; Meyer u. a. (2000), P. 133 inter alia; Kroeber-Riel (1996), P. 63 ff. inter alia; Schuster (2003), P. 24 ff. inter alia; Leroi-Gourhan (1988), P. 264, stresses in this context that writing – unlike images – is much less suitable for expressing irrational moments. 123 Grau (2005), P. 99, represents this pointedly, who discerns an increase in suggestiveness as the motivation and main goal if developing new image media. This is particularly obvious in films: their commercial success is determined by how strongly they can stir up and control emotions in viewers. On this Eder (2005), P. 107 ff. inter alia. A brief overview on the research into emotional effects of the media from Schramm/Wirth (2006), P. 29 ff. inter alia 124 Frankenberg (2004), P. 2, who sees in this the decisive difference to written texts. 125 Keil (2005), P. 138. Schramm/Wirth (2006), P. 39 inter alia confirm this with empiric studies for television news programmes: emotional images in the news programmes are perceived more attentively than reports with non-emotional topics. Although the effect of various images differs in capturing attention. Not every image captures attention with the same intensity. The attention factor is also reduced again by the effect of habit. At length on the interaction between media development, attention and habit Grau (2005), P. 71 inter alia. Television is a particularly emotional electronic mass medium. At length on the reasons for and implications of this fact Meyrowitz (1990a), P. 207 ff.


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pact has to use images.126 There is of course nothing new in that.127 The emotional effectiveness of images has always been used in various ways. Particularly crass examples of this are political propaganda128 and advertising.129 More subtly, images are employed to create emotions in films130 and in the theatre131. Television – the image medium par excellence – also works heavily with feelings. Television is to a large extent affective viewing.132 Why do images generate (strong) feelings in observers?133 The neuro-physiological causes for the strong emotionality of images remain mainly unresearched.134 So far anthropological, phylogenetic attempts have been made to explain it.135 Evolutionary biologists stress that rapid and intense – so emotional – reaction to environmental visual stimuli was an important survival mechanism in early human pre-history.136 Visual stimuli were warning humans about threats before language or certainly writing were even known. The evolutionary biological argument is not the only one: neuro-biology and cognitive psychology offer further explanations for the emotional power of images.137 126

This is increasingly also being confirmed by cognitive psychological and neuro-physiological studies. On this Keil (2005), P. 139 ff. inter alia. The medium that has developed into the imagedominated medium par excellence, is television. Because images are particularly well suited to capture attention that is only logical. Without images television could not win in the battle for the attention of viewers and so survive economically. 127 Informative on this Belting (2000), P. 11 ff., who ascribes the power of images mainly to the fact that they affect deeper layers of human personality than do words. 128 On the power exercised by images Heinz (2002), P. 73 ff. inter alia. A striking – and revolting – example of this is the strategic use of images in war. On this Lohoff (2007), P. 106 ff. inter alia, and Müller (2005), P. 405 ff. inter alia. Another, equally revolting example: the Nazi regime used film deliberately for propaganda purposes. On this for example Ecke (2002), P. 54 ff. inter alia, and Isensee (2002), P. 70 ff. inter alia. Generally on the relationship between images and politics Lesske (2005), P. 236 ff. inter alia 129 Advertising aims directly at creating specific feelings in the viewer and at influencing their behaviour through this. Informative on this Kroeber-Riel (1996), P. 155 ff. On the instrumentation of emotions through advertising from a social psychology viewpoint Aronson et al (2004), P. 257 ff. inter alia 130 An overview of research into emotion in films and television is provided by Schramm/Wirth (2006), P. 38 inter alia. At length on manipulating emotions in films Eder (2005), P. 107 ff. inter alia 131 On the creation of emotions in the theatre through acting, gestures, body movements and postures at length Fischer-Lichte (2003), P. 48 ff. inter alia 132 On emotional television Bente/Fromm (1997), P. 19 ff. and pass. 133 On this generally Keil/Eder (2005), P. 224 ff. inter alia 134 This is not least due the fact that the definition of emotions and the way they work is highly controversial. At length on this Zimbardo/Gerrig (2004), P. 552 ff. inter alia. Generally on the neuro-physiology of emotions Roth (2003), P. 290 ff. inter alia 135 On this for example Doelker (1989), P. 102 ff. inter alia 136 Merten (2003), P. 38 inter alia. At length on this Koenig (1975), P. 74 ff. inter alia; Eibl-Eibesfeldt (1997), P. 62, with many examples from empirical observations and experimental studies. 137 On the cognitive psychology of the emotions as an overview Schramm/Wirth (2006), P. 28 inter alia, and Zimbardo/Gerrig (2004), P. 556 f. inter alia

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The emotionality of images is linked to the mechanism mentioned above, by which images are registered and processed. Images are not created as an emotion-free isomorph. They are constructed by the brain.138 The “construction materials” for this are mainly the visual stimuli received from the surroundings, and individual prior knowledge which is already stored in the brain. Both are strongly coloured by subjectivity and emotions. Just because of this, the construction process and the result of the construction may be influenced by emotions. The relationship of cognition and emotion, of awareness and feeling is an important theme for various sciences which deal with emotions and cognition.139 The burning question so far is: does cognition precede the emotions and cause them140, or is it used to define emotions which have already been triggered?141 Or in a nutshell: which comes first – cognition or emotion? The controversy has been going on for more than 100 years around these two extreme positions.142 In the meantime these alternatives have more or less been dropped. At present the floor is held by many modified, more complex, models for the behaviour and interaction between cognition and emotion.143 And even if the state of research is a long way from solving the problem, there are some striking new results. More recent insights from experimental research on cognition makes it clear that emotions can arise quite independently of awareness.144 That means: environmental stimuli can lead to emotional processes, without the person consciously noticing them.145 The emotions are independent of awareness.146 That does sound frightening: human awareness is not always in a position to control the emotions. In many case it doesn’t even “notice” if and why emotions were aroused. What does this realisation mean for visual communication? Communication using images is clearly more emotional than verbal communication. Emotional processes are less easy to consciously steer. This inevitably leads to the conclusion: visual communication is – at least potentially – less aware, less controlled and more difficult to manage than verbal communication. This finding is reinforced by a fur138

At length on this see above Chap. 3.4. Details on this, how this topic is discussed in Emotional Psychology, referred to by Merten (2003), P. 104 ff. inter alia. 140 This is argued – with differing emphasis – particularly by cognitive emotional theories. On this Schramm/Wirth (2006), P. 28 inter alia. 141 Zimbardo/Gerrig (2004), P. 554 ff. inter alia. 142 LeDoux (2004), P. 47 ff., traces the discussion. 143 At length on the state of research LeDoux (2004), P. 52 ff. inter alia; Zimbardo/Gerrig (2004), P. 556 f. inter alia. 144 Seminal for this recognition Zajonc (1980), P. 151 ff.; Zajonc (1984), P. 119 ff. At length on this Zimbardo (1992), P. 388; LeDoux (2004), P. 58 ff. inter alia. For psychoanalysis this is not a new discovery. What is new is the empirical-experimental proof of the psychoanalytic theory. 145 Thus succinctly LeDoux (2004), P. 59. To this extent the new research findings confirm Sigmund Freud’s theory of the power of the unconscious. 146 Thus very decisively Zajonc (1984), P. 121. 139


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ther empirically supported discovery from the psychology of perception. Visual stimuli are much stronger if they are perceived subliminally.147 This effect is used and exploited not least in marketing.148 Communication with and through images is therefore more emotional. What does this mean for its effect on the parties to the communication? Their emotiveness makes the visual communication stronger, more persistent and more immediate. That images – at least potentially – act more strongly than words, is not new information. Even a short glance at the history of religious images shows us this.149 In more recent times, this realisation gained support from empirical research on the acquisition of knowledge using text and images. We can understand and retain texts much better if (meaningful) images are attached to them.150 Information and events which are linked to emotions are fundamentally151 better stored in memory, in more detail and for longer.152 This finding has in the meantime been amply supported empirically by perceptive psychology.153 Their emotionality makes images more impactful: they are stored in memory better and for longer. That is also something that has been known for a long time. Canonic images have been shaping thinking for centuries and can scarcely be changed or replaced.154 Examples for this are perhaps the image of the family tree of the origins of mankind or the image of the double helix of the human genome.155 The persistence of images is however, not without its problems.156 Canonic images quite frequently develop their own dynamics and shape thinking and memories, quite independently of whether they describe reality correctly at all. The plausibility of images is potentially greater than that of just words or text. In particular long lasting changes of opinion are more likely to be achieved with the 147

Seminal on this Bornstein (1992), P. 191 ff. On the history of research into perception LeDoux (2004), P. 64 ff. inter alia. 148 LeDoux (2004), P. 62 f. inter alia. Informative on this Kroeber-Riel (1996), P. 155 ff., who translates discoveries about the psychology of perception about unconscious perception into concrete marketing strategies. 149 On this Belting (2000), P. 11 ff. inter alia and many examples. 150 Weidenmann (1998), P. 243 inter alia. Similarly, but with different nuances on an empirical basis Brosius (1993), P. 113, for the special case of news programmes with images. Images have always been used to memorise content better. At length on memorising functions of images in the early modern era. Müller (2007), P. 75 ff. inter alia. 151 The recognition that emotions improve storage of memories does not just apply across the board. On the finer details of this discovery with empirical studies Schramm/Wirth (2006), P. 40 f. inter alia. An opposing example is news programmes. In this case information which is linked with emotional images is not significantly better remembered. On this Brosius (1993), P. 114. 152 This becomes particularly clear with traumatic events. On this Schramm/Wirth (2006), P. 40 inter alia. 153 Weidenmann (1998), P. 243 inter alia with meta-analysis of empirical studies. At length on the effect of emotions on cognitive functions Zimbardo/Gerrig (2004), P. 560 f. inter alia. 154 On the effect of canonic images Pörksen (1997), P. 99 ff. inter alia. 155 These examples are from Pörksen (1997), P. 112 ff. inter alia. 156 Very critical on this Pörksen (1997), P. 115 ff.

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help of emotions and images than with straightforward words and arguments.157 The persuasive power of images can be seen perhaps in the importance of television since the mid-twentienth century for society and for politics.158 Not least, it is images which decide elections and so distribute power in democracies.159 It is not just soldiers, weapons or strategies, but also images which influence the outcome of wars.160 From its high emotional content we can deduce another important characteristic of visual communication: images get closer to people than does text. Communication through images on the whole keeps less distance than language-based communication.161 In particular images which are transmitted using electronic media, reduce the (cognitive) distance between the observer and the observed.162 Unlike communication using writing and text, visual communication is therefore characterised by lack of distance. But looking at images is de facto a second-hand experience. Although frequently it also becomes a first-hand experience.163 The reason for this is obvious: because of their emotional content, images have an effect – not always and necessarily, but frequently – independent of people’s awareness. Awareness is, however, what creates distance between a person and their surroundings. Critical distance towards images is therefore particularly difficult. That is an important source of the “power of images”. At the same time this is an important source of the problems and risks of visual communication. Looking more closely, this finding becomes even more complicated. Because images do not just reduce distance. They also mediatise the experiences people have. What that means is: events are no longer experienced directly, but instead via images and media. Apparently paradoxically, the images of the mass media transmit the – completely illusory – feeling of being part of the event – as an eye witness. Even if the event is not being seen live, television in particular generates

157

Thoroughly on the importance of (good and bad) arguments in persuasive communication Aronson et al. (2004), P. 239 ff. With proofs from empirical studies. 158 Meyer et al (2000), P. 133 f. The German constitutional court also stresses the special effectiveness of TV images. In BVerfGE 90, 60, 87 they talk explicitly about the greater range, nearness, plausibility and suggestiveness of TV images. 159 At length on this Kepplinger (1987) and Kepplinger/Maurer (2001), P. 118 ff., based on an empirical analysis of the parliamentary elections in 1998. 160 On this Sontag (2006), P. 23 f. An impressive example for this is the famous press photo in 1968 from the war in Vietnam, where the police chief of Saigon kills a supposed Vietcong-fighter close up with a shot to the head. This photo was known in the US as the “photo that lost the war”. On this Perlmutter (2003), P. 3 inter alia 161 On the lack of distance of animated TV images generally Meyer u. a. (2000), P. 134. 162 Referred to explicitly by Meyer et al (2000), P. 73. 163 Grittmann (2003), P. 139 with the example of press photography. But it applies equally to (almost) all kinds of images. Similarly Sontag (2006), P. 10: “Photography means taking possession of the object you photograph”.


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the illusions of liveness.164 What this implies for communication is still not clearly understood. Possibly experts in theatre could help here. Because they have already been looking for some time at the question of how the joint presence of actors and spectators affects the reception of the communicated contents.165

3.5.6 W hat Is the Painter’s Message? The Ambiguity of Visual Communication Images are fundamentally more ambiguous and open than words.166 The obvious ambiguity of an image has implications for visual communication. It explains some of the strengths but also some of the obvious weaknesses of visual communication. Are images actually more ambiguous and open then words and language? Initial appearances speak strongly in favour of this. Nevertheless this question is the subject of much controversy. Film studies in particular stress that the language of images is just as determined and constrained by convention and social-cultural factors as the language of words.167 Just like the language of words, the language of images has to be learned and absorbed.168 There are said to be special visual codes, which are built up in the same way as language codes.169 There are many differences of detail between visual and language codes. But this approach does not see any differences in principle. This point of view is attractive. But it falls short, because it ignores the fundamental difference of principle between images and language symbols. The difference is in the “iconic character” of an image: the – more or less evident – similarity between the representation and what is being represented.170 A word in general171 has no similarity to the thing it designates. An image on the other hand is tied to

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On “Liveness” on TV Meyrowitz (1990a), P. 239 ff. inter alia. On “Liveness” in the theatre Fischer-Lichte (2004), P. 114 ff. inter alia. 166 Gombrich (1984), P. 243; Heinz (2002), P. 72 f.; Bätschmann (2001), P. 48 ff. On the ambiguity of images from a cognitive sciences point of view Hoffman (2001), P. 30 ff. 167 Ejchenbaum (1978), P. 36. 168 Otherwise images cannot be understood, claims Kuchenbuch (1978), P. 36. 169 At length on this Eco (2002), P. 197 ff. inter alia. 170 Thus very decisively Berghaus (1986), P. 284, and Boehm (2001a), P. 330. Similarly SachsHombach (2003), P. 86 ff., who therefore classifies images as “easy-to-receive symbols”. Similarly Nöth (2000), P. 490, who classifies images as the “Prototypes of iconic signs”. At length on the effect of pictorial analogies Issing (1994), P. 149 ff. inter alia. But Scholz (2004), P. 21 ff. differs, challenging the iconicity of images. Thoroughly on the iconicity of images from a semiotic perspective Kruse (2003), P. 29 ff. inter alia. 171 In tone poems this is different. 165

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its principal by a similarity which is more or less strong.172 Not least, the power of images is based on this.173 But that is not enough: a further difference in principle is that the number of possible images is limitless, but the number of words in a language is basically limited.174 There can be no definitive “Dictionary of images”.175 Despite all the efforts to develop a media grammar or a “Film Grammar” there is no properly developed grammar of images176 nor is there an alphabet of images.177 It seems likely that precisely because of the inherent properties of images that it is fundamentally impossible to develop a finite grammar of images.178 There are other characteristics of images which contribute to their ambiguity. One factor is their multi-dimensionality. Images clearly have more aspects and dimensions than words.179 Unlike words, the meaning of images depends on all of their form, their colour180, on their movement and their spatial position.181 The meaning of images is therefore much more layered than that of text or words.182 And that

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Watzlawick u. a. (2000), P. 62; Berghaus (1986), P. 284. On the difficulties which are linked to the concept of pictorial exactitude, Rehkämper (2005), P. 243 ff. 173 Boehm (2001a), P. 330; Heinz (2002), P. 26. 174 Berghaus (1986), P. 281. 175 Pasolini (1971), P. 39. Similarly sceptical from Monkiewitsch (2004), P. 57 ff., who strongly stresses the role of (creative) chance in the creation of images. 176 Thus Berghaus (1986), P. 281 inter alia, on the state of development of the grammar of media. Similarly earlier Langer (1957), P. 95 f. This theory is contradicted by Vollmer (2004), P. 19 ff., who also starts from a fundamental grammar at least for photographic images. Thürlemann (1990), P. 9 f., also thinks a grammar of images is possible. If images are understood intuitively, this is an indication that fundamental anthropologically founded rules of comprehension – and therefore a grammar of images - exist. 177 Boehm (2001b), P. 267 f., stresses emphatically that images are non-notational. Although there are repeated attempts to develop an alphabet for images: a limited combination of image elements, which can be combined in every new ways to make any image statement. An informative recent example is Hemboldt’s image alphabet. (2006), P. 141 ff. 178 So at least Pasolini (1971), P. 40, who sees in this a reason for the unlimited potential of film authors. 179 On the multi-dimensionality of images Hoffman (2001), P. 157 ff.; Berendt (2005), P. 24 f. inter alia. 180 Particularly the colours used in an image multiply the interpretation options considerably. At length on the meaning of colours Itten (2006), P. 68 ff.; M. Wagner (2002), P. 17 ff. inter alia. Colour is – as Albrecht (1974) put it – a language. Colours and relationships between colours are therefore an important – but also very difficult – aspect of iconography and iconology. On this Bätschmann (2001), P. 138 ff. inter alia. Thoroughly on the importance of colours in the presentation of Information Tufte (1990), P. 81 ff. 181 Comprehensive on the various dimensions and aspects of images Arnheim (2000). 182 Of course this does not mean that words and texts do not also have various levels of meaning. Informative on this Doelker (2005), P. 255 ff., who proposes a multi-dimensional layered model of image semantics.


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makes images more ambiguous and their hermeneutics freer and more surprising – even though images cannot be interpreted randomly and in unlimited ways.183 That is not yet all. The associative power of images184 also makes them ambiguous. Images trigger associations in the observer185. The associations which an image calls up depend on the personality of the addressee and on their deepest subjective attitudes. The same image will therefore have different associations for different observers.186 The huge bandwidth of possible chains of associations also leads to the conclusion that images are ambiguous. The ambiguity of images is hardly surprising, if you take a look at the neurobiological and cognitive psychological aspects of image reception. Images are not just copied when they are perceived. They are constructed from the visual stimuli received, using an extremely complex process in the brain of the person.187 The construction mechanism is not just complex, but also significantly subjective in flavour and influenced by emotions. Taken all together, this prevents the images created from being unambiguous. The visual stimulus which is received by the eye can only provide very limited information about reality.188 To get an image, the human brain has to construct it. Because each brain is different, therefore each image also inherently is always ambiguous.189 The fundamental ambiguity of images has implications for visual communication. Communication using images shows a much higher degree of disparity than does communication using words. The hermeneutic autonomy of images makes communication using images more ambiguous, unreliable and difficult to control.190 Advertising knows all about this.191 But in a positive sense this also means: visual communication is more surprising, stimulating and – in both senses – more colourful.

183 Berendt (2005), P. 25 inter alia Thoroughly on the hermeneutics of images Gadamer (1960/1990), P. 139 ff. 184 On the associative power of images Marion Müller (2003), P. 83 inter alia. 185 On associative thinking generally Türcke (2005), P. 131 ff. inter alia. 186 Although images and concepts can trigger similar associations in different people. The art of visual communication consist among other things in finding such images. Then the networks of association which an image calls up can be (to a point) manipulated. On this Kroeber-Riel (1996), P. 136 ff. with examples. 187 At length on this see above Chap. 3.4. 188 Gombrich (1984), P. 243. 189 Thus very emphatically Gombrich (1984), P. 243. 190 Logical relationships would be one means of consciously influencing contents. As logical relationships link different elements using rules which are defined and so predictable. That reduces the options of interpretation. In any case images do not work precisely with logical relationships. 191 At length on this, how the associative effects of visual communication can be controlled, Kroeber-Riel (1996), P. 136 ff.

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3.5.7 At a Glance – Conciseness of Visual Communication Cognitive psychology distinguishes two styles of perception of images. These allow certain characteristics of visual communication to be better explained and understood. When analysing image reception processes, on an empiric basis there are two styles which can be distinguished: pre-attentive and attentive.192 Pre-attentive processing runs automatically, without any influence from consciousness and in split seconds. These are the automatic, spontaneous and intuitive interpretations of images. They are the explanation why images can bypass the awareness of the observer and affect them directly.193 Attentive processing on the other hand, takes longer, is controlled consciously and requires a greater mental effort.194 Pre-attentive processing means – in other words – assimilating the image “at a glance”. Attentive processing in contrast takes place when an image is looked at closely and is analysed. Attentive processing is not limited to processing of images. Text is also usually processed attentively. The difference between text and image processing lies in the pre-attentive processing. This is a specificity of image processing. Text can scarcely be assimilated automatically almost instantly, without the influence of consciousness. The cognitive psychological characteristic of image processing is the pre-attentive process: images can be captured at a glance. Because pre-attentive processing runs automatically and very rapidly, it promotes a tendency to seek simplicity and similarity.195 Pre-attentive perception tends to notice mainly simple shapes and objects which resemble things which are already known. Cognitive psychology refers in this context to the principle of concision or praegnanz.196 This means: the more concise an image is, the quicker and more easily it will be perceived. The current state of research in psychology and evolutionary biology goes one step further. Images which are complex and not very concise are simplified by the human cognitive system and rendered in a concise form.197 Human visual perception actively seeks out structures and even sees order and regularity where they

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Weidenmann (1994), P. 26 inter alia. Schuster (2003), P. 26, says metaphorically that information can access the brain via images “without having to pass through the critical gateways of consciousness”. 194 Weidenmann (1994), P. 26 inter alia. 195 Weidenmann (1994), P. 29 inter alia. 196 The concept dates back to the Gestalt psychologists Max Wertheimer and Kurt Koffka. See seminally Koffka (1935/1963), P. 110, 151, who talks of a “Law of Praegnanz”. At length on this Ertel (1981), P. 107 ff.; Weidenmann (1994), P. 29 inter alia, and Eibl-Eibesfeldt (1997), P. 72 ff. inter alia. On the neuro-biological basis of praegnanz thinking Eibl-Eibesfeldt/Sütterlin (2007), P. 173 ff. inter alia. The effect of visual communication can be increased if the principle of conciseness is observed. Actual examples for the application of the praegnanz principle in imagery and graphics are provided by Eberleh (1990), P. 76 ff. 197 Eibl-Eibesfeldt (1997), P. 72 ff. With examples for this phenomenon. 193

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are not normally found.198 Behind this is the recognition – established on the basis of empirical research – that perception of images is not just a registration, but is a complex construction that creates order. The principle of praegnanz is so important for perceiving and orienting oneself in the world: the urge towards concision which people are subject to, also leads to errors and mistakes.199 The more concise, the better – this formula is not always true. Because human consciousness has problems in moving away from concise perception and recognition patterns once acquired. The more concise a recognition is, the more difficult it is to correct it and improve on it.200 Harmless examples of this are optical illusions.201 More problematic effects of praegnanz thinking are dogmatism and fundamentalism.202

3.6 O ne Image or a Thousand Words? – On the Superiority of Images Comparison of the properties of visual communication and linguistic communication frequently leads to the theory that images are superior. This theory has a biological source in a phylogenetically based hierarchy of human senses. Nevertheless it is doubtful if one can talk globally about the superiority of images.

3.6.1 Dual Encoding. How Images Are Processed Neuro-scientific research on the reception of images in the last few decades has led to a basic insight: images and texts are processed separately in the human brain.203 This is referred in this context as dual coding.204 Cognition, according to this theory, 198

Eibl-Eibesfeldt (1997), P. 75 f. inter alia; Ertel (1981), P. 114. Similarly Arnheim (2000), P. 69, who in addition distinguishes between the praegnanz principle and the tendency to simplify structures to the extreme. 199 Eibl-Eibesfeldt (1997), P. 76 ff. 200 Similarly Ertel (1981), P. 124. 201 On optical illusions from a cognitive biological viewpoint Eibl-Eibesfeldt/Sütterlin (2007), P. 164 ff. inter alia. Generally on different playful types of optical deception Grünewald (2007), P. 65 ff. inter alia, and striking examples. 202 At length on the connection between the principle of praegnanz and dogmatism Eibl-Eibesfeldt (1997), P. 77 ff. inter alia; Ertel, (1981) P. 124 ff., who provides examples from the political history of the 20th century. 203 Seminal on this Paivio (1971). 204 The hypothesis of dual coding of images which has now been empirically supported by a swathe of studies dates back to Paivio (1971). At length on the further development and modernisation of this theory Engelkamp (1998), P. 230 ff. inter alia. On the reception of informational images also Weidenmann (1994), P. 25 ff. inter alia.

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consists of two separate, but still linked, systems: one word-based/abstract and one image/spatial system.205 The dual coding theory is by no means universally accepted.206 But it has in the meantime been supported by a host of empirical material.207 The neuro-psychologically based theory of dual coding has two implications which are important for understanding and remembering images, so also for visual communication.208 Images can transmit information which cannot be reproduced in text. And: the processing of images is based on specialised processes which are not used at all when processing text. Because the processing of images needs more cognitive resources, on the whole images are understood more rapidly and remembered better.

3.6.2 Biological Basis: A Hierarchy of Senses Alongside touch, sight is the most reliable and most important sense for humans.209 It fulfils a extremely important function in social communication and in the construction of social structures.210 Because it can perceive mimicry, gestures, movements, elegance and body shape of other people and from these can draw important conclusions on the mood and the character of another person. The primordial place which sight has in the hierarchy of human senses has a neuro-biological basis. Of all the sensual systems it is sight in fact which takes up the most space in the cerebral cortex of the human brain.211 In addition it is subdivided into two systems, which fulfil separate but complementary and mutually reinforcing functions.212 Both work together to identify objects and their location and movement through space. Does the hierarchy of the senses allow us to conclude that sight is superior? The supreme importance, based on neuro-biological foundations, of the sense of sight, does make it tempting to assume the superiority of images. Because the image is both the object and an instrument of the sense of sight.

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At length on this Paivio (1986). Very critical on this Pylyshyn (1984). On the other side Paivio (1986). An overview of both schools of thought which oppose each other on this question from Schumacher (1998), P. 44 f. inter alia. 207 Kosslyn (1994), P. 9 ff. A concise overview of the existing empirical material comes from Peeck (1994), P. 73 ff. with many references. Important arguments for the theory of dual coding are supplied by recent research on eidetic (“photographic”) memory. On this Zimbardo (1992), P. 287 f. inter alia. 208 Hasebrook (1995), P. 113. 209 Singer (2004), P. 59. Similarly Leroi-Gourhan (1988), P. 238. 210 Singer (2004), P. 60. 211 Singer (2004), P. 64. 212 Singer (2004), P. 64. 206

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That is supported by an observation which can be made looking at Western213 cultural history. The hierarchy of the senses has not always been the same in every cultural age. The Middle Ages, for example, could be defined as the “Age of hearing”.214 Hearing was more important than sight. This hierarchy was supported by theology: In the beginning was the Word215 – and not the image. The truth could therefore only be recognised by listening.216 Sight – that was the dominant view of the time – led astray. During the Renaissance the cultural re-evaluation took place, which still obtains today. Sight climbed to the top of the hierarchy of the senses.217 The modern era is an “Age of sight”. At the latest since the invention of printed books there has been a fundamental change from the “listening public” to the “reading public”.218 Transmission of knowledge is no longer carried out by collective listening but by individual reading.219 Given this cultural relativity of different human senses there can be – despite all the neuro-biological findings – no way to define a single and permanent hierarchy of human senses. As important as the sense of sight may be: humans have other senses too. The full power of the human perceptive apparatus only emergs fully when all the different senses work together. The question of the superiority of images can therefore only be answered in a qualified manner.

3.6.3 Images Are Better! Are Images Better? The superior ranking of the sense of sight in the phylogenetically produced hierarchy of the senses appears – at least on first sight – to correspond to a superiority of images as a medium for communication. Images catch attention more easily and more forcefully than other media.220 Images usually appear to humans to be almost as convincing as reality itself.221 The use of images increases – this is shown by empirical studies – the understanding of text quite considerably.222 At the same time, images are generally remembered better and longer than purely 213 Diner (2005), P. 112 ff. Shows that developments in the Islamic world took a different path. The Arabic world is suffering the consequences of the primacy of an oral tradition to the present day. On this theory at length Diner (2005), P. 112 ff. inter alia. 214 Assmann (2006), P. 91 inter alia. 215 John 1, 1. 216 The text of speeches by senior politicians is generally distributed to journalists, before the speech is delivered. But the manuscripts carry the comment “The words spoken only apply”. This is a relict from the time when listening was particularly important. 217 Assmann (2006), P. 92. 218 Eisenstein (1979), P. 12 9 ff. 219 Diner (2005), P. 112. 220 Keil (2005), P. 138 inter alia. 221 Singer (2004), P. 59. 222 Weidenmann (1998), P. 243 inter alia.

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verbal descriptions.223 Therefore the conclusion almost seems self-evident: images are fundamentally superior to words.224 But this sweeping statement demands contradiction. The first doubts about the superior effect of images came from studies which empirically examined the connection between the superior effect of images and visual complexity.225 These show that the superior effect of images is not static. It depends not only on the complexity of the images, but also on other phonemic and conceptual information.226 How these correlations look individually we can leave aside here.227 What is clear is that images are not always, and in all contexts, superior to words.

3.6.4 Images: Communication Sans Frontieres? Despite all their strengths: images have – as far as their ability to express ideas is concerned – clear limitations which are inherent in their very nature. This is particularly true in comparison to verbal language.228 When we look at descriptions, the differences between images and words are less major.229 Representations are indeed an important area of use for images. The communicative boundaries of images become clear, however, when we start to talk about analysis.230 Analyses can barely be carried out with the aid of images. What is the reason for this? Analyses work in general with categories, hypotheses and estimates of likelihood, in order to derive cause and effect relationships and connections. Language has developed concepts for this, which are almost totally absent in visual communication.231 Also in the area of abstraction, images quickly hit their limits. They are not or barely able to represent abstract concepts and theories.232 Images – unlike languages with words – have no systematic arsenal of symbols and syntactic rules to present abstract concepts.233 For this reason it is also difficult, if not impossible, to 223

Engelkamp (1998), P. 227 inter alia. Thus roughly Engelkamp (1998), P. 227. 225 On this Engelkamp (1998), P. 232 inter alia. 226 Engelkamp (1998), P. 232 f. inter alia. 227 Engelkamp (1998), P. 230 ff. inter alia refers to the results of the relevant studies at length. On this also at length Berendt (2005), P. 28 ff. inter alia. 228 Thoroughly on the meaning of verbal language and its limits from a semiotic viewpoint Eco (1999), P. 46 ff. 229 Messaris (1994), P. 22. 230 Messaris (1994), P. 22. 231 Messaris (1994), P. 22, stresses that there are a few exceptions to this principle. 232 Messaris (1994), P. 114; Brunschwig (2001), P. 106; Plümacher (1998), P. 53, who, however, correctly points out that in certain contexts images can represent abstract ideas. 233 Messaris (1994), P. 115, sees this correctly as a decisive difference between language and images. The examples which Messaris (1994), P. 116, gives are informative. 224

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present non-visual experiences through images. How can you, for example, represent purely visually, the experience of a loud noise or an acrid smell? Can images say “no”? Whether it is possible to show negatives in images is strongly contested.234 Just saying flat out that images are not able to express negatives is no longer tenable.235 An international visual sign for negative has emerged: a red diagonal cross.236 Nevertheless, images have far more trouble with negatives than words do.237 What is particularly problematic is the closed-world assumption mentioned above which is linked to images.238 Images suggest that they always show the whole reality. What cannot be seen on an images is (too) quickly treated as non-existent. This not only leads to problems with images when representing quantities and implications, but also to distortions of content, if not downright forgeries. Because images as a rule show only excerpts of the world and not the whole world – although they look like they do.

3.7 Do All Images Lie? Images enjoy a special credibility. “I saw it with my own eyes” – is taken as proof in everyday life. In reality the authenticity and credibility of images is an illusion. Above all using digital technology it is very easy to manipulate images without leaving a trace. When this fact becomes generally recognised, it is bound to have an effect on the general credibility of images in comparison to words.

3.7.1 Credibility of Images – An Illusion? Images appear authentic.239 An example: photos provide evidence as proof,240 that is scarcely if ever doubted. This effect comes from the special iconic properties of images: an image displays a – greater or lesser – likeness to the object being depicted.241 It is on this likeness that the power of images is based, together with their

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Brunschwig (2001), P. 106 inter alia. Thus, however, very emphatically Edson (1990), P. 261 and Berendt (2005), P. 25. 236 Messaris (1994), P. 114, and Brunschwig (2001), P. 106, refer to this. On the different variants which are possible, Brugger (2005), P. 45 f. 237 Similarly Messaris (1994), P. 114 f. 238 This concept created by Berendt (2005), P. 25. 239 Mitchell (2001), P. 23 f. 240 Sontag (2006), P. 11 f. 241 Watzlawick et al (2000), P. 62 f.; Heinz (2002), P. 26. Sachs-Hombach (2003), P. 86 ff., classifies images therefore as “perception-like symbols”. But Scholz (2004), P. 21 ff. sees it differently. 235

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credibility.242 Because the likeness suggests that the images are copying reality.243 So whoever looks at images, appears to also see the reality itself.244 Images therefore are per se more credible and even “truer” than words.245 But to a large extent the credibility of images is an illusion. Even if it seems otherwise: no image actually represents reality.246 Every image is just a statement about reality.247 This comes from the way in which images are produced and how they are then perceived. Already anyone who produces images is copying reality in a false way. They are taking from reality just a limited subset of material248, which they choose, shape, organise and then depict.249 And the perception of images has only a limited amount to do with reality. Images are not copied objectively as isomorphs, but rather are constructed by the human brain subjectively on the basis of the visual stimuli received.250 Subjective, everyday human experience over the centuries is quite different. Things which are perceived directly are taken to be true, authentic or credible.251 Even a long history of forgery of images and visual manipulation has not changed this at all.252 For millennia images have been an important medium for exercising political power.253 Since forever people have been influenced by stage-management, composition or forgery of images and this has decided the outcome of political struggles for power. Over the millennia, a whole arsenal of image falsification and manipulation options have been developed.254 242

Boehm (2001a), P. 330. Boehm (2001a), P. 330. On this Bolz (2001), P. 73: “Nature records itself – as a photo”. 244 Critically and thoroughly on this Kepplinger (1987), P. 302 inter alia; Bentele (1988), P. 407 ff. inter alia. Informative on this are the studies on the comprehension of the watcher about TV programmes from Messaris (1994), P. 149 inter alia. At length on this also Frey (1999), P. 40 ff., who in this context talks about the dogmatic nature of the visual impression. 245 Röhl/Ulbrich (2000), P. 355, 380; Meyer et al (2000), P. 135. 246 This pushes Schreitmüller (2005) to the slogan: “All images lie.” 247 Sontag (2006), P. 12 stresses quite correctly that “Photos [are] just as much an interpretation of the world as paintings and drawings”. In this context Kepplinger (1987), P. 302, talks about the “essentialistic false conclusion”. Somewhat tendentiously Albrecht (2007), P. 29, reduces it to the slogan: “Images always lie.” 248 Sontag (2006), P. 12. On the still underestimated importance of the material in modern art, at length Wagner (2002), P. 57 ff. 249 Arnheim (1993/2004), P. 56 f. How this selection happens in practice in editing an image is described by Miener (2004), P. 44 ff. inter alia, informative in the detail. 250 At length on this see above Chap. 3.5.3. 251 Singer (2004), P. 56 f. like Ong (1982), P. 117, shows that the awareness of the susceptibility of images to forgery compared say to listening was present in ancient times. This is a problem area that came to the foreground in the transition from oral to literate cultures. Hickethier (1997), P. 525, refers to the fact that the level of truth contained in an image was always almost impossible to measure. 252 An overview with spectacular examples is given by Jaubert (1989), P. 17 ff. 253 On this Heinz (2002), P. 73 ff. with many other references, and Jaubert (1989), P. 17 ff., with many examples. 254 At length on this Brugioni (1999), P. 25 ff. inter alia Jaubert (1989), P. 10 ff. classifies the various techniques which can be used to forge photos. Forster (2003), P. 66 ff., provides a histori243


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Before the Enlightenment the awareness that the authenticity of images is just an illusion was in fact more widespread.255 Images for a long time were not taken to be “literally” authentic, but rather as illustrations or basic clarifications.256 In the fifteenth and sixteenth centuries the same images were quite often used to explain different events.257 With the Enlightenment and positivistic thinking this changed fundamentally: images were now expected to provide an authentic representation.258 The myth of authenticity259 has its roots here. This demand for authenticity is met perfectly by the technologies of photography and film260 – but only apparently so.

3.7.2 Photoshop & Co. – Image Manipulation in the Digital Age Digital technology opens up a new dimension in the processing of images, but also in image manipulation and forgery. When digitised, images can be represented by algorithms.261 So changing a digitised image is just as easy as changing an algorithm. They are not – to put it another way – static but programmable.262 Digital image processing technology has developed an almost unlimited arsenal of “tools”, cal retrospective with spectacular examples. Using the example of photography Brugioni (1999), P. 17 ff., and Mitchell (2001), P. 191 ff., develop a typology of image manipulation. Similarly Knieper (2005a), P. 41 ff., for images in the mass media. Impressive examples from history are presented by Heinz (2002), P. 73 ff.. On the neuro-physiological and communication psychological background to the potential for manipulation that images have, Kroeber-Riel (1996), P. 93 ff. inter alia. 255 But this does not mean that the idea of images being true-to-nature representations was unknown.? An informative example is the Acheiropoita of the late byzantine era: images in which the holy image being depicted was created by itself. Greater authenticity is hard to imagine. At length on the icons “not made by human hand” Wortmann (2003), P. 32 ff. with evidence of contemporary discussions. 256 Schierl (2003), P. 152 f. inter alia. The authenticity of images was not measured by their similarity to what was being depicted. It depended on other criteria. On the various concepts of authentication in painting since late antiquity Wortmann (2003), P. 79 ff.; 119 ff. 257 Schierl (2003), P. 152 f. with examples. An impressive example is also given by Gombrich (1984), P. 140 f.: Reports about the earthquake in Ferrara (1570) and the floods in Voigtland (1573) are illustrated using the same image. On this also Wortmann (2003), P. 63 ff. inter alia the artist sees themselves as alter deus and therefore takes the liberty of freeing himself from the realities and work creatively. Similar occurrences can be seen in the modern mass media. It is not unusual for current events to be illustrated using older images, without the images being expressly labelled as archive material. On this Doelker (1997), P. 23 f. and Berens/Hagen (1997), P. 545 f. each with examples. 258 Schierl (2003), P. 153 f. inter alia. 259 Very pointedly Schierl (2003), P. 153 f. 260 At length on the importance of the development of photography for the concept of and the claims to authenticity, Wortmann (2003), P. 124 ff. inter alia. 261 Manovich (2001), P. 27 f. Heidenreich (2005), P. 381, talks relevantly about a “dual existence” of digital images “as a data file and as a visible image.” 262 Manovich (2001), P. 27.

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which can be used to process images.263 This increases the creative power of the image creator quite considerably.264 The decisive new factor in digital image processing lies less in the ease with which images can be changed and falsified. Of much greater importance is rather the lack of traceability of the manipulation of images.265 Changes to analogue images – such as photo-montages or photo retouching – were detectable, at least by experts, thanks to traces of the rework.266 Sharp edges from scalpel cuts are, for example, indications of photo montages and image collages.267 More or less clearly visible inconsistencies were in particular a reliable indication of visual manipulation.268 Graphic software removes these traces, so that any manipulation is barely if at all detectable any longer.269 Although digital manipulations are not totally free of traces. Image forensic experts are on the trail of forgers. For experts the manipulation can be seen by examining the data file which stores the digital image.270 But even the most careful normal everyday observer cannot do this. To put it bluntly: with digitalisation the history of the authentic image has come to an end. There is no balance in skills between the producer and the recipient of the image.271 Anyone producing images knows about the content, origins, background and intent of their images. But whoever is receiving them normally has significantly less information. This lack of symmetry in the information available is the basis for visual deception and manipulation.272 Thanks to digital technology the divide between the producer of an image and the recipient of the image is made even greater. This will (inevitably) have effects on the credibility of images.273

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At length on this Brugioni (1999), P. 6 ff., 173 ff. and Mitchell (2001), P. 59 ff. with many examples. On the digital processing of images in the media Hickethier (2003), P. 97 f. inter alia, and Manovich (2001), P. 152 ff. 264 Quite often the image manipulation happens automatically. Roßnagel/Knopp (2006), P. 988, point out that digital photos are immediately and automatically optimised by software inside the camera – and so are changed. 265 The lack of traceability of digital changes is stressed by Plümacher (1998), P. 54. Bolz (2001), P. 73, talks in this context about digitalisation being the “kingdom of untraceable forgery”. 266 On further criteria on judging the authenticity of photos Mitchell (2001), P. 43 ff. 267 Plümacher (1998), P. 55. 268 Mitchell (1994), P. 49; Mitchell (2001), P. 31 ff. 269 But Hickethier (2003), P. 97, shows with examples that manipulation can also be detectable by the layman due to contextual information. The decisive problem is, however, whether any contextual information is available. 270 Informative on this Brugioni (1999), P. 193 f., who describes a good example of how photo manipulations can be detected. 271 On the unbalanced positions of symbol provider and symbol reader generally Pörksen (1997), P. 165 f. 272 On this using an example of the production of an apparently authentic press photo Schierl (2003), P. 162. 273 This problem is particularly acute in photo-journalism, which relies on the assumption of credibility which images enjoy. On this Grittmann (2003), P. 131 inter alia.


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3.7.3 H ealthy Mistrust – On the Evaluation of Images in the Digital Era The ability to manipulate and falsify images has grown much faster than the mistrust of images.274 Even now, images still benefit from an assumption of credibility. Images are still treated to a large extent as authentic documents. This applies too in the law. Photos for example are – as eye-witness proof – much loved and effective pieces of evidence.275 They appear to promise an objective proof and – supposedly – do not lie. Meanwhile digital technology has long since killed off the documentary character of images. In a sophisticated media and information society this is a hot topic. The vast majority of (political) reality and of relevant information is transmitted using electronic image media – in particular television. Electronic – and therefore, extremely easy to manipulate – images play a highly significant part in shaping our perception of reality and therefore in shaping reality itself.276 The matter is however not as critical as it might be. Because the credibility of the image depends not only on the image itself, but on the whole context, in which the image is shown.277 That gives the observer of the image further points of reference to form an opinion and to double-check the image. But even that is ambivalent. Because dependency on the context of images expands the arsenal of manipulative tools for the producer of the image: misleading contexts are powerful manipulation techniques.278 Only one possible cure can be defined from this diagnosis. The relative value of images and things we see will (have to) change.279 New digital methods of image production and manipulation will inevitably lead to greater knowledge about images and the use of images on the part of observers. Healthy mistrust would be a good attitude with which to approach images. It would be nothing new, fundamentally. Advances in the technology of images having anthropological effects is a recognised 274

Röhl/Ulbrich (2000), P. 355, 380, and Brugioni (1999), P. 193 f. But Forster (2003), P. 98 inter alia, disagrees with the (in my opinion) doubtful, empirically unproven theory: that images have always been manipulated is something which all observers have always known. 275 On the photo as evidence around 1900 Karallus (2007), P. 152 ff. inter alia and many examples. 276 On this Plümacher (1998), P. 55. 277 Thus Hickethier (1997), P. 525, with the example of journalistic news programmes. A practical and very relevant example for this are captions with published photos. Problematic examples from real life are given by Freund (1997), P. 172 ff., and Hickethier (2003), P. 97. Here there is the potential for manipulation of images: falsification of context. At length on this Albrecht (2007), P. 32 ff. inter alia. 278 On this Albrecht (2007), P. 32 ff. inter alia, and Knieper (2005a), P. 43 f. inter alia. A trivial but widespread example of this in the press are misleading captions or mis-identification of elements of images. On this Forster (2003), P. 95 f. 279 Spohn (2002), P. 255 ff. inter alia, provides a historic overview of how the development of media technologies has repeatedly changes the way people see. Albrecht (2007), P. 47, even pleads for “a new hostility to images”. But that is hardly a sensible strategy for dealing with the modern flood of images. More realistic is Lüthe (2007), P. 62, who stresses that you cannot expect more veracity from images than you can from everyday human communication generally.

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phenomenon.280 Already photo-collages and photo-montages, the mass media and video technology have shattered trust in images and made people look at images differently. Perception has become more analytical. A simple image hardly exists any longer.281 A re-orientation process – initiated by digital image editing – does now seem to be actually getting underway:282 the manipulation of images is – although still in its infancy – already being accepted as the “new norm” to which you adjust as best you can.283 Although this acceptance is wildly variable:284 for photographic illustrations digital manipulation is generally seen as acceptable, but in press images authenticity – truth, reliability, credibility – is expected and manipulation is strongly rejected.285 But even there, the authenticity has always been – to a greater or lesser extent – an illusion.286 One of the most famous photos of the twentienth century illustrates this statement strikingly. The image of a Soviet soldier hoisting the red flag of the Soviet Union above the mainly ruined Reichstag in Berlin, is not an authentic shot. It was staged for the photo and was reworked afterwards with retouching and montage.287 Press photography therefore has to walk a difficult tightrope: on the one hand it is not possible for them not to construct images. On the other hand they make the claim to represent reality authentically. This balancing act only succeeds if ethical and quality standards which are able to deal with this problem are maintained.288

3.8 Text and Images: Combine and Compete The differences between text and images are huge and obvious.289 But there is no real conflict between the two of them: in writing there are pictorial elements,290 images include textual aspects.291 Therefore a comparison is not meaningless, but 280

Belting (2002), P. 41, refers to this. Belting (2002), P. 41. 282 Belting (2002), P. 40 f., sees signs for the start of an evolutionary process in knowledge about images and the use of images by people. 283 Bolz (2001), P. 73. 284 Forster (2003), P. 73 ff. inter alia, on the basis of questionnaires of readers in the print media area. 285 Very informative on this the questionnaire results from Forster (2003), P. 86, 90, 92. 286 Examples which confirm this theory are given by Freund (1997), P. 172 ff. This is particularly an issue for war reporting. At length on press war images Lohoff (2007), P. 107 ff. inter alia. 287 At length on this Volland (2008), P. 20 ff. 288 At length on the problems and ethics of photo journalism Grittmann (2003), P. 129 ff. inter alia. 289 On this roughly at length Langer (1957), P. 79 ff. Although – from an anthropological point of view – language and painting have developed since the early Stone Age from common roots: the ability of homo sapiens to set down thought in material symbols. At length on this Leroi-Gourhan (1988), P. 237 ff. 290 Krämer (2006), P. 79 ff. inter alia, goes even further, who says that “writing is a hybrid of speech and image”. 291 Stetter (2005), P. 117. 281

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rather promises some additional insights.292 Most recently, this insight has come mainly from the study of literature, which has been devoting itself more and more to the combination of text and images.293 And art history too is looking in detail at the relationship of images and texts.294

3.8.1 Language Imagery – The Vividness of Language Language and writing are far from being just sober description or narration. The word imagery already shows that language can also be pictorial.295 The vividness of language is linked to the way in which language is received. Figures of speech and metaphors stimulate the reader’s imagination and fantasy. This creates mental images.296 As well as metaphors it is mainly personification and allegories which make up the vividness of language.297 Another literary trick to create mental images is ekphrasis, the very visual – image-like – description or presentation of an object or a painting in text.298 Language and writing – we can say –have developed visualisation strategies in order to enhance their effects.299 The theory of the pictorial nature of language300 is very vividly supported by the manuscript culture of the thirteenth and fourteenth centuries. The illuminated initials which were very common show clearly how writing leans towards images.301 This is totally consistent with the philological finding that the concepts of writing

292

Similarly Belting (1989), P. 38. Wenzel (1995), P. 292 ff. inter alia. He notes that there is a strong affinity between image and text which he describes as the “imagery of language” and the “narration of images”. On this also Pörksen (1997), P. 151 ff., and Nöth (2000), P. 490 inter alia. 294 Bätschmann (2001), P. 295 Nöth (2000), P. 490, talks about the “iconicity of language”. Even if vivid metaphors are not excluded from legal language, they are only used there very sparingly. On this Jung (1994), P. 416 ff., and Baer (2004), P. 240 ff. inter alia. Whether this has to be the case is very much open to doubt. 296 This is not a new finding for philosophy and the study of literature. On this Wenzel (1995), P. 416 inter alia In the Middle Ages poets created mental “constructions”, which were created as images in front of the readers/audience. They saw themselves quite frequently as “architects of poetry”. At length on this Wandhoff (2003), P. 51 f. inter alia. 297 At length on personification and allegory from a literary criticism point of view Wenzel (1995), P. 450 ff. inter alia. Personifications are also on the other hand an important means of representing content in images. On personification from the point of view of the history of art Warncke (2005), P. 79 ff. 298 Ekphrases are therefore windows within a text, which (try to) turn the listener into a watcher. At length on this Rippl (2006), P. 96 ff. inter alia, Wandhoff (2003), P. 41 ff. and Wandhoff (2001), P. 175 ff. inter alia. A famous example from world literature is given by Eco (1999), P. 48. 299 On this Wenzel (1995), P. 422, 444 f. inter alia. 300 Mitchell (1990), P. 30 ff. inter alia provides a short overview of the history of imagery in language. 301 Wenzel (1995), P. 298 f. inter alia. 293

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and painting were used synonymously in the Middle Ages.302 One reason for the strong affinity of text and images particularly in the Middle Ages is certainly the similarity of the crafts of writing and painting.303 Mediaeval sources describe in detail how in the monk’s scriptoria texts were not so much written as rather painted using calligraphy.304 On its own, this explanation is not enough, however. Stronger biologically based theories stress that the sense of sight is of primordial importance for both writing and painting.305 In addition, there is the fact that historical conditions at various points in the past have favoured the close linking of image and word. An excellent example of this is the growth of dialect writings in the twelfth and thirteenth centuries.306 Because writing had to impose itself in competition with the – very vividly marked – oral tradition, there was a clear tendency to give the written contents a simultaneous visual expression. Texts had to develop rhetorical visualisation strategies in order to win the day.307 Later – after writing had long since taken over from images – figures of speech were an important artistic tool in literature, which markedly extended the options of presentation and reflection.308 Texts can even present images. That is the extreme form of image in a text.309 A text of this type cannot only be read. It must be viewed – more precisely: iconographically analysed. Striking examples of this are found even in ancient times,310 in calligrams,311 in the baroque lyric calligrams312, scriptural painting, concrete poetry313 or modern advertising.314 European literature has a long tradition of visual poetry.315 Text-image compositions are a constant feature in literary history,316 302

Wenzel (1995), P. 293 inter alia on the current status of philological research. Wenzel (1995), P. 296. 304 At length on this Wenzel (1995), P. 296 inter alia. 305 Yates (1990), P. 46 f. inter alia. 306 Wenzel (1995), P. 300 inter alia. 307 Thoroughly on language images as a rhetorical visualisation strategy Voßkamp (2007), P. 118 ff. 308 Voßkamp (2007), P. 212 ff. shows this effectively with the example of Goethe’s “coming-ofage novels”. 309 On images made up of writing from a typographic perspective at length Gorbach (2005), P. 304 ff., with informative examples. 310 At length on the visual poetry of ancient times Adler/Ernst (1990), P. 21 ff., with striking examples. 311 On the technopaegna or shaped poems Rippl (2006), P. 94 f. with a striking example, and Adler/Ernst (1990), P. 33 ff. One of, if not the, pinnacle of the history of shaped poems is Hrabanus Maurus’ Liber de laudibus sanctae crucis, which was created between 806 and 814. At length on this Adler/Ernst (1990), P. 39 ff. inter alia, and Ernst (2003), P. 17 ff. 312 Adler/Ernst (1990), P. 73 ff., 183 ff., with examples. 313 Arnheim (1986), P. 93 ff., shows impressively that poems can also be images. 314 Nöth (2000), P. 495 inter alia On the importance of a connection text-images in advertising Kroeber-Riel (1996), P. 178 ff. inter alia. 315 Adler/Ernst (1990), P. 212 ff. outline the relaunch of the genre since Laurence Sterne’s Tristram Shandy in 1760. 316 Ernst (1990), P. 197 ff. Similarly Nöth (2000), P. 495 inter alia. 303


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although they were often heavily criticised.317 Therefore literary criticism increasingly views text as a hybrid of language and image.318

3.8.2 Image Stories – The Narrative Skill of Images Images contain a story, even when they are not stories.319 Images do not just show, they also tell.320 In other words: images can also speak. Talking images – how can this be achieved? You get images to talk simply and directly by integrating text into the images.321 A superb example of this are the banners and speech boxes in mediaeval miniatures.322 The miniatures of the “Hamburg City Law” from 1497 include speech boxes that integrate legal texts into legal images.323 A somewhat different form of the text-in-images concept are the illuminated letters which appear in the calligraphy of the Sachsenspiegel. Modern examples of this are comics and posters.324 Image and text have merged fully in pictogram languages, such as Egyptian hieroglyphs.325 But it can be much more subtle. Images also when they use visual patterns which relate to texts and stories.326 The means of doing this are personifications327,

317 Still well-known today – but quite simply wrong – is Lessing’s opinion, who in 1766 in his essay on the theory of art Laokoon or On the Limits of Painting and Poetry made a strict distinction between image and text, painting and poetry. The text is shown in Adler/Ernst (1990), P. 221. Willems (1990), P. 424 f., gives examples from representative art and literature, which clearly show that Lessing's strict distinction is meaningless and wrong – and indeed was so even at his time. Nevertheless the text became very influential and led to the intellectual downgrading of the value of images until the beginning of the 20th century. On the history of the legacy of Lessing’s Laokoon at length Warncke (2006), P. 51 ff. inter alia. 318 This theory is argued by Krämer (2006), P. 79 ff. inter alia. 319 Belting (2000), P. 20. Similarly Wenzel (1995), P. 300, who points out that this insight was proverbial in ancient times. 320 Very concisely Wenzel (1995), P. 320. At length on “Images as stories” Varga (1990), P. 358 f., who applies the Aristotelian distinction between argumentative and narrative types of text to images. 321 Brunschwig (2001), P. 55 inter alia talks in this context correctly about “Text in images”. At length on this Kliemann (1990), P. 83 ff., using the example of secular wall paintings in Italy in the 15th and early 16th centuries. 322 Examples from Italy analysed by Bätschmann (2001), P. 36 ff. 323 Brunschwig (2001), P. 56 inter alia. 324 Eberleh (1990), P. 70 f. On the design of posters using image-word combinations at length Paul (2005), P. 73 ff. with practical examples. 325 Eberleh (1990), P. 67. 326 Brunschwig (2001), P. 57, describes this as “Textual material in images”. 327 On personification from an art history point of view van Straten (2004), P. 37 ff. with examples. On the theory of personification Warncke (2005), P. 82 ff. inter alia.

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allegories and symbols328. Textual, narrative statements by images are also found in the form of visual stereotypes.329 Here we are talking about visual elements which – with a particular meaning attached – appear multiple times in the work or works or one or more artists. To exaggerate, one could call these visual stereotypes the vocabulary of the artist.330 Extrapolating logically: images which are made up of visual stereotypes are sentences.331 Overall, images are well suited to speak and to narrate. It is their specific characteristics which make them “born storytellers”. The multi-dimensionality of images, their synoptical character and their synchronicity serve excellently for visual narration.332 Images can represent synchronously events or actions which follow each other. Thanks to their multi-dimensionality they can visualise events which follow each other consecutively. Both in the history of art generally as well as in the iconography of law there are many examples of this.333

3.8.3 Complementarity and Competition Image and text – are they complementary or do they compete with each other?334 Images and text have different characteristics and functions. But at the same time there are areas where the boundary between text and image become blurred. So there is both: competition and complementarity. This can be explained anthropologically. Language and images have developed since the origins of homo sapiens from a common root: the fixation of thought in material symbols.335 Images are therefore very close to language.336 At the same time, over the millennia they have developed away from each other. Above all the alphabetisation and linearisation of writing around 4000 years ago speeded up the separation of art and language.337 What does this historical-anthropological fact mean for communication?

328

Brunschwig (2001), P. 57. Thoroughly on allegories and symbols in painting van Straten (2004), P. 49 ff. with many examples. 329 Brunschwig (2001), P. 58. 330 Bätschmann (2001), P. 102. 331 Bätschmann (2001), P. 102. More reticent Brunschwig (2001), P. 58 f. 332 Brunschwig (2001), P. 36 inter alia. 333 Brunschwig (2001), P. 36 f. inter alia, provides some striking proofs for it. 334 Wenzel (1995), P. 299. 335 Leroi-Gourhan (1988), P. 237. Stetter (2005), P. 115, reduces this to a formula: “The origin of writing lies in images.” At length on the phylogenic development of the human brain and of language Niemitz (1989), P. 95 ff. inter alia. 336 Leroi-Gourhan (1988), P. 240. Niemitz (1989), P. 105, stresses, that language phylogenetically is mainly optical, not acoustic. 337 Leroi-Gourhan (1988), P. 244. Similarly Stetter (2005), P. 115 f.


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The relationship of communication using text and images has – as a glance at the history of communications shows – not been at all constant. The cultural relationship between images and text depends heavily on the technical media which are available to a given society.338 The classic example of this is the development of printed books: since books have been printed, the world has been converted to writing. Oral communication had to give up its dominant importance.339 Given this historical background the current visualification of communication can be seen as a development process, which is changing the word-image balance in current communication.340 The dominance of writing is coming to an end.341 The digitalisation of media demands an ever closer integration of text and images.342 Possibly that will lead to more effective communication. Because both purely textual and purely visual communication each have their weaknesses.343 But both complement each other in many ways, and can compensate for each other’s weaknesses.344 This can be seen above all in combinations of text and images which deliver particularly strong and specific communication effects.345 These are not new insights and this is not innovative practice. The Middle Ages was a high-water mark of image-text combinations – and of the perception theory reflection on the mutual interaction between text and image.346 Also the coats-of-arms, which had a heyday as an art form in the sixteenth to eighteenth centuries, show in a very practical way how the combination of text and images can increase the communication effect.347 But it is not unusual either, for combinations of text and images to represent a meaningless combination or even a contradiction between text and image.348 In that case the communication effect is minimal, on the whole.

338

Schmitz (2003), P. 242. On the dominance of oral communication until the end of the Middle Ages Schmitz (2003), P. 241 f. 340 Schmitz (2003), P. 242 ff. inter alia. At length on the word-image balance in legal communication see below Chap. 8.3. 341 Schmitz (2003), P. 243 inter alia Postman (1999), P. 95 ff., laments this seriously. 342 Schmitz (2003), P. 248 ff. 343 On the various presentational options of images and text Schmauks (1998), P. 4. 344 Nöth (2000), P. 492 f. inter alia. 345 Nöth (2000), P. 493 inter alia, emphasises that text and image together can quite often give rise to a holistic new interpretation of the total message. Cramer (2001), P. 133, gives an example in his detailed study of the illustrations in a famous collection of fables from 1566. An interesting special case of the text-image combination is analysed by Schmauks (1998), P. 6 ff.: In the text important information was kept quiet, but was displayed by the accompanying illustration. 346 At length on this Meier (1990), P. 47 ff. 347 Informative examples of this are provided by Gilbert Heß (2006), P. 174 f. 348 On the discrepancy and contradiction of text-image combinations Nöth (2000), P. 493 f. inter alia. But sometimes the first impression can be misleading and there only appears to be a discrepancy between texts and images. At length on this problem area Cramer (2001), P. 135 ff. 339

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3.9 The Anarchy of Images Human societies exercise social controls and impose rules. An important – though not the only – instrument used for this is spoken and written language. Language is strongly controlled socially – and it exercises social control. Images are different. Images enjoy substantially more social freedom and can only be used to a limited extent to impose social controls.

3.9.1 Words Versus Images – Control or Freedom? Language contains content and rules which are mandatory for its users.349 This makes it one of the most important means of integration which holds a society together.350 You can put it even more extremely: language as a control mechanism is the most important social institution there is.351 This is shown not least by the law. Language influences judgements and legal life in general.352 This is obvious when you consider: the wording of a rule is the starting point for any interpretation of it. Even if the interpretation does not stop at the wording: the direction in which the interpretation – and therefore judgement – extends is defined by it.353 With images, the socio-cultural ties are much less strong than for language. The language of images is mainly – although not completely – universal and often barely touched by a specific culture and society.354 As shown by the example of pictograms, images are often understood across cultures. Nevertheless there are also interpretation rules and patterns of understanding for images which are determined by societies.355 There is not just a universal, but also a culturally flavoured language of images, which cannot be understood without societal and cultural background and influences.356 A well-known example of this are symbols and taboos. They are culturally dependent and incomprehensible without knowledge of the socio-cultural context.357 349

Durkheim (1973), P. 119. Berghaus (1986), P. 283. 351 Thus very emphatically Berghaus (1986), P. 283. At length on the effects of languages on society and thought see above Chap. 2.1. and Chap. 2.2. 352 At length on this Schauer (1988), P. 524 ff. inter alia, who talks in this context about “linguistic constraint”, which the law is subject to. Generally on the relationship between law and language Rüthers (1999), P.. 150 ff. inter alia. 353 Thoroughly on the question how language limits and leads jurisprudence, Schauer (1988), P. 530 ff. inter alia. 354 Brunschwig (2001), P. 37. 355 Berghaus (1986), P. 283. 356 At length on pictorial language Schuster (2003), P. 54 ff. On pictorial language with concrete examples of film speech Kuchenbuch (1978), P. 36. 357 Schuster (2003), P. 55 ff., with many examples. 350

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Nevertheless: visual communication is freer and less controlled than languagebased communication. Images are at least partly outside society.358 There are fundamentally only limited alternative ways to interpret words and text. But images leave more room for internal development and interpretation. This greater freedom strongly enables the recipient to develop their own ideas.359 Images – unlike written or spoken language – cannot embody a fully controlling impact on the individual.360 Images are potentially more anarchic than words. This is shown by the example of art. One of – not the only – important functions of art was and is the externalisation of fantasies.361 What does that mean? In a modern, well-regulated society individual opportunities for experience atrophy.362 An achievement-oriented, industrial society needs dependable, functional members. There is little place left for emotions, imagination and spontaneity. And here is one of the more important functions of art. Art in general and images in particular offer the option of living out fantasies and of compensating for the sameness of the daily routine.363 Art and images offer – in other words – bolt-holes from socio-cultural commitments.364 The theory that images exist partially outside of society can be supported both by anthropological data as well as the results of brain research.365 Nevertheless the great freedom of images does have its limits. Even images can be made use of to exercise social control. This can be seen clearly in the example of the electronic – image-dominated – media. They reach deep into all areas of society and of everyday life. But they are not focusing on and selecting only the uptake of information.366 They have an impact – going way beyond that – on daily routines, habits, points of view, behaviour, goals and the world view of their recipients.367 This is control – even subtle surveillance – through the power of images and the media.368 The relationship of images to freedom is therefore ambivalent. Particularly in art, the aspect of freedom dominates: painting and representational arts are areas 358

Thus Berghaus’ theory (1986), P. 283. Berghaus (1986), P. 285. 360 Berghaus (1986), P. 285. 361 At length on this Schuster (2003), P. 270 ff. 362 Schuster (2003), P. 271. 363 Schuster (2003), P. 271. 364 Similarly Berghaus (1986), P. 285. 365 Thus Berghaus (1986), P. 287 ff. inter alia. 366 On the selection of information by the media Altheide (1985), P. 97 ff., who analyses the criteria by which the TV-media measure the newsworthiness of an event. At length on this also Winterhoff-Spurk (2001), P. 157 ff. inter alia, who describes the ideal TV event as “short, dramatic, bloody”. 367 Seminally Altheide (1985), P. 131 ff. inter alia. At length on this also Winterhoff-Spurk (2005), P. 141 ff. inter alia, who describes television as the “secret educator”. An overview of the research into the effects for television is supplied by Winterhoff-Spurk (2001), P. 95 ff. inter alia. 368 Taking it much further, Winterhoff-Spurk (2005), P. 165 ff., even talks about television shaping character. On the power of images from a psychoanalytical viewpoint Tisseron (2007), P. 308 f. 359

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in which anarchic, even asocial, parts of the personality can be expressed. In the media system in contrast, it is rather the socially controlling dimension of images which dominates.

3.9.2 L aw’s Scepticism About Images – A Reaction to the Anarchy of Images? Modern law is very language-oriented and is sceptical, even dismissive of images. There are various reasons for this, some of them historical.369 An important reason for this is likely to be the differing extents to which words and images are suitable for use for social control. Law has a function – not the only one, but it is one – of regulating and managing social behaviour within society.370 This sits well with language as a social institution and social means of control. Language is therefore the ideal instrument for the law to exercise social control. But images – at least partially – have exactly the opposite function: they offer the individual space to escape from the social and legal pressures from society to conform. At first sight images are therefore truly not a suitable medium for the law to carry out its regulatory and controlling functions. Modern law therefore has tended to see its task more as restricting the potential of images for freedom, almost for anarchy. How this distrustful and hostile relationship between the law and images might change fundamentally will be analysed as part of this study.

Bibliography Abelson, Robert P., (1981): Psychological Status of the Script Concept, American Psychologist 36/7, P. 715 ff. Adam, Meike (2004): Symbol oder Symptom? Lesbarmachung des Gesichts, in: Petra Löffler/Leander Scholz (Ed.): Das Gesicht ist eine starke Organisation. Cologne, P. 121 ff. Adler, Jeremy/Ernst, Ulrich (1990): Text als Figur. Visuelle Poesie von der Antike bis zur Moderne. 3. Edition Weinheim. Albrecht, Clemens (2007): Wörter lügen manchmal, Bilder lügen immer. Wissenschaft nach der Wende zum Bild, in: Wolf-Andreas Liebert/Thomas Metten (Ed.): Mit Bildern lügen. Cologne, P. 29 ff. Albrecht, Hans Joachim (1974): Farbe als Sprache. Cologne. Altheide, David L. (1985): Media Power. Beverly Hills. London. Anders, Günther (1956/2002): Die Antiquiertheit des Menschen 1. Über die Seele im Zeitalter der zweiten industriellen Revolution. 1. Edition Munich 1956 (quoted here from the 2nd edition of Beck´sche Reihe, Munich 2002.). Arnheim, Rudolf (1980): Anschauliches Denken – Zur Einheit von Bild und Begriff. 4th Edition Cologne. 369 370

At length on this see below Chap. 4.1. On the guidance function of the law Rehbinder (2009), P 100 ff. inter alia.

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Pöppel, Ernst (2000): Grenzen des Bewusstseins. Wie kommen wir zur Zeit und wie entsteht Wirklichkeit? Frankfurt am Main/Leipzig. Pörksen, Uwe (1997): Weltmarkt der Bilder. Eine Philosophie der Visiotype. Stuttgart. Postman, Neill (1999): Wir amüsieren uns zu Tode, 12. Edition Frankfurt am Main. Pylyshyn, Z. W. (1984): Computation and cognition. Cambridge, Mass. Rehbinder, Manfred (2009): Rechtssoziologie. 7th Edition Munich. Rehkämper, Klaus (2005): Ist der Begriff der bildhaften Ähnlichkeit wirklich undefinierbar? in: Klaus Sachs-Hombach (Ed.): Bildwissenschaft zwischen Reflexion und Anwedung. Cologne, P. 242 ff. Riepl, Wolfgang (1913): Das Nachrichtenwesen des Altertums. Mit besonderer Rücksicht auf die Römer. Leipzig/Berlin (hier zitiert nach dem Nachdruck 1972, Hildesheim/New York). Ringlstetter, Max/Kaiser, Stephan/Knittel, Susanne/Bode, Philipp (2007): Der Einsatz von Prominenz in der Medienbranche: eine Analyse des Zeitschriftensektors, in: Thomas Schierl (Ed.): Prominenz in den Medien. Zur Genese und Verwertung von Prominenten in Sport, Wirtschaft und Kultur. Cologne, P. 122 ff. Rippl, Gabriele (2006): Intermediale Poetik: Ekphrasis und der „iconic turn“ in der Literaturwissenschaft, in: Torsten Hoffmann/Gabriele Rippl (Ed.): Bilder. Ein (neues) Leitmedium? Göttingen, P. 93 ff. Roessler, Paul (2000): Von der Virgel zum Slash. Zur Zeichensetzung zwischen Gutenberg und Internet, in: Zeitschrift für Germanistik. New series, Vol. 3, P. 508 ff. Röhl, Klaus F. (2003): Was ist ein Bild?, in: Dieter Dölling (Ed.): Jus humanum. Grundlagen des Rechts und Strafrecht. Berlin, P. 227 ff. Röhl, Klaus F./Ulbrich, Stefan (2000): Visuelle Rechtskommunikation, in: Zeitschrift für Rechtssoziologie 21, P. 355ff. Roßnagel, Alexander (2000): Erster Teil. Einführung, in: Roßnagel, Alexander (Ed.),Recht der Multimediadienste. Loseblattkommentar Munich, Rn. 1 ff. Roßnagel, Alexander/Knopp, Michael (2006): Mobilisierte Verwaltung: Perspektiven und rechtlicher Gestaltungsbedarf, in: Die öffentliche Verwaltung, P. 982 ff. Roth, Gerhard (2003): Fühlen, Denken, Handeln. Frankfurt am Main. Rüthers, Bernd (1999): Rechtstheorie. Munich. Saar, Martin (2002): Wem gehört das kollektive Gedächtnis? Ein sozialphilosophischer Ausblick auf Kultur, Multikulturalismus und Erinnerung, in: in: Gerald Echterhoff/Martin Saar (Ed.): Kontexte und Kulturen des Erinnerns. Maurice Halbwachs und das Paradigma des kollektiven Gedächtnisses. Konstanz, P. 267 ff. Sachs-Hombach, Klaus (2003): Das Bild als kommunikatives Medium. Hamburg. Sachs-Hombach, Klaus (2005): Vom Text zum Bild - Wege für das Recht, in: Eric Hilgendorf (Ed.): Beiträge zur Rechtsvisualisierung. Berlin, P. 163 ff. Sandbothe, Mike (1998): Theatrale Aspekte des Internet. Prolegomena zu einer zeichentheoretischen Analyse theatraler Textualität, in: Herbert Willems/Martin Jurga (Ed.): Inszenierungsgesellschaft. Wiesbaden, P. 583 ff. Sauerländer, Willibald (2004): Iconic Turn? Eine Bitte um Ikonoklasmus, in: Christa Maar/Hubert Burda (Ed.): Iconic Turn – Die neue Macht der Bilder. Cologne, P. 407 ff. Schauer, Frederick (1988): Formalism, in: The Yale Law Journal, Vol. 97, P. 509 ff. Schelske, Andreas (1998): Zeichen einer Bildkultur als Gedächtnis, in: Klaus Sachs-Hombach/ Klaus Rehkämper (Ed.): Bild – Bildwahrnehmung – Bildverarbeitung. Interdisziplinäre Beiträge zur Bildwissenschaft. Wiesbaden, P. 59 ff. Schierl, Thomas (2003): Der Schein der Authentizität: Journalistische Bildproduktion als nachfrageorientierte Produktion scheinbarer Authentizität, in: Thomas Knieper/Marion G. Müller (Ed.): Authentizität und Inszenierung von Bilderwelten. Cologne, P. 150 ff. Schierl, Thomas (2007): Prominenz aus medienökonomischer Perspektive, in: in: Thomas Schierl (Ed.): Prominenz in den Medien. Zur Genese und Verwertung von Prominenten in Sport, Wirtschaft und Kultur. Cologne, P. 98 ff. Schierl, Thomas (2007a): Prominenz in den Medien. eine empirische Studie zu Veränderungen in der Prominenzberichterstattung im Zeitraum 1973 bis 2003, in: Thomas Schierl (Ed.): Prom-

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Chapter 4

The Law and Images – A Difficult Relationship

In the modern law there are almost no images. The law cultivates a sceptical, not to say hostile attitude towards images? Does this have to be the case? The scepticism of modern law towards images is the result of historical development. It is not an inevitable result of the character and inner rationale of the law. Therefore it is not surprising that gradually more and more often images and graphics are to be found in modern law. This could be the start of a new trend: the visualification of law. But we must not harbour any illusions: visualification would change the law as a whole a great deal.

4.1 W here Have All the Images Gone? – Modern Law Without Images The law and images – that is, as a glance at legal history will show, a very ambivalent relationship. At least the Western legal traditions and institutions have developed with and through as well as against images. At present the law is mainly hostile to images. Possibly this will have to – and will – change in future.

4.1.1 Between Idolatry and Iconoclasm – Images in Society Viewed historically the position of images has always been highly disputed. Images and iconoclasts have always held equal power. This is linked to the communication

At length on this Goodrich (1995), P. 41 ff. inter alia. Arnheim (2000), P. 167, reduces this to the formula of “Coming and Going of Images”. Brunschwig (2001), P. 77, talks in this context correctly of the “Oscillation of images between low and high valuations”. A similar to-ing-and-fro-ing can be seen in the history of Christianity which has always swung back and forwards between iconoclasm and love of icons (and still does). On this Belting (2000), P. 54 ff. This is the seminal theory from Bredekamp (1975).


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function of images – and to their effectiveness. Images transmit not only content but also value judgements and feelings. That has a strong impact on observers and often provokes violent reactions, which can go as far as the destruction of the images. Images and art have always been one means of establishing and consolidating power. Quite commonly the battle over the images was also the expression of social conflicts and struggles. At the same time power and control was always being challenged and attacked by images and art. Iconoclasm was – and is – an ideological instrument, which can be turned in any direction. This can be illustrated by a brief historical outline of the history of images since ancient times. In the ancient West images were held in high esteem. The whole of religion revolved around holy images.10 And in the secular world images were expected and found everywhere. Images of the emperor were revered, as were images of famous philosophers. Religious images created social identity and social cohesion11 – or upset or destroyed them.12 Peace-maker or peace-breaker – not least this ambivalence of images explains why historically periods which valued images were always followed by iconoclasts – and vice versa.13

Metzler (1973), P. 14, already pointed out this link. At length on the presentation in images of rulers and power in modern history v. Beyme (1998), P. 53 ff. inter alia. Thoroughly on how power represents itself, Popitz (1992), P. 185 ff. Belting (2000), P. 166. Frequently a revolution was also a battle of images. Thus Bredekamp (1975), P. 251 ff. An example of this is the Byzantine Iconoclasm between 730 and 841 n. Chr. At length on this Brock (1973), P. 30 ff. von Beyme (1998), P. 145 ff., who correctly talks about the “Resisting power of art”. On iconoclasm as an attack on symbols of power Warnke (1973), P. 84 ff. Thus very pointedly Metzler (1973), P. 28. An informative example of this are perhaps the discussions and arguments which preceded the Nazi iconoclasm. On this Struwe (1973), P. 122 ff. The struggle between idolatry and iconoclasm can of course be traced much further back into the past. On the ban on images in ancient Egypt Assmann (2003), P. 83 ff. At length on the dialectic of images and iconoclasm in Africa Goody (1997), P. 35 ff. inter alia. 10 Because religious images were so important, they needed a theological legitimisation. On the basis of religious images a sophisticated theology of images grew up. On this Schwindt (2005), P. 197 f. inter alia. 11 Douzinas (2003), P. 152. 12 Belting (2005), P. 176. 13 Informative on this Metzler (1973), P. 14 ff., who works up the different motives for iconoclastic episodes in ancient times. Informative on this are also the struggles between a relatively imagefriendly Buddhism and the very image sceptical Confucianism. On this Goody (1997), P. 60 ff.

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Early Christianity14 fought against the cult of the image in the Ancient World quite vehemently.15 The ban on graven images from the Old Testament seemed clear.16 Like the Jewish, Islamic and Buddhist religions, the early Christians also saw representation in images as an attempt to reduce God, the transcendent, unimaginable to a human scale.17 For the early Christian communities in the Roman Empire, the rejection of images became an important part of their identity and a distinguishing feature – theologically, socially and politically.18 Hostility to images was a way to differentiate themselves from the other, image-fixated religions.19 The Christian religion was not able to persist with this image-hostile attitude. Quite the opposite: from the seventh century onwards, Christianity opened up to visual communication and20 a long tradition of Christian images began.21 For centuries you could even talk about a theology of worshipping images.22 Since Pope Gregory I in the sixth century images were referred to as the layman’s Bible.23

14

Belting (2000), P. 164; Gombrich (1996), P. 135. Schwindt (2005), P. 197, traces this back to the fact that initially Christianity was still coloured by the Jewish ban on images. Belting (2005), P. 11, points out that the early Christians’ iconoclasm was also a way of differentiating themselves from the image-dominated polytheistic neighbouring religions. Similarly also Assmann (2003), P. 98 ff., who sees an origin of the ban on images in monotheism. But it is not just Christianity that has an image- sceptical tradition. Other world religions also have a strong iconoclastic tendency. On this Douzinas (2003), P. 154 f. 15 Wortmann (2003), P. 25 f., and Brumlik (2006), P. 57. The struggle between heathen religions and Christianity was fought over images, theologically and very practically. 16 Deuteronomy 5, 8 and Exodus 20, 4. On this Grabar (1977), P. 86 f., Boehm (2007), P. 57 ff. 17 V. Brück (2006), P. 209. Similarly Boehm (2007), P. 58. On the aniconism of Islam Naef (2007), P. 15 ff. 18 Kopp-Schmidt (2004), P. 67. Other reasons for the initial rejection of images by Christianity were its origins from – also decidedly image-unfriendly – Jewish religion and theological arguments. At length on this Kopp-Schmidt (2004), P. 67 ff. 19 On the theological-systematic justification for the Christian ban on images Höhn (2004), P. 45 ff. At its core it is a ban on creating an image of the creative deity, in order to stress his transcendence, non-accessibility, his very godliness. 20 Brumlik (2006), P. 57 f. inter alia. Kopp-Schmidt (2004), P. 68 ff., traces how images gained in importance and to the same extent were justified more strongly theologically. In spite of its basic scepticism about images even Buddhism has early visual representations of Buddha – as a means of visualised meditation. On this von Brück (2006), P. 209 f. 21 On this Gombrich (1996), P. 135; Belting (2000), P. 164 ff. At length on the “Decay of the Christian ban on images” in the late ancient period Bredekamp (1975), P. 15 ff. 22 Schwindt (2005), P. 197 f. inter alia. Bredekamp (1975), P. 45 ff., traces the theological lines of battle in the late ancient period, which were linked to the development from rejecting images to approving images. 23 This is how Pope Gregory (590-604) reacted to the communication problems of the church in the fragmented and collapsing Roman Empire. On this Müller (2007), P. 73 f.

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Other religions have known a similar oscillation between venerating images and iconoclasm.24 Islam has always been strongly marked by a ban on images.25 But it has also had phases – this is shown by the history of Arabic, Persian and Ottoman art – when images were less scorned.26 Since the nineteenth century the importance of images in the Islamic world has grown steadily.27 As in other religions too, this leads to violent conflicts and sharp disagreements.28 In the Christian West the kudos of images changed again clearly towards the end of the Middle Ages. From the late Middle Ages the belief in the ratio scripta gradually imposed itself.29 Anything which was important was put in writing and so preserved. For a long time we then suffered from the opposite conclusion which is, however, false: everything which exists in writing is correct and true.30 The increasing criticism of the veneration of images from the Catholic late Middle Ages31 grew into iconoclasm.32 As a side-effect of the Reformation, iconoclastic movements and outbreaks could be found all over Europe from the sixteenth century onwards.33 The standing of images rapidly dwindled. At the latest by the late sixteenth century the illustrated book became the exception.34 Finally it was the Reformation, which marked a clear break with the imagedominated culture.35 Protestantism deliberately used a written culture to distance 24

Informative on this Grabar (1977), P. 104, who recognises a “latent iconophobia in every culture”. 25 At length on the religious roots and the cultural effects of the Islamic ban on images, Heine (2005), P. 828 ff. inter alia. The ban on images has influenced not least also Islamic architecture until the present day. On this Scharabi (2005), P. 839. Thoroughly and selectively on the relationship between Islam and images, Grabar (1977), P. 79 ff. 26 Very informative on this Naef (2007), P. 36 ff. with many examples. 27 At length on this Naef (2007), P. 73 ff., who reduces this to the formula: “from rarity to excess”. 28 Naef (2007), P. 110 ff. describes the discussions within the Islamic clergy. 29 Senn (2003), P. 57. 30 Senn (2003), P. 56, talks in this context correctly of “a type of fetishism”, which was only gradually overcome by humanism. It was only then that texts began to be analysed critically in relation to their sources. 31 Schnitzler (1996), P. 29 ff. inter alia, traces the changes in theological rhetoric since the 14th century, which preceded the iconoclastic activities of the 16th century. 32 Belting (2000), P. 511 ff. 33 Schnitzler (1996), P. 145 ff. inter alia, who describes in detail the European iconoclasm from the start of the 16th up to and into the 17th centuries. On the theory and practice of the iconoclasts after the Reformation, Warnke (1973), P. 69 ff. 34 Röhl/Ulbrich (2000), P. 362, although they incorrectly ascribe this to the influence of the Renaissance. During the Renaissance images and culture enjoyed a huge florescence. On this Belting (2000), P. 284 ff. inter alia. 35 Although the replacement of the image culture by the text culture did not happen overnight, but rather was a lengthy process which advanced and receded. Kopp-Schmidt (2004), P. 150 ff., describes the arguments between veneration of images and iconoclasm, between Reformation and counter-Reformation in detail. At length on the very differently expressed hostility to images of different reformers Brumlik (2006), P. 67 ff.

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itself from the Catholic cult of images.36 Martin Luther moved words and writing to the centre stage of the gospels and proselytising.37 Since then words, not images, have dominated increasingly in Western culture.

4.1.2 Deeply Sceptical – Modern Law and Images Images have a shadowy existence in modern law.38 Legal texts – whether laws, judgements or learned documents – on the whole contain no images or graphics. Text-books without images are almost symbolic of the subject of law.39 Although even here – as in all things in life – the exceptions prove the rule. The Highway Code with its images of traffic signs and signals is the most obvious example. And in the fields of invention, patent and brand ownership, law images are not just normal, they are indispensable. A further example is metaphors which are also common in modern law. Nevertheless: images are the exception. Why is that the case? Is the scepticism of modern law towards images an absolute functional necessity, or the result of contingent historic processes due to specific circumstances? Or is the law somehow afraid of images? The law was not always the enemy of images. The history of the law obviously reflects the oscillation between idolatry and iconoclasm which shapes the cultural history of images. Classical Roman law for example, was strongly rooted in the everyday views and experiences of real life. Legal arguments were concrete and visual.40 That reflected the generally high standing of images of the time. And in the law of the Middle Ages, images and illustrations played a major role.41 Mediaeval legal texts and sources of law are on the whole richly illustrated.42 The best-known 36

A. Assmann (2001), P. 203, who talks about a “heightened inter-denominational confrontation”. Nevertheless in the 16th and 17th centuries there was still a specific image-word-speech. At length on this Harasimowicz (1990), P. 264 ff. 37 Harasimowicz (1990), P. 262 inter alia. Höhn (2004), P. 52 talks about the downgrading of the religious image in favour of writing and preaching. Luther talks about sola scriptura, not of sola pictura. Although Luther had a mores sophisticated relationship to images than the iconoclasts of the 16th century. Belting (2000), P. 515 f., stresses this as does Brumlik (2006), P. 69. This comes out clearly from Luther’s writings, which Belting (2000), P. 609, reproduces. Wenzel (2001), P. 193 f., shows that Luther uses metaphors quite deliberately, to increase the persuasiveness of his arguments. That is obviously one reason for the “powerful imagery of Lutheran language”. 38 Baer (2004), P. 240, supplies this fine image to describe the status of images in the modern law. Similarly Brunschwig (2001), P. 150; Röhl (2005), P. 247. Differently, but not really convincing Vismann (2007), P. 18 f. 39 Thus tendentiously Röhl/Ulbrich (2000), P. 362. 40 Wesel (2001), P. 156.; Großfeld (1995), P. 26 f. 41 At length on this Blümle (2007), P. 84 ff. and Hibbitts (1992), P. 912 ff., with many examples of how legal content were expressed visually. 42 An impression of this is given by the material that Fehr (1923) and Kocher (1992) present. Already the legal research of the 17th and 18th centuries – in iurisprudentia picturata and iurisprudentia symbolica – looked at the speech imagery of mediaeval law. On this Carlen (1995a), P. 260.

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example – though by no means the only one43 – is the calligraphy of the Sachsenspiegel.44 Mediaeval legal texts use illustrations with a purpose, to achieve specific communication effects.45 The gruesome representation of various punishments is supposed to deter potential criminals.46 Images of justice in different presentations were not just decoration: they reminded judges to judge correctly and fairly.47 The invention of woodcuts and of book printing in the fifteenth century initially actually promoted the use of images in legal texts.48 Another proof of how open mediaeval law was to images is the effigies of the late Middle Ages and early Renaissance. Justice was executed on effigies49 – so likenesses, or in modern parlance “doubles” – if the real person could not be found. Executions in effigy were just as common as expensive funeral ceremonies, where true-to-life images of the deceased – or effigies – were used.50 So visual legal communication was a common practice in the Middle Ages. A balance existed between the legal text and the legal image.51 Although all that changed with the Reformation.52

4.1.3 Sola Scriptura – The Logocentric Bias of Law It is not just since the Reformation that images have been linked with sensuality53, sin54, emotions and irrationality.55 There are important roots here for the logocentric

43 Another example is the illuminated Swiss Chronicles since the 15th century, which contain a wealth of legal historical material. On this Carlen (1995a), P. 267 f. Also the manuscripts from the 14th century on the corpus iuris civilis are lavishly illustrated. On this Carlen (1995b), P. 256. 44 Kocher (1992), P. 10; Brunschwig (2001), P. 150. 45 At length on this Ott (1986), P. 33 ff. inter alia; Schmidt-Wiegand (1986), P. 11 ff. inter alia. Even earlier on this Fehr (1923), P. 20 ff., who suggests an initial typology of different legal images. 46 Carlen (1995a), P. 265. Earlier Fehr (1923), P. 25 with examples. 47 Carlen (1995a), P. 264; Carlen (1995b), P. 246 ff. inter alia. On this already Fehr (1923), P. 25 with examples. 48 Röhl/Ulbrich (2000), P. 362. 49 On effigies seminally and at length Kantorowicz (1992), P. 422 ff. inter alia. 50 On this at length Marek (2007), P. 48 ff. In the 16th century the image of the king was seen to be more important for the funeral rites than the corpse itself. On the reasons for this Kantorowicz (1992), P. 425 f. inter alia. That also today in modern democracies effigies are used is shown by the informative presentation by Manow (2008), P. 129 ff. with examples. 51 Großfeld (1995), P. 27. 52 But Röhl (2005a), P. 270, sees it differently, and strongly downplays the importance of the Reformation for the hostility of the law to images. 53 At length on the sensual function of images Schuck-Wersig (1993), P. 103 ff. 54 This harks back to Tertullian who talks in his De Idolatria about the “sin” of worship of images. On this Goodrich (1995), P. 56 f. 55 On this Goodrich (1995), P. 56.

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bias56: above all written language is rational. Images are inherently primitive or at best decorative.57 Modern legal thought is still caught up in this highly problematic58 tradition. The law should not be emotional and irrational. Art – including images – is seen as intrinsically subjective.59 In its scepticism about images the modern law follows in the tradition of Hegel and his distinction between logical and objective law on the one hand, and sensual and free art on the other.60 The aim of the law is to determine “the truth”, using a rational process and applying logical methods. For this, images – according to the prevailing dogma61 – are not helpful, and are even counter-productive.62 Whether that is even right is already doubtful empirically. Because a glimpse into the history of law has shown that the law and images were not always viewed as self-contradictory. Modern law is apparently still caught up in its logocentric prejudice.

4.2 Symbols – Searching for Images in Law Images contain multiple levels of meaning.63 Therefore they are particularly well suited for use as symbols.64 The symbolic potential to be found in images has been exploited for centuries. So it is hardly surprising that symbols also have important

56 The concept of “logocentrism” was coined by Derrida (1983), P. 11 ff. A. Assmann (2001), 204, goes even further back when looking for the cultural-historical roots of this attitude and finds even in Horace an emphasis on poetry which is more tied to writing compared to the other arts. The brief but withering comments from Habermas (1985), P. 136 f., are informative about logocentric rationality. 57 An example of the – not unjustified – criticism by Postman (1999), P. 95 ff., of television, of image media generally. 58 Douzinas (2003), P. 150. Lévi-Strauss (1978), P. 294, refers to the role writing has played in exploitation and colonisation. Derrida (1983), P. 178 ff., picks up on this and talks in this context about the “violence of the alphabet”. 59 Douzinas (2003), P. 147. 60 Douzinas (2003), P. 147, refers to this. 61 For the majority opinion Schulze-Fielitz (2003), P. 444 f. inter alia, who traces back the “strict legal rationality” primarily to the “abstraction of the image-free language of written texts”. Schuppert (2004), P. 75 ff. shows in detail, that the case law of the German Constitutional Court reflect the problems of modern law with images. But some voices dissent from the majority opinion. Brunschwig (2001), P. 208 ff. and pass., in particular seems seminal in stressing the strengths and the extended options of visual communication of legal matters. 62 Exemplary for this Schulze-Fielitz (2003), P. 444 f. inter alia, who stresses the “abstraction of the image-free language of written texts” as an important instrument of jurisprudence and case law. Here there are interesting parallels to TV news. Like the law they are committed to being objective. Images and emotions are therefore a problem for them. Nevertheless we can note an increasing visual element in TV news programmes. At length on this problem Schramm/Wirth (2006), P. 38 f. 63 At length on this see above Chap. 3.3. 64 Kroeber/Riel (1996), P. 133.

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functions within the law.65 The history of legal symbols is a long one. What makes symbols so important? Why do they shape our world and our lives? What importance do they have for the law?

4.2.1 Symbols There are different definitions of what a symbol is.66 As a minimum definition of a symbol perhaps we could start with the sign-theory concept of a symbol. In signtheory, a symbol in the narrower sense is held to be any communicative sign which has specific characteristics: it is vivid and represents a meaning.67 A symbol is also a sign that does not stand just for itself, but refers to something else, which it stands for or represents.68 Symbols are – in other words – forms of expression which extend the options of human expression and comprehension.69 They are an important aid to thought70 and communication71. Only via symbols can communications systems exist, which enable culture and knowledge. Symbols are a means of applying meaning: using them can combat chaos and impose order.72 They therefore have enormous importance for the development – both individual and collective – of identity. They are a way of expressing identity73, and even more: they confer identity on groups and

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On legal symbolism generally Carlen (2002), P. 202 f. inter alia. On the concept of the symbol from a philosophical viewpoint, seminally Cassirer (1956), P. 175 f.; Schwemmer (2006), P. 7. Other definitions of symbols can be found in other fields. A cursory overview is given by Sarcinelli (1987), P. 55 ff. inter alia. Informative on this Schlesinger (1912), who has collected several hundred symbol concepts. 67 Seminal on the concept of a symbol from a semiotic viewpoint Peirce (1934/1991), 5.73 ff., P. 362 ff. 68 Also Luhmann (1998), P. 319 inter alia. Similarly even earlier Noll (1981), P. 347. To explain this using one of the best-known symbols ever: the cross is not at all just a construction of two pieces of wood laid over each other. It refers to and represents the Christian faith and its content. In addition it has other, legally relevant symbolic contents. On the cross as a legal symbol Carlen (2002), P. 132 f. inter alia. Another example is the white dove: it is not just a special creature, but also stands for the abstract concept of peace. 69 Burke (1989), P. 56, meaningfully refers to humans as “symbol-using animals”. Ernst Cassirer notes the accessibility of symbolic shapes and stresses their importance for thought and recognition. At length on this Cassirer (1923), P. 5 ff., 17 ff.; Cassirer (1956), P. 175 ff. 70 Cassirer (1923), P. 18, who describes signs as necessary and important organs of thought. Similarly Langer (1957), P. 60 ff., who describes symbols as “vehicles for the conception of objects”. Goodman (1997), P. 237, stresses that the aim of symbolising is always the wish for enlightenment and understanding. 71 Goodman (1997), P. 236 f., who refers to symbols as “communication media”. At length on language as symbolic action Burke (1989), P. 77 ff. 72 Thus very pointedly Kertzer (2006), P. 365. Similarly Soeffner (2000), P. 208. 73 Bonus/Bayer (2000), P. 288. 66


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so ensure collective solidarity.74 In brief: without symbols modern societies cannot function.75

4.2.2 Symbols in Law From the start the law has faced the challenge of communicating highly abstract contents as vividly as possible. For this it has developed a sophisticated language of symbols of many types.76 The best-known image is Justitia with her eyes blindfolded77 and holding a pair of scales and a sword in her hands.78 The cross was an important legal symbol79 – and still is, at least in part, today.80 Right up to the present day, the importance of legal symbols is particularly clear during a court hearing. Legal processes are riddled with symbolic communication.81 This starts with the clothing of the participants in the trial.82 Even now, the robes of the judge, prosecutors and lawyers symbolise equality before the law and the court.83 The symbolic content of the judge’s robes goes still further. Its outward similarity to a priest’s vestments84 surrounds the judge 74

Durkheim (1994), P. 317 f. A striking historic example of this is analysed by Brunn (1989), P. 104 ff. He documents the huge influence of the statue of “Germania” (by the Rhine in Koblenz) on the development of a national identity and the creation of the German nation state in the 19th century. The effect of political symbols can also be seen in the example of the Nazi-Regime: the Nazi approach to the world worked with strong symbols of mass psychology. At length on this Ueberhorst (1989), P. 157 ff. inter alia, and Schug (2007), P. 328 ff. 75 Similarly earlier Durkheim (1994), P. 317. On the power of symbols thoroughly Schwemmer (2006), P. 7 ff. On the importance of symbols in politics Kertzer (2006), P. 366 ff. 76 That becomes clear if you are aware of the many different forms, with which law has presented the concept of freedom symbolically. At length and in detail on this Kocher (1986), P. 405 ff. inter alia, and many examples. 77 For a very sophisticated and contentious symbolic interpretation of the blindfold at length Schild (1995), P. 195 ff., and Kissel (1997), P. 82 ff. with many examples of different representations of Justitia. 78 At length on the symbolic content of this and other representations of justice Carlen (1995a), P. 262 ff. At length on the importance and the history of symbols of the scales and sword Schild (1995), P. 181 ff., and Kissel (1997), P. 92 ff. inter alia. Also Kocher (1986), P. 412 ff., stresses the special importance that the scales have as legal symbol even today. 79 Carlen (2002), P. 132; Carlen (1995), P. 360. 80 That becomes strikingly clear from the crucifix decision of the German constitutional court (BVerfGE 93, 1 ff.) and the controversy that surrounded it. On this Vorländer (2006), P. 10 inter alia. The heat of the debate is linked to the fact that the cross is such a strong symbol. 81 At length on symbolic communication and its function Babendererde (2004), P. 51 ff. with examples from court practices in the late Middle Ages. 82 On the symbolic effects of clothing generally in the law Kocher (1986), P. 407 f. 83 Generally on the symbolic meaning of special clothing at court Watkin (2004), P. 151 ff. inter alia. 84 Gephart (2006), P. 254, draws attention to this similarity and in ibid, P. 257, even talks about he “judge-priest”.

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with an aura of the sacred, the important, and the last resort. In the Middle Ages, punishments with a symbolic component were common.85 In fact the sentence imposed by the court itself is not just an operational sanction, it is also simultaneously a symbol. It stands for the law refusing to accept injury and defending its power. You can go a step further. The court process itself is a symbol. As long as cases are tried, the legal system is working. Each case is a symbol therefore, in effect, of the rule of law. Cases which cause a stir, which become known in the wider public, have a symbolic meaning, which goes beyond their own content. They can be interpreted as “social dramas”.86 Frequently, basic psychological, social or economic conflicts are played out using the example of a specific case. Court procedures thereby symbolise cultural conflicts, which become visible and tangible thanks to a trial. One of the most important symbols of justice is a law.87 Laws have a symbolic effect which goes far beyond their technical content.88 Laws have – in other words – a dual nature.89 They have an operational, instrumental task; the legislator wants to use them to impose their will. But that is not the whole story. In addition they also have a symbolic function. Both functions are often closely linked to each other.90 What do laws symbolise? Laws are still symbols for the fact that everything is being done according to the law and following the rules. This can be reinforced by the length and the detail of a legal text – again symbolically.91 Laws signal that the legally constituted state is working and is solving problems. Legal language is – over and above its function as an instrument – also a symbol.92 Its highly formal flavour and its imperative mode signal authority and decisiveness.93 The language of the law is emphatically sober, (apparently) very precise94 and also quite often, hard to understand.95 In this way it creates the impression that there is a sober, objective, sensible and well-functioning legal system. Overall, 85

On this with examples Watkin (2004), P. 162 f. Sherwin (2000), P. 73 ff. 87 Similarly Siehr (2005), P. 546, who ascribes a symbolic dimension to every law per se. 88 Similarly Struck (2001), P. 374 and Schild (1986), P. 197, especially relating to criminal law. 89 Seminal on this Gusfield (1986), P. 169. Hegenbarth (1981), P. 201. At length on symbolic legislation Newig (2003), P. 51 ff., who identifies three types. 90 Kindermann (1989a), P. 229. 91 On the communicative effect of longer legal texts Struck (2001), P. 382 f. 92 On the symbolic character of legal language Edelman (2005), P. 174. 93 Similarly Edelman (2005), P. 177. On the linguistic characteristics of legal language from a linguistic point of view Hansen-Schirra/Neumann (2004), P. 169 ff. inter alia. 94 Critically on the precision of lawyers’ language Edelman (2005), P. 174. The necessity for and the limits of precision in legal language is investigated by Schroth (1992), P. 93 ff. inter alia using the example of criminal law. 95 Legal language is characterised by long sentences, circumlocutions, new coinages, chains of nouns and gerunds. That makes it hard to understand. On this at length and in detail Hansen-Schirra/Neumann (2004), P. 169 ff. inter alia; Schendera (2004), P. 321 ff. inter alia. Thoroughly on legal language as a specialist language from a judicial viewpoint Neumann (1992), P. 110 ff., and from a linguistic viewpoint Wimmer (1998), P. 8 ff. 86


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legal language is therefore a symbol for a decisive, active and functional state. That legal language is rarely elegant and easy to understand is not a coincidence96: it is not supposed to symbolise literary qualities or populism.97 A further example are the preambles to constitutions.98 Grandiose in tone they often refer to higher powers or nobler values or concepts, which are greater than the individual. That symbolises the timeless importance of the constitution. Legal institutions also have a high level of symbolic content. An important example of this is the German Federal Constitutional Court.99 Alongside its operational functions it is also a symbol: it stands for the well-functioning constitution. A symbol which is known world-wide is the United Nations. Its legal responsibilities are limited, its influence in terms of political power is fairly low. This just makes its symbolic importance all the greater.100 The UN is a vector of hope101 with global reach: it embodies the hope of peace, an effective world-domestic policy102 and a global “Civil Society”.103 On the other hand, the United Nations is also viewed as a negative symbol. It can take on the role of “whipping boy” or “scapegoat” if it does not fulfil raised expectations.104 Neither of these should be underestimated in their importance for international politics, diplomacy and finally for the internal policies of the member states. Symbols do not just play a major role in the law. You can go a whole step further. The law itself has a symbolic meaning and symbolic functions.105 To exaggerate a bit: the law itself is a symbol. Whether the law can actually guarantee stability and 96

Similarly Enzensberger (2004), P. 83: “Lack of intelligibility is part of the aura of the law”. Only an incomprehensible legal language is suitable as the language of the rulers. Fish (2004), P. 85 ff., refers to another reason for the formalised and hard to follow legal language: lack of comprehension and formalism guarantee the law its autonomy. 97 Whether the law and legal language in a democracy should be easier to understand is a hotly discussed issue. Very strongly in favour of better overall comprehensibility of laws as a democratic argument is Klein (2004), P. 197 ff. On this using the example of the German constitutional law, Häberle (2004), P. 155 ff. More sophisticated on being understandable as a requirement on legislators Lerch (2004), P. 239 ff. inter alia On the comprehensibility of legal language very thoroughly and in detail Hoffmann (1992), P. 124 ff. with informative examples. Christensen (2004), P. 21 ff., stresses the task of the courts in making the law comprehensible. But whether the courts actually fulfil this task in practice is doubtful. 98 On this Noll (1981), P. 356 f. 99 At length and critically on the symbolic function of the German Constitutional Court Massing (1989), P. 235 ff. inter alia This court enjoys a very level of institutional trust among the population. At length on this Vorländer/Brodocz (2006), P. 261 ff., on the basis of a broadly representative poll. This is explained – as Vorländer/Brodocz (2006), P. 294, correctly assume – by its function as a symbol. 100 At length on the tasks of the UN as a symbol Wesel (2004), P. 135 ff. Seminal on the view of the UN as a sacral drama and symbol O’Brien (1971), P. 10 ff. and pass., and Boyd (1967), P. 14 ff. 101 Wesel (2003), P. 611; Wesel (2004), P. 137 ff. inter alia. 102 Wesel (2003), P. 604 ff. 103 Wesel (2004), P. 139 f. 104 Wesel (2003), P. 611 f. with examples from UN history. 105 Greenhouse (1989), P. 1640, goes further and ascribes a mythical dimension to the law.

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security in the future is not the point. But the law as such stands for the general expectation that societies in future will be stable and secure.106 So far this symbolic message of the law has got through to its targets. In modern civil states which are democracies there is still the majority feeling that the legal system produces security and justice. An indication of this is the major confidence which the population has in the legal institutions. The German Federal Constitutional Court, for example, is one of the most highly regarded institutions in society. Judges normally enjoy a particularly high social status among people.107 The fact that the law is also broken on a large scale seems so far to have made no impact on this basic attitude.

4.2.3 Symbolic Law Alongside law which has a symbolic function and meaning108, we can distinguish another category of law: symbolic law.109 This term is used to describe law that suggests legal solutions, is actually legal but is not, or barely, relevant.110 Symbolic legislation is widespread,111 although its legal usefulness is minimal. What is the reason for this, on first sight irritating, fact? Symbolic legislation has various different purposes. It shows basic decisions made by legislators which only affect a few people in reality and which primarily act as a way of establishing values.112 Its meaning therefore is above all its symbolic effect. A classic example113 for this is the ban on the death sentence in Article 102 of the German Constitutional Law. Quite frequently these are laws which are intended to reassure citizens114 or to 106

Similarly Luhmann (1993), P. 129 ff. inter alia. At length on this on an empirical basis Raiser (2007), P. 336 inter alia. On the confidence of the people in the German Constitutional Court Vorländer/Brodocz (2006), P. 259 ff., on the basis of a representative questionnaire. 108 Generally on the symbolic content of legal standards Raiser (2007), P. 243 ff. 109 On this Raiser (2007), P. 249 f. inter alia. 110 On this using the example of the symbolic environmental law Lübbe-Wolff (2000), P. 25. Symbolic laws can however be effective in other non-legal areas – such as politics, socially or in industry - and can be important. Very critically on symbolic law, that cannot be nor even should be applied, Bryde (1993), P. 13 ff., who in ibid, P. 17 f., the principle of equality and the principle of proportionality even deduces a “constitutional ban” on symbolic laws. 111 An overview of the history of the concept and various facets of this phenomenon is given by Newig (2003), P. 32 ff. inter alia The terminology is not always standard. On this Siehr (2005), P. 548 f. inter alia, and Kindermann (1989a), P. 225, who wants to make a clear distinction between symbolic legislation and symbolic law. At on symbolic criminal law Hassemer (1989), P. 554 ff. 112 Noll (1981), P. 358. Informative examples of this from criminal law are provided by Hassemer (1989), P. 554. 113 Another example is abortion legislation. On this Kindermann (1989a), P. 231 f. 114 Newig (2003), P. 51, and even earlier Noll (1981), P. 361, who uses mainly the terrorist legislation of the seventies of the last century as an example. Gusfield (1986), P. 117 ff., illustrates this using the prohibition laws in the USA at the start of the 20th century. Examples for this from the seventies of the last century are given by Hegenbarth (1981), P. 202 ff. A particularly revolting 107


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demonstrate decisive political action.115 If political differences cannot be resolved very often compromise laws are created.116 They are ineffective instruments, but pretend to the people that the state had the power to find a solution.117 Quite often it is precisely these laws, which have a solely or primarily symbolic value, which were politically particularly controversial.118 Soft Law is a further variant of symbolic law. This is law which is not binding and cannot be enforced by any central higher authority.119 Therefore Soft Law as law is meaningless. It does not in fact have all the typical characteristics that distinguish a law from general social rules.120 But Soft Law clearly symbolises – and this is its psychological and political importance – the expectations which are placed on the behaviour of those involved. The situation is similar for the Soft Institutions. This term is used to describe institutions whose decisions are adhered to by those concerned even though they are not legally binding. Examples for this are things like “round tables” or co-ordination discussions. If it is largely irrelevant: what is then the point of symbolic law? Symbolic law is not per se ineffective or meaningless. It does not work using the legal range of instruments such as authority and force. But legal symbols do develop their own, politically effective psychological-moral dynamics. In this way they can have an extremely strong influence on human behaviour.121 Andres states it this way: symbolic law can instigate non-legal, informal processes which lead to respect of the law, which itself is non-binding.122 Symbolic law quite often stands for targets which example of a symbolic law is the Nazi regime’s “Law on measures of state self-defence” of 3 July 1934. On this Struck (2001), P. 379. 115 Kindermann (1989), P. 268, talks in this special case of the symbolic legislation of the “Alibi law”. Hegenbarth (1981), P. 204, sees a fragile link between symbolic laws and the legislator losing touch with reality. Whether all his examples for this are convincing is doubtful. But this theory is at least plausible, that symbolic legislation and fictitious political solutions to problems have the inherent risk that in the long-term, the fiction and not the reality become the standard for action. 116 This category of symbolic legislation is proposed by Newig (2003), P. 52 f. inter alia. 117 Rehbinder (2009), end of P. 202 stresses that in some political situations the parties involved believe an ineffective solution is better than no law at all. Then the law has solely a symbolic function. But Schild (1986), P. 198 f. points out correctly that therefore even symbolic laws (can) have an actual effect. Against an across-the-board under-estimation of symbolic laws also Bryde (1987), P. 37, who reports that in post-colonial Africa modern laws often had a mainly symbolic function: they symbolised modernity and sovereignty. So criticising them as ineffective instruments is selling them short. 118 Noll (1981), P. 350 ff., who uses informative examples of this from recent legal history. 119 On this Röhl/Röhl (2008), P. 222. 120 Therefore very critical on Soft Law and on the state as actor Rehbinder (1995), P. 251 f. Whether imposed enforcement is a constituent part of the concept of a law is however, not generally accepted. At length on this controversy Raiser (2007), P. 175 ff. inter alia. 121 Noll (1981), P. 353 f. inter alia Similarly Schild (1986), P. 198 ff. 122 Therefore Schink (2000), P. 138 f., judges the symbolic standards of the Law on recycling waste too negatively. Overall the matching of the content of the legal standards with the attitudes of the general population is an important factor in the effectiveness of the law. The higher the congruence, the more the standard will be applied voluntarily – and vice-versa. On the Knowledge

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first need to be achieved.123 Meaningful examples of this are the UN resolutions.124 They are not binding law and cannot – at least not in practice – be enforced by any superior body. But their content stands for a consensus of content between the community of states, and for their expectations of behaviour by the members. The formally published expectations develop psychological and political pressure to act on those to whom the resolution is addressed.125 Even if these are not fulfilled, the resolution has met its symbolic goal: the addressee is put in the dock of world opinion, because they spurn standards and values which everyone has recognised.126 Even though the effects – we have learned from experience in international politics – are not always the same. The sensitivity of different states to the psychological pressure of the community of nations and world public opinion varies enormously.127 In a media society what matters are scandals. Scandalising by using the mass media is an important mechanism by which symbols achieve effects.128 Here, on the intersection of media and law we find one of the keys to understanding how Soft Law works. The infringement against the legally non-binding Soft Law becomes a public scandal thanks to reporting by the mass media. The political pressure of public opinion129 which this builds up can lead to the political implementation of standards and behavioural expectations, which themselves are non-binding.130 So that means: in a modern media society, a symbolic right can compel just as much as a binding law. Just the mechanism for implementing it is different. But symbolic law is not without its dangers. Too many symbolic laws have psychological effects: they destroy the awareness of justice and they shake confidence in the good functioning of the law.131 Whether it is possible to set constitutional

and Opinion about Law-research, which looked at these relationships, at length Raiser (2007), P. 258 ff. ff., 327 ff. 123 Schink (2000), P. 103 using the example of environmental law. 124 At length on UN-Resolutions from a linguistic and political studies viewpoint Wesel (2004), P. 173 ff. inter alia. Earlier from a linguistic perspective Thiel/Thome (1987), P. 27 ff. 125 Thiel/Thome (1987), P. 29. 126 Similarly Thiel/Thome (1987), P. 29, who see the resolutions therefore – certainly a bit too optimistically – as a contemporary “tool for imposing interests in a non-violent way against sovereign states”. 127 Wesel (2004), P. 176 starts to develop a rule, by which the effectiveness of resolutions can be forecast. Resolutions are more effective when the states being addressed are smaller and weaker and the more clear and unambiguous is the infringement of the policy and laws of the UN. 128 On creating scandals – although in a different context – Luhmann (1996), P. 61 f. Thoroughly on scandals in the modern media society Kepplinger (2001), P. 62 ff. 129 Falk/Strauss (2001), P. 212 talk graphically of a “mobilization of shame”. 130 Luhmann (1993), P. 581 brings it sharply to the point by saying “that laws are only validated and come into force when they are broken and this creates indignation”. A classic example for the implementation of Soft Law using public scandal was the “Brent Star Campaign” by Greenpeace. See on this Bonus/Bayer (2000), P. 291. At length on creating a scandal as a means of implementing law and its limits Fischer-Lescano (2002), P. 359 ff. 131 This risk is pointed out by Kindermann (1989), P. 270, very decisively.

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legal limits on symbolic legislation is very doubtful.132 This relates to the broad legislative area of intervention available to Parliaments, which is bounded first and foremost politically, not by the constitutional law. The Parliament therefore needs to make sensitive use of the effective instrument that is symbolic law. Careless overuse can cause damage.

4.3 Changing a Paradigm? – Images in Modern Law In the modern world images are becoming ever more important.133 Images are in the process of taking over from books as the main cultural medium. The law cannot exempt itself from this development.134 In recent times the signs are growing ever stronger that the importance of images in the law is gradually increasing.135 These visualification tendencies can be seen particularly clearly in trial practices. That is hardly surprising. Trials have always been fundamentally oral processes. Oral communication – unlike written – is also very strongly visual communication. As well as the verbal communication there is also inevitably the non-verbal communication.136 Acting,137 gestures138, postures, eye contact and the use of space are communication signals139 which are not oral, but visual, in the way they work.140 So it is no surprise that it was a court case where a documentary film was used as evidence for the first time: at the Nuremburg war crimes tribunal a documentary 132 Informative on this Siehr (2005), P. 554 ff. inter alia, who wants to measure symbolic laws constitutionally using the principle of proportionality and the principle of equality. In doing this she however misjudges the area of legislative intervention available to a democratically elected and legitimised Parliament. 133 Boehm (2001), P. 11 ff. notes a “return of images”. At length on this see above Chap. 3.1. 134 Boehme-Neßler (2003b), P. 530 ff. inter alia. 135 Brunschwig (2001), P. 151 inter alia; Röhl (2005), P. 248. 136 Psychology has proven that it is impossible to communicate orally without sending simultaneous non-verbal signals. See on this Zimbardo (1992), P. 336 inter alia. On the concept and appearance of non-verbal communication Frindte (2001), P. 97 f. inter alia At length on non-verbal communication from a socio-psychological angle Aronson et al. (2004), P. 103 ff. 137 On the communicative function of acting Eibl-Eibesfeldt/Sütterlin (1992), P. 371 ff. How important acting is in communication is shown by the emoticons in online communication. Because comments cannot be perceived in chats or in email communication, users work with symbols which are derived from acting and visualise emotional states. The “original emoticon” is the welland widely known Smiley. At length on this Roessler (2000), P. 511 ff. inter alia. 138 Quite often gestures are found in a ritualised form in social communication. On this using an example from ancient Rome Flaig (2004), P. 99 ff. 139 On these so-called kinetic symbols from the angle of theatrical semiotics Fischer-Lichte (2003), P. 47 ff. inter alia Fischer-Lichte (2003a), P. 131 ff., provides an example of a concrete analysis of a production, how kinetic symbols are used in theatre productions – and how they can be interpreted. 140 On this Zimbardo (1992), P. 335 f. inter alia. Eibl-Eibesfeldt (1997), P. 676, stresses that most – not all – acted expressions are universal. They are therefore understood across frontiers, even across cultural divides. That is an important factor, among others, which explains their importance for communication.

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film made by the American Army about the Nazi concentration camps was an important element in the prosecution.141 The forensic work in a trial always consists less of abstract legal arguments. In the foreground are the development and construction of a factual story, which can be used as the basis for a verdict. To take it to its extreme: forensic work is “storytelling”.142 In particular in US-American courtrooms modern technologies are used, which are actually intended to visualise the legal argumentation.143 The US-American legal system has for some time been more open to modern image technologies. Early on, witness statements which had been recorded on video were accepted in American courtrooms.144 For some time now there have existed specialised companies who produce so-called legal videos.145 These videos are – at least in major trials – used as part of the legal presentation. The USA is the front runner for the visualification of the court procedure. This is due in part to the American jury-system which speeds up the adoption of current cultural technologies and “state of the art” in the legal system. Lawyers still live in a professional environment which is primarily sceptical about images. But the members of the jury do not at all. Because the jury is made up of legal lay-people who are more directly and less reservedly linked into an image-dominated everyday life. Visualification trends, which are promoted by modern media technologies can also be seen in legal processes outside of court proceedings.146 In the USA wills which are recorded on video and have legal effect are an everyday part of legal practice.147 In Germany cautious experiments are being carried out with media preparation of Annual General Meetings of public companies.148 And in the area of administration there are the first, cautious signs of opening up to the culture of images. In graduated approval processes, where decisions are taken about the reliability of highly complex technical installations, administrative law with its continuing fixation on paper is in practice reaching the limits of its ability to deliver.149 The use of images could help to process the complex constellations of problems more effectively in practice. Inter-disciplinary working groups are therefore working on 141 Douglas (2000), P. 198 ff. Later the film was used in other trials as evidence: in the Eichmann trial in Jerusalem and 1987 in a Canadian case against the Neo-Nazi and Holocaust-denier Ernst Zündel. At length on this Douglas (2000), P. 216 f. 142 Sherwin (2000), P. 43, who talks graphically about legal storytelling. Perritt (1994), 1075, even defines the procedure in front of a jury as “in part a dramatic event.” 143 Katsh (1995), P. 159 inter alia; Röhl/Ulbrich (2000), P. 367. 144 On this Perritt (1994), P. 1072 ff. 145 Stachenfeld/Nicholson (1996), P. 903 ff. inter alia Informative on this Kantor (1999), P. 3 ff., who develops practical visualisation strategies for various processes. 146 On this Röhl/Ulbrich (2000), P. 365. 147 On this Collins/Skover (1992), P. 540 ff. 148 Thoroughly on the models already used commonly in practice and their problems Noack (1998), P. 2533 ff. 149 At length on this using the example of emission protection legal processes Henhapl/Roßnagel/ Schroeder (1999), P. 13 ff.

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a change of media in administrative law: they are developing multi-media system models so that approval processes in technical law can be processed electronically and not primarily based on paper.150 This is not least about simulating the possible effects of disruption in images.151 Images should be able to help the law to better understand complex combinations and causes and effects and then to manage them. This should have a positive effect on the legal quality of administrative decision making. Visualification can be seen in quite unspectacular forms in day-to-day legal work. Text processing programs have now become accepted and normal for legal professional communications. The formatting and presentation options for text which are technically feasible are increasingly being made use of.152 The aesthetic-visual quality of a text becomes an (additional) quality hallmark.153 From the flowing legal text the text image is now arising.154 Information technology graphics are beginning to become an accepted means of judicial communication – even if initially mainly in training materials.155 In addition to the graphical presentation of the pure text itself there are more and more tables, synopses, graphics, decision trees and flow diagrams to be found in legal professional publications. Spatial relationships are shown graphically. Figures are presented, or at least clarified, in aesthetically presented diagrams.156 Legal textbooks are also beginning to open up to visualification.157 But graphical presentations continue to be very rare in court judgements. But even here practice shows that the tide has begun to turn.158 Demographic changes will advance the visualification of the law. What is that forecast based on? Younger generations are growing up in a world which is shaped by images, if not dominated by them. They therefore develop communication skills and habits which are strongly visually biased. Their communication habits will be shaped more visually, less by either writing or text. With a changing generation of legal personnel the legal area will also gradually change its forms of communication. Visual communication will gain in importance.

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Seminal on this the considerations in Roßnagel/Schroeder (1999) pass. Very informative on this Brunner/Neuss/Schroeder (1999), P. 189 ff. 152 On the visual construction of texts from a typographic viewpoint Gorbach (2005), P. 296 ff. with striking examples. 153 Thus very decisively Röhl/Ulbrich (2000), P. 364. 154 Röhl (2005), P. 248. 155 Röhl (2005), P. 248. 156 Röhl/Ulbrich (2000), P. 365 point out that particularly construction law publications which deal with spatial relationships, are the pioneers in the use of graphical presentation in legal literature. 157 Thoroughly on the necessity of using “image books” in legal training, Brunschwig, 2001a, 363 ff. inter alia. 158 Referred to by Röhl/Ulbrich (2000), P. 365 inter alia. 151

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4.4 The Strange View – Images of Justice As rare as images are in the law: as a subject of images of all sorts justice has always been a firm favourite. Images of justice are anything but a rarity. But does that have any impact on justice itself? Given what we have learned about modern media sciences we have to answer this question with a yes. The representation of justice in various forms also changes justice itself.

4.4.1 (Legal) Image and (Legal) Reality Justice and the law have been themes of art159 and literature160 for millennia. Not least painting161 and visual arts162 have always dealt with the law and created an image of justice. And film history too is full of films which tackle the themes of the law and justice.163 And of course television: almost impossible to imagine any channel164 having a schedule without crime films or court dramas, lately also real-life TV-court shows.165 A special type of image of justice are the images and drawings of legal personalities. Since ancient times individual legal personalities have been represented using the media of painting and visual arts.166 Just as widespread as the depiction of individual personalities are the – often very critical167 – representa159

Seminal on this Fehr (1923), P. 11 ff. More recently at length Pleister (1988a), P. 8 ff. On the presentation of the law in popular art at length Carlen (1995), P. 356 ff. inter alia, who also uncovers the mutual influences of legal and religious images. 160 Heinrich von Kleist’s Michael Kohlhaas or Franz Kafka’s The Trial are famous examples. A modern example is analysed by Porsdam (1999), P. 39 ff.: Tom Wolfe’s The Bonfire of the Vanities from 1987. 161 Thoroughly on the law and justice as a theme in painting Fehr (1923), P. 20 ff. At length more recently Schild (1988), P. 130. A salient theme in this is the Last Judgement. On this Carlen (1995b), P. 249 ff. God as judge is a widespread theme in art. On this Schild (1988a), P. 44 ff. with many examples. 162 Thoroughly on law as a theme in visual arts Carlen (1995b), P. 238 ff. inter alia. On the law in visual arts in Switzerland Carlen (1995a), P. 262 ff. 163 In the front line here are courtroom films, where law is shown directly in practice. Seminally on this Rafter (2000), P. 93 ff., who uncovers the characteristics and developments in court room dramas. An image of the law from other perspectives is also shown by the widespread police and prison films. At length on these genres Rafter (2000), P. 71 ff.; 117 ff. An overview of American court films comes from Bergmann/Asimov (2006). 164 On the image of the law portrayed in American TV-series, Friedman (1989), P. 1598 ff. 165 At length on the genesis of court-shows since 1981 in the US Porsdam (1999), P. 92 ff. 166 Carlen (1995b), P. 257 f. inter alia. An image of lawyers in the wider sense can also be found in the literature, both fiction and expert. 167 Particularly well-known are the biting caricatures by Honoré de Daumier. On their presentation and analysis by Gephart (2006), P. 260 ff. inter alia Even earlier Gustav Radbruch (1954), P. 115 f., studied Daumier and respected him as a clear-sighted cultural critic and moral philosopher. At length on this also Radbruch (1947), P. 19 ff. With a discussion of some individual caricatures.

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tions of legal professions using cartoons of people, but often also using stylised animals.168 What has this got to do with the law? On first sight this area seems to be irrelevant to the legal system. Like all important areas of everyday life the law is a subject-matter for art. That seems to be a trivial statement. But what is decisive is that the relationship between art and the law is not one-sided. Because the subjectmatter of paintings is not just portrayed: portrayal influences and art also changes its subject. It is not just images in the law which change the law. Also the images which society makes of the law169, influence the law. This fact which surprises on first sight arises from the ways in which modern media societies function.170 The media are an important part of the cultural environment and therefore play a part in shaping people.171 The effects of the media on people have not been fully researched. A whole series of effects can already be detected, however.172 In particular the technical media have far-reaching effects: they even structure or construct contemporary attitudes173, they focus attention, they set priorities, and organise the world.174 In brief: they supply models and patterns for understanding the world. The electronic media do not just structure and shape the way information is organised in a society.175 They also influence – going much further – the social structures and the personal life of members of that society.176 A “TV reality” comes into existence.177 What does that mean? In a media society, the images that the media show of an object have an effect on the object itself. The media image shapes public opinion of the object. The object is confronted with these opinions. In this confrontation of opinion and reality, the reality itself also changes, not just the image of reality. Other artists were just as critical and ironic. On this Carlen (1995b), P. 258 with examples. On Gustav Klimt as a painter of legal images Gephart (2006), P. 271 ff. inter alia. At length on the criticism of the current law in art of the modern era Latz (1988), P. 222 ff. 168 Carlen (1995b), P. 258 f. inter alia. At length on the presentation of legal themes using animals and animal faces Pleister (1988), P. 172 ff. with many examples. 169 The handy distinction between images in the law and images of the law was coined by Röhl (2005), P. 247 f. 170 Thoroughly on the effect of modern media and the research into this effect Merten (1994), P. 291 ff. inter alia. 171 Thus very pointedly Hickethier (2003), P. 230. 172 See on this the list from Hickethier (2003), P. 230 ff. inter alia. 173 Altheide/Snow (2001), P. 31 f. At length on this Neverla (1990), P. 3 ff., who describes television as a “social timer”. Seminal on this and earlier Altheide (1985), P. 136 ff. 174 Hickethier (2003), P. 231. 175 On the upheavals in the information structures of American business and society caused by the electronic media Altheide (1985), P. 97 ff. 176 On this seminally Altheide (1985), P. 131 ff. inter alia. Winterhoff-Spurk (2005), P. 141 ff. inter alia even define television as the “secret educator” which forms our character. 177 Elsner u. a. (1994), P. 184 f. inter alia. Thoroughly on how mass media shape the concept of reality – and therefore reality itself, Fiske (1987), pass., who uncovers and investigates the characteristics of a television culture and how they influence society.

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Applying this specifically to the law, what it means is: the legal system is confronted by the opinions which exist in the public domain about the law.178 Not least, its performance is measured against the image that the public has of a well-functioning, fair, legal system. And this image is increasingly shaped by television.179 Like it or not: through this confrontation the legal system will develop and change.180 To demonstrate this using a small, mundane example from everyday court life: because lawyers need to meet the expectations – coloured by TV – of their clients, they are increasingly beginning to “put on a show” in court.181

4.4.2 Judge Joseph Wapner Says Hello The image of the law – although not in Germany – is shaped by live reporting from real court cases182 and by the documentary-like fictitious court television or justice shows183. In addition a non-negligible role is played by court and crime films on television and in the cinema.184 Since 1981 live reporting from the courtroom has basically been permitted in the USA.185 In the decision of principle in Chandler vs. Florida186 the US Supreme Court was of the opinion: no negative effects on a case, nor negative psychological effects on those involved in a case could be ascribed to TV reporting of court 178 Similarly Sherwin (2000), P. 244 ff. inter alia who warns about the resultant risk of populist laws. At length on the effects which public images of the law have on the law itself, Lenz (2003), P. 169 ff. 179 At length on this Asimow/Mader (2004), P. 15, 54 ff. 180 Lenz (2003), P. 169. Asimow/Mader (2004), P. 53 ff. inter alia document this theory and its effects in detail. On the influence of public opinion in the form of the media on the law already Luhmann (1969), P. 126 ff. 181 Röhl (2005), P. 252. Striking examples from the area of criminal justice are described by Hamm (1997), P. 27 ff., 64 ff., 83 ff. 182 Live reporting from courtrooms is mainly widespread in the US. At length on Court-TV in the USA Thaler (1994), P. 55 ff. In Germany the possibilities of being reported live from a court proceedings are very restricted thanks to section 169 P. 2 GVG (Court Judicature Act) and Sect 55 VwGO (Administrative Court Procedures Code). At length on this Kuß (1999), 225 ff. 183 On this Boehme-Neßler (2003b), P. 532. 184 Seminal and at length on this Kuzina (2000); Machura/Ulbrich (2002). With examples and in depth on this at an earlier date Friedman (1989), P. 1579 ff. Dedicate to the influence of American criminal films on public opinion of justice Lenz (2003), P. 169 ff. 185 There is only one exception for the case where specific evidence of negative influence on proceedings exists. At length on this Goldfarb (1998), P. 61 ff. And there is a further exception for the processes in the Supreme Court itself. No TV cameras are permitted there. Critical on this Brodocz (2007), P. 193 ff. 186 Chandler vs. Florida, 449 U.S. 560 (1981). In the case of Estes vs. Texas, 381 U.S. 532 (1965) the Supreme Court in 1965 had expressly decided and argued against it. At length and very critical on this decision Sherwin (2000), P. 152 ff. inter alia and – tending to agree - Goldfarb (1998), P. 56 ff.


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proceedings.187 From a socio-psychological point of view there is in fact much to be said for this point of view, which may contradict the everyday experience of the individual.188 In any case in the USA, since then, live reporting from courtroom proceedings has become a fixture in the TV schedules. The – provisional – outcome of this development is so-called Court-TV.189 Because real court cases cannot be transmitted it falls back on scripted, fictional cases. Both on public and privately-owned TV there is a successful – as far as viewing figures are concerned – trend towards court-shows: where using real legal participants fictional cases are presented by actors.190 This means that the public are increasingly seeing what the abstract concept of “justice” looks like. This is a visualification trend whose influence on the law it is still barely possible to estimate.

4.4.3 P ublic Opinion as Judge? The Law Under Pressure from Public Opinion Because the image that is created in public of an object, in this age of the media, also affects the object itself, the impact of both genuine and fictional images from the courtroom on future real-life cases should not be under-estimated.191 What effect do TV images of justice have? Images from a court can inform people about justice, they can deter criminals and can increase the faith of citizens in justice.192 The American pioneer of TV court-shows, the American judge Joseph A. Wapner, was totally convinced in the 1980’s that this was serving justice. His popularity with viewers, and the high esteem he was held in publicly, could be an indication that with his programme The People’s Court he did in fact have a positive influence on the public image of the legal system.193 187

The German constitutional court sees this quite differently: BVerfGE 103, 44, 68. But cannot provide empirical evidence for its opinion. Gephart (2006), P. 278, maintains – also without any empirical basis – “that people just change when in front of a camera or tape recorder which is running”. 188 Gehring (1998), P. 8 ff., quotes socio-psychological studies which refute the negative impact of TV cameras in court rooms. Goldfarb (1998), P. 96 ff., argues similarly on the basis of empirical studies – although fewer of them. From a legal point of view Sherwin (2000), P. 154 ff., contradicts energetically, but without going into the empirical materials. Gerhardt (1998), P. 528, is also sceptical but only on the basis of his personal experience. 189 At length on this Goldfarb (1998), P. 124 ff. inter alia, and Thaler (1994), P. 55 ff. 190 At length on the genre of the court-show Brauer (2007), P. 34 ff. 191 That media do and how they shape public opinion, is shown by Lenz (2003), P. 169 ff., with the Example of American legal policy, which – not only, but also – is influenced by the image of justice at the cinema and on American television. Thoroughly on the impact of television Gerbner (2000), P. 111 ff., McCombs (2000), P. 123 ff. and Rubin (2000), P. 137 ff. 192 Similarly Barber (1987), P. 95 ff., on the basis of empirically studies. More reticently the report of the New York State Committee about reporting from courtrooms in 1997: New York State Committee (1997), P. 69 ff. 193 At length on this Porsdam (1999), P. 105 f.

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Cameras in the courtroom do in fact represent substantial risks for the legal system.194 The problem of live transmissions from a court process is less that the behaviour of the participants will be influenced in the short-term by the cameras and so prevent proper process of law.195 Socio-psychological studies of the so-called audience effect demonstrate that people do not modify their behaviour because observers are present.196 Quite the opposite: in front of observers people generally show the same behaviour that they previously exhibited successfully.197 So cameras in the courtroom would – if you go by this socio-psychological finding – not substantially affect the veracity of those involved in the trial.198 But there is a danger linked to the presence of television cameras in the courtroom, albeit a different one. The risk is in the subtle fictionalisation of the reality of justice thanks to television. Normally television does not document court proceedings true to life in every detail.199 The images are instead re-worked so that they – dramatically and economically – follow the logic of television. No case is ever transmitted unedited and uncut.200 That is the primary problem with television images from the courtroom. Because of this processing they can give the television audience a distorted image of the legal reality, that creates misconceptions and unrealistic expectations.201 In the medium-term these expectations can have an impact on the legal system generally and on those taking part in a trial. That public exposure has an impact on the creation of legal standards and the development of the legal system is perfectly normal in a democracy. Parliaments should – it is an expression of the rule of the people – be influenced by citizens, by public opinion and the media. An important achievement of democracy and 194

The risks are analysed in detail by Barber (1987), P. 98 on an empirical basis. Similarly cautioning from the point of view of a judge Garapon (1996), P. 231 ff. 195 But this is the focus from which the problem is discussed in the German literature. See on this only Kuß (1999), pass. At length on the concerns and possible risks which are involved in live reporting Barber (1987), P. 36 ff. inter alia, although she, ibid, P. 86 f., does not see the risks being realised in practice. Same thing from an empirical point of view the New York State Committee (1997), P. 75 ff. 196 Seminal on this Zajonc (1965), P. 269 ff. Proved at length by the study of the New York State Committee (1997), P. 74 ff. This is not recognised by Gerhardt (1998), P. 528, who wrongly maintains that there are no studies about how cameras in the courtroom affect the behaviour of those involved. 197 Gehring (1998), P. 9 inter alia. 198 Thus in the results of the New York State Committee (1997), P. 74 ff. Although there can be differences between the different parties involved in the case. Judge and lawyers tend not to be influenced, for witnesses and defendant it might possibly be different. That seems to come out of empirical studies on which Barber (1987), P. 72 ff. reports at length. 199 One exception is that the court channels of US-American TV actually broadcast cases uncut and live. 200 At length on the selection and filtering of reality by TV see below Chap. 7.1.2. 201 Empirical research by Thym (2003), P. 121 f. shows using the example of court shows that television images have an effect on the audience’s conception of a case. Thoroughly on how television affects the points of view of its audience and frequently is dominant in shaping them, Gerbner et al (2002), P. 203 ff. inter alia and empirical material. At length on this also Chap. 7.1.2.


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modern constitutional states is also the fundamentally public nature of court proceedings.202 Although what is problematic is the influence of public opinion and the media on justice. Does publicity in the media actually lead to greater pressure on justice? Public media pressure having an effect can be seen particularly in the area of criminal justice,203 because there is where the cases occur which are of real interest to the mass media.204 They deal with human dramas, fascinating stories, difficult relationships and “people just like you and me”. This matches the expectations and interests of TV audiences. Public prosecutors are susceptible to pressure from the media.205 This is linked to their institutional structure: public prosecutors report in Germany to the regional justice minister, who in turn is politically responsible to Parliament. The Parliament is – according to the theory of democracy – accountable (politically) to the public. That is not just a democratic necessity, but is also an “own goal” for public political pressure. Important trials are often also under public pressure, and criminal trial judges have to react – however they do.206 Already just having journalists sitting in the courtroom changes the “atmosphere”; people act differently.207 Empirical research on the question of how public pressure acts on criminal trial judges is so far thin on the ground.208 But from the indications so far, at least one workable hypothesis can be formulated: judges feel the pressure and the public expectations personally and are influenced by them.209 Naturally the influence is not directly felt in the judgement itself. The interactions here – as typical for the psychology of communication – are indirect.210

202 Cameras in the courtroom can indeed help public scrutiny and criticism of justice. On this New York Committee (1997), P. 31 ff., 69 ff. and Prütting (1999), P. 686 ff. 203 Kepplinger/Zerback (2009), P. 216 ff. Critical on this Wagner (1987), P. 97 ff., who even notes an “loss of autonomy of criminal justice in a media-dominated society”. 204 On this Garapon (1996), P. 233 ff. using the example of crimes where children are the victims. 205 Spectacular examples are given by Hamm (1997), P. 25 ff. At length on media pressure on public prosecution Wagner (1987), P. 60 ff., P. 85 f. Wagner (1987), P. 33 ff., also described examples in practice where prosecutors attempt to manipulate the press for their own ends by leaking information. 206 Informative case-studies on this can be found in Hamm (1997), P. 64 ff., and Wagner (1987), P. 104 ff. More recent material, that Kepplinger/Zerback (2009) collected confirm this. 207 Gerhardt (1990), P. 26, 29 f. 208 Empirical research among other things on this question was presented by the New York State Committee (1997), P. 79 f.. A more recent demoscopic survey of judges on this topic is carried out by Gerhardt et al (2007), P. 38, and Kepplinger/Zerback (2009), P. 216 ff. 209 This conclusion can be supported by the results of the studies by Gerhardt et al (2007), P. 38, and Kepplinger/Zerback (2009), P. 216 ff. Wagner (1987), P. 87 ff., had earlier collected indications from the practice of criminal law that supported this theory. Similarly also New York State Committee (1997), P. 79 f. 210 An example of this is given by Hamm (1997), P. 67.

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4.4.4 L ack of Confidence? When Justice Does Not Meet Expectations Television has huge potential for education – including and particularly about the law. TV images reach layers of the population who normally have little interest in, let alone understanding of legal challenges and solutions. If television images – such as courtroom films, live court-TV or court-shows – create interest in and understanding of the legal system in wide sections of the population, that is definitely a good thing for a constitutional state. Because it helps to promote acceptance of the state’s legal basis – and of the law itself fundamentally among citizens. Television can also educate about the legal system in the best possible sense.211 To put it clearly: infotainment and information are not mutually exclusive in principle.212 That is of course still true when the law is the subject of the infotainment. But does television make good use of its ability to educate? Empirical research about court shows and similar programmes tend to suggest the opposite. Court shows are fictional formats which are created according to the rules of the (TV) art.213 Television frequently distorts and warps – in the interests of entertainment – the image of the legal system. That is of course covered by the right to artistic freedom of interpretation which television claims and makes us of. It may be an aesthetic problem. But what has it got to do with real law in real life? Television is an artistic medium. But – unlike, say, the theatre – it is not just that. It also lays claim to report about reality and to depict it as documentaries. And it also suggests at the same time that this is what it is doing. This increasingly muddies the boundaries between documentation and reporting on the one hand, and artistic creation on the other. The phenomenon of the Reality Show or Docu-fiction formats214 are merely the clearest example of this. In many cases the boundaries are less clear but do still exist.215 That then culminates in the absurd fact that – purely fictional, but well-known – TV doctors receive thousands of letters asking for medical advice.216 Dr. House becomes a genuine doctor in the house.

211

Informative on this are initial empirical results which Machura (2007), P. 89 f. presents. According to these court films and court shows tended to increase trust in the state courts among those who watched them. But Gerbner (2002), P. 462 is sceptical. 212 Similarly also the German constitutional court NJW 2000, 1021, 1024 – Caroline I: “informing opinion and entertainment are not contradictory”. 213 On the production and shaping of current court-shows on German TV in detail Brauer (2007), P. 45 ff. inter alia. Thoroughly on television’s processing of reality Saxer (2007), P. 73 ff. inter alia, who talks about personalisation, eventising, equilibrating and euphorising. 214 Details on the documentary-fictional cross-breeds on television from Hickethier (2001), P. 204 ff. 215 Similarly Spiesel/Sherwin/Feigenson (2005), P. 235 with an example from American television. 216 These and similar examples are given by Gerbner/Gross (2002), P. 232 f.


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This can also be seen with court shows. Although they deal with fictional cases, they use an authentication strategy to disguise217 this fiction. It may be real lawyers who appear in these shows. The basis for the case and for the judicial decision is the real, applicable law. This problematic strategy aims to increase credibility.218 Not least because of this the – apparently realistic but actually fictional – representation of the law on television becomes a problem for the real law. Because television creates false impressions on the audience of what the real law is and what it can do in real life. People then base their attitude towards the law and justice on this falsely understood and distorted television reality.219 Court-shows do really shape the image that viewers have of the reality of real life in a court.220 Anyone who watches a lot of television will tend towards views which match what they have watched.221 Habitual watchers tend to take for reality what they are shown on television.222 Empirical research confirms that it is mainly – unrealistic – attitudes towards the work of the police and of justice which are affected by this.223 A hardly noticeable but shocking example for the subtle effects of court films and court shows: transmitters tend to present the defendant via camera angles and editing as relatively unsympathetic and guilty.224 That contradicts in a subtle, visual way the principle of assumption of innocence which is supposed to dominate the hearing in modern constitutional states. Another example: influenced by the production and the stylistic elements of the court show, TV viewers often believe that court processes are aggressive, highly emotional and flexible.225 That can become a problem for the state. Because this might increase the reluctance of citizens to seek justice through the courts. Here there is a problem which is still seriously under-estimated: the reality of law and the widespread but false impressions of the law which are formed by television and repeatedly reinforced are a long way apart.226 This is a recipe for people being 217

Brauer (2007), P. 66. Similarly Spiesel/Sherwin/Feigenson (2005), P. 237, who show other strategies for credibility. 219 On this Podlas (2001), P. 21 f. 220 Similarly Spiesel/Sherwin/Feigenson (2005), P. 236. Informative on this is the empirical study by Podlas (2001), P. 11 ff., which documents the significant effects of the court-shows. A similar conclusion is reached by Machura (2007), P. 93 f., also based on an empirical study. At length and earlier, on how television shapes ideas of the law and the system of justice Thaler (1994), P. 6 ff. 221 At length on this Cultivation theory Gerbner (2000), P. 111 ff. inter alia. 222 Gerbner et al. (2002), P. 203. At length on the formation of opinions by TV see below Chap. 7.1.2. 223 Gehring (1998), P. 9 inter alia Striking examples given by Gerbner/Gross (2002), P. 232 and Röhl (2005), P. 252 inter alia. At length and more sophisticated on this Thym (2003), P. 65 ff. What matches this is that people who watch a lot of TV think society is much more violent than it actually is. On this Gerbner (2000), P. 111 f. inter alia and Gerbner et al (2002), P. 203 talk in this context about “mean world syndrome”. 224 Thaler (1994), P. 10. 225 Machura (2007), P. 98 f. On the basis of an empirical study. 226 Informative on this Thym (2003), P. 15 ff. who shows in detail, just how far from reality the current court shows on German TV are. 218

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disappointed. To overstate it: if cases on TV can be decided clearly and unambiguously in half an hour, why do real courts take months to make decisions, which even then are barely comprehensible and complicated? Experience shows us: that is not then a problem for television, but a problem for the law. This disappointment then leads to disenchantment of citizens with the real law and long-term to an erosion of the acceptance and legitimacy of the law. The viewers – and citizens – over time lose their trust in the law and those who administer it. TV images of the law therefore can have an educational effect and increase acceptance of the law and justice among the general population. But they can instead actually reduce acceptance. What is the effect of the many justice shows which are currently shown on television? Are they educating people about the law and anchoring trust in the legal system? Or are they raising impossible expectations of the law which can only lead to a loss of confidence? Recent empirical studies on the effect of court shows present a contradictory image.227 This question cannot really be answered as yet. Further empirical studies are needed first.

4.5 A bility to Convince – Opportunities for Visual Legal Communication The focus of legal communication is the ability to convince: legal communication aims to convince. The ability of laws, legal figures, court judgements and practical pleadings to convince is based on three aspects: on the attention paid by the person being addressed, on the content itself, and on the form in which this content is presented.228 The quality of the legal arguments exists independently of whether they are presented in words or in images. The content of a legal pleading is not changed by images. The two other factors in the ability to convince – attention and form – are, however, substantially changed by the use of images.

4.5.1 Images as Eye-Catchers: More Attention on the Argument Unlike words, images automatically catch attention.229 Legal communication which works with images therefore finds it easier to catch the attention of the person(s) being addressed. That in turn makes the work of convincing them easier. Because without attention, listeners do not hear arguments, and they have little or no 227 Machura (2006), P. 174 ff. rather comes to the conclusion that court shows do not undermine the confidence of the viewer in justice. Thyn (2003), P. 121 ff. comes to a partly differing conclusion. But both studies are of limited significance. They are not based on a representative survey, but on samples where only students were questioned. 228 Similarly from a socio-psychological viewpoint Aronson u. a. (2004), P. 238. 229 Keil (2005), P. 138. On this also see above Chap. 3.5.7. and 3.6.

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effect.230 In the American legal system images of multifarious kinds have long been used as a normal instrument of legal communication.231 Because the point is to try and convince a jury. In Germany lay-people play a much smaller role in the process. That may be one of the reasons why images have so far been much more rare in German courts: lawyers, who are traditionally sceptical towards images and trained in and focused on verbal communication, are talking to each other. Images as eyecatchers have so far obviously not been so necessary. But demographic developments will change this. The younger generations are growing up in a world which is much more strongly shaped by images. This is bound to have an impact on their relationship with images and their visual communication skills. They are far more used than earlier generations to communicate visually. To overstate it: Generation X is growing up in a world full of images and communicates with images, not with text. This has consequences for attention: legal communication will hardly catch the attention of the younger generations without images.232 Are we at risk of alienation and loss of language? The change of generation of legal staff will reduce the problem. Younger people applying the law, who grew up with far stronger visual socialisation, will also communicate more strongly visually. This forecast is not extreme: legal communication will become considerably more visual just thanks to the changing generations.

4.5.2 Form Follows Function? Images in Judicial Forms of Language It is not just a question of content. That the form also plays an important role is an age-old truism. It is not only the status that rhetoric enjoys in the courtroom that shows that even the law is not deaf to this fact.233 The speech forms of the law would be significantly extended if they used images. The law’s ability to convince could – no: would – increase.234 An archaic example for the argumentative possibilities offered by visual communication is non-verbal communication. Non-verbal communication can underline, stress, clarify the information which the words are

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Aronson et al (2004), P. 238 ff. inter alia. Informative on this Ciccone (1986), P. 17 ff., who discusses which visual means could be – and should be - used at different stages in a case. Thoroughly on the problem, that and how a jury can be influenced by those involved in a case, Adler (1994), P. 51 ff. 232 Informative on this Reske (1995), P. 14, who discusses this problem using the example of younger jury members who are not reached by pleading without images. 233 At length on this Sherwin (2000), P. 41 ff., who looks closely at the rhetoric of legal story-telling in the courtroom. 234 Thus very emphatically Katsh (1995), P. 159 ff. inter alia. Kroeber-Riel (1996), P. 81 ff. inter alia provides an overview of the effects of images on people’s behaviour, also on the ability of images to convince. 231

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imparting and so increase their ability to convince.235 In particular gestures and acting are instruments which are also used in legal communication.236 Although in the modern, Western, text and writing-dominated culture they have lost a lot of their importance.237 That is very different in other cultures.238 The world which the law has to deal with is highly complex. Legal communication frequently has to deal with complex, difficult and sophisticated relationships and problems. Visualification can help with this enormously. Complexity can be reduced by pictorial presentation, or at least become more comprehensible.239 The specific neuro-physiological characteristics of visual communication can therefore noticeably extend the ability of the law to master complex and sophisticated problems.240 Complicated legal situations, with perhaps many parties involved, can be represented much more easily visually than solely with words. Problems with family law, company and corporation law could certainly be presented much more clearly and better resolved using visual communication. Sophisticated organisational structures are almost incomprehensible without a visual representation. The more complicated management structures are, the more visual communication becomes necessary to be able to present and understand them. Precisely the more strongly integrated management of modern industrial companies can be better analysed using visual communication. Another obvious example: the law often offers clever alternatives with differing but far-reaching consequences. Settlements like this could be presented as interactive diagrams. Then those applying the law called easily walk through the different alternatives.241 Images and graphics can also be extremely helpful with spatial thought. The human ability to visualise spatially is limited. Legal argument which depends on spatial elements and relationships therefore fairly often use images. Examples of this are construction law cases and procedures relating to traffic accidents. And in the American criminal system the use of maps and sketches of localities has been

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On non-verbal communication from a communication-science viewpoint Merten (1985), P. 27. Similarly the political sciences point of view: Meyer et al (2000), P. 84 ff. 236 At length on the communicative importance of mimicry from an anthropological viewpoint EiblEibesfeldt (1997), P. 619 ff. inter alia, and from the neuro-biological aspect Roth (2003), P. 418 f. inter alia. The communicative importance of acting is investigated by Boehm (2007), P. 21 ff. On the importance and necessity of ritual acts in Ancient Rome at length Flaig (2004), P. 99 ff. inter alia 237 Hibbitts (1992), P. 911. 238 On the importance of acting, mime and dance in performing cultures Hibbitts (1992), P. 906 ff. 239 Tufte (1990), P. 31: “Courtroom graphics can overcome the linear, non-reversible, one-dimensional sequencing of talk talk talk“. Very informative on this the different examples which Kantor (1999), P. 47 ff. gives. 240 Thus correctly Johnson (2006), P. 247 f. A very striking example from court practice is shown by Tufte (1990), P. 31: a matrix, in which defenders have written the previous offences of various witnesses against their client. The visual impact is strong and permanently destroys the credibility of the witnesses. Various visual instrument are compared by Ciccone (1986), P. 17 ff. 241 Johnson (2006), P. 248.


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normal for a long time.242 And visual 3-D reconstructions of the sequence of events carry great persuasive powers, but are as yet hardly ever seen in German courtrooms.243 Not just complexity but also movement can be much better mastered using visual communication. Presentation as images is therefore particularly useful if legal means are used to control or accompany dynamic processes. How do images help here? A salient feature of digital visualisations is their procedural nature. In the digital knowledge society data is continuously and permanently being collected, processed and distributed.244 For the law this has consequences: it becomes less important to “process” individual cases and clearly defined projects. Instead, the law more often has to permanently monitor, control and guide dynamic, continuous processes. The law will hardly be in a state to take on this task if it does not adopt the tools of visual communication. An example of this is controlling long-term contracts with a continuous exchange of deliveries.245 Another case is administrative procedures. Particularly complex, multi-level and therefore dynamic administrative procedures are much more efficiently modelled with visual support.246

4.5.3 Fast Law Is Good Law: Speeding up Legal Communication The wheels of justice grind exceeding slow – that is well-known. Nevertheless: whether a legal system is good and functions effectively also depends on its working speed. A legal system can only fulfil its tasks if it generates decisions within a suitable time-frame. Decisions that come too late from the court, for example, reduce the ability to resolve conflicts and the ability of the legal system to provide guidance. An everyday example: because legal processes take a long time, international companies are increasingly resorting to settling differences using private arbitration courts.247 National law and courts are thereby losing relevance and the ability to steer events and developments. Images are assimilated and understood more rapidly than text.248 The more complex the subject matter of the communication is, the more obvious the speed advantage of images. A visualisation – at least partial – can make use of the special characteristic of the biology of perception and speed up processing of legal information. Although the speeding up of legal communication is ambivalent. The fact 242

At length on the use of maps in the McDermott case (1986), P. 56 ff. Informative Kantor (1999), P. 105 ff. 244 Katsh (1995), P. 161, correctly points this out. 245 On this Katsh (1995), P. 161 f. 246 Roßnagel/Schroeder (1999), P. 13 ff., who also carried out a practical simulation study they present. 247 Critical about this development Girsberger (2000), P. 236 f. and Scheuermann (1999), P. 6 ff. 248 Schierl (2001), P. 197 f. 243

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that justice is slower than other parts of society is not just a fault which is due to insufficient resources and poor organisation. It is also an advantage: justice should take all parties into account, explore all aspects completely and weigh matters up rationally. This kind of communication requires – among other things – time above all. That leads forcibly to a conclusion. Speeding up legal communication using images and graphics may be desirable from a legal-political point of view. But there are limits beyond which legal communication should not be speeded up. Otherwise justice loses one of its characteristic and valuable strengths.

4.5.4 No Point in Contradicting. The Imperative of Images Images per se are highly complex. This has one consequence – among others – which is particularly delicate for their use in the judicial arena: you cannot really contradict them effectively. This is for two reasons.249 Contradicting an image is only really effective by using images, much less so by using words. It is not really possible to instantly and rapidly create images to respond to a visual argument. Verbal contradiction can in contrast, be both spontaneous and rapid. Visual counter-images can only be built up relatively slowly. That is a reason why visually presented arguments can only be refuted with difficulty. Rapid contradiction of images also fails – this is the second reason – due to the complexity of images. Images are so complex, that they offer any potential contradiction an infinite number of starting points. In practice that means that the contradiction probably dissipates without having any effect, because it can only ever deal with a small, limited aspect of the image at a time. To state it clearly: images are extremely imperative.250 This is – of course – not a new insight. Imperative images have been used for centuries to control human behaviour.251 Not least, modern commercial advertising is based on the imperative power of images. Is this important for judicial communication? The imperative of images is of great interest for visual legal communication. In forensics for example, it is not always necessarily the best argument that matters. What decides things is the argument that cannot be refuted – and therefore convinces. That argues strongly in favour of communicating judicial arguments much more visually, if it means that they would win the day. Although it is basically typical of legal proceedings that they take a long time and include many consultation and discussion phases.252 That in turn can relativise the visual imperative. Because

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Streeck (2006), P. 69. Schmidt (2000), P. 236: “…imperative images…do not tell things how they are, but how they ought to be…“. 251 Streeck (2006), P. 70. 252 The legal system is deliberately a “slower”, less dynamic part of society. That has disadvantages, but also major advantages. At length on the timing functions of the law Boehme-Neßler (2008), P. 482 ff. 250


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under lengthy and detailed scrutiny and analysis the persuasive power of images can be much reduced.

4.5.5 Can You Believe Images? Images as Evidence Visual communication has a paradoxical status in the public mind. On the one hand images suggest credibility and authenticity. What you can see with your own eyes you generally believe to be true.253 But on the other hand awareness of the ease of fraud and the potential for manipulation of images is increasing.254 The problem of credibility is accentuated by digital technology which allows new and extensive, scarcely detectable options for manipulating images.255 Therefore there is the risk that visual communication falls under a general, blanket suspicion of manipulation. Then any visualification of the law would not only be ineffective, but downright dangerous. The law to a large extent survives thanks to being credible and being taken seriously. The law must – and this will be an important task for the future256 – become more visual, but at the same time, must keep its seriousness and credibility, which so far is linked to use of words and text. It has to – in other words – find the ideal balance between words and images. This is not just a challenge for the law. Nowadays all areas of society are facing this task. Other sectors are, however, further down this road.257 The problem of credibility does not just affect the law as a whole. It also shows up in specific areas of day-to-day judicial work. An important example is the presentation of evidence in court.258 Images are much-loved as forensic evidence. Courts like to bring in evidence in the form of photographs and video films and in so doing rely on the reality effect of images.259 The judge’s assessment of evidence in practice has to take into account that it is very easy to manipulate images digitally and very difficult to detect. What does this imply for everyday judicial processes? More expert opinions will be needed on the question of how authentic an image is? The judge must resist the temptation just to accept images as evidence. The expert on images – an art historian, a visual computing expert or similar – first has to check 253

Critically and thoroughly on this Kepplinger (1987), P. 302 inter alia; Bentele (1988), P. 407 ff. inter alia. Bolz (2001), P. 73 refers to the technical background for this feeling. 254 Bolz (2001), P. 73. On the neuro-physiological and communication psychological background to the potential for manipulation latent in images, Kroeber-Riel (1996), P. 93 ff. inter alia. 255 See on this only Mitchell (1994), P. 69 inter alia. At length on this see above Chap. 3.7. 256 Thus, correctly Katsh (1995), P. 157. 257 An example of this is graphical posters both from advertising and art. On this Paul (2005), P. 73 ff. 258 Generally courts still struggle with the admission of evidence when dealing with digitally generated objects. An important example in practice is the admissibility of emails. Thoroughly on this Roßnagel/Pfitzmann (2003), P. 1209 ff. 259 Baer (2004), P. 239 inter alia. On the particular importance of videos in US-American court cases Collins/Skover (1992), P. 510 f.

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the authenticity of a visual piece of evidence.260 Only after that, in a second step, can the judge actually determine whether to admit the evidence or not.

4.6 Farewell Abstraction? Continental European law at least, is very abstract. This has both advantages and disadvantages. Images have a special characteristic: they are basically physical.261 Visualified legal communication will therefore make the abstract, writing-dominated law more concrete. What does that mean for modern law?

4.6.1 Abstraction in the Law – Importance and Limits What is the point of abstraction? To put it briefly: abstraction is a means of rationalisation. The whole of cultural history can be seen from this angle as a process of increasing rationalisation through abstraction. And of course this also applies to the history of law, which has been a process of abstraction and rationalisation.262 Early forms of law were still irrational, magically formal rules, which were “revealed” by charismatic prophets of the law.263 The intertwining of law and religion is – not surprisingly – very close in early societies.264 Many levels of development later265 and modern law is an outcome-oriented, rational system with strict logic and a systematic approach, which means that the rule of law is predictable to a large extent.266 Particularly striking examples of this are the continental European codices of the nineteenth century.267

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Co-operation between the law and aesthetics is nothing new. In the area of artistic freedom and satire, for example, courts repeatedly have to get involved in standards and evaluations of aesthetics. On the relationship of law and aesthetics very informatively Frankenberg (2004), P. 7 ff. But it is different again, when an image is not the subject of a case, but is a piece of evidence. 261 At length on this see above Chap. 3.5.2. 262 This theory of the increasing rationality of the law was developed by Max Weber (1972), P. 456 ff., using copious legal-anthropological and comparative law materials. Rehbinder (2009), P. 92 inter alia, talks about a “Trend towards making the law more learned”. On the rationality of the law also Luhmann (1993), P. 275, P. 562 ff. 263 Max Weber (1972), P. 459 f. 264 Wesel (1985), P. 342 for segmented societies. 265 Max Weber (1972), P. 456 ff. tries to establish a typology of different levels in the development of rational law. Whether the development of the law actually takes place in such steps is very contentious. On this Wesel (1985), P. 44 ff. 266 Luhmann (1993), P. 563 f. 267 On the importance of codification for the rationality of law Max Weber (1972), P. 488.

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The means that enabled this development was the increasing abstraction of law. Because law without abstract rules tends towards the irrational.268 Why? Concrete law has no inherent organisation, no dogma and no sophisticated legal institutions. Standards can therefore hardly be rationally deduced and justified. But they do need to be explained and legitimised anyway. Otherwise they will not be followed. Without falling back on magical, irrational topoi this is not normally possible. So abstraction is an important cultural and civilising activity. At the same time, abstraction in the law is not without its problems. Abstract law is always at risk of developing its own strong dynamic269 and losing touch with reality. The jurisprudence of concepts shows in places some evidence of the absurd extrapolation which can result from this.270 Law which is out of touch with reality is probably bad law.271 It can no longer resolve the problems it is supposed to solve. Because it has lost its links to them. At the same time the increase in abstraction brings additional, but artificial problems which only exist at a conceptual level, not in reality.272 These weaknesses of abstraction explain – at least partly – the renaissance of narrative jurisprudence which has been noted in the last few decades.

4.6.2 T aking Each Case on Its Merits – The Opposite of Abstraction What it means to make the law more concrete is shown very clearly by the approach of taking each case on its merits. Taking each case on its merits looks at potentially all273 the circumstances of a specific individual case.274 Very little is irrelevant initially. The German constitutional court has chosen to make this approach its preferred approach.275 That shows that even an abstract continental European constitutional law in practice hits limits which can only be overcome by being specific. As necessary as this practice may appear to be: of course it has risks and problems associated to it, which abstraction per se tries to avoid. Legal standards become “fluid” in

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Similarly Raiser (2007), P. 98. On the internal dynamics of legal concepts Röhl/Röhl (2008), P. 71 ff. 270 At length on the criticism of the excesses of development of concepts in jurisprudence Rüthers (1999), P. 463 ff. 271 Großfeld (1995), P. 41 f., stresses the danger of (too) abstract thought for jurisprudence. Therefore he pleads in favour of visual thinking in the law, so that the law remains in contact with real life and is able to fulfil its role. 272 Similarly Röhl/Röhl (2008), P. 69. 273 Luhmann (1993), P. 345, stresses correctly that in fact taking all circumstances into account is of course not possible. Therefore he deems the method of each case on its merits not usable. 274 Röhl/Röhl (2008), P. 665. 275 Thus very emphatically Röhl/Röhl (2008), P. 665. 269

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communication and legal communication runs the risk of becoming a non-binding discussion, terminating in chance or random results.

4.6.3 Faces and Stories – Making the Law Personal Images need faces.276 Anyone who thinks in images doesn’t usually think only in concrete categories but also with faces. Visual thinking is personalised thinking. This link has a biological-anthropological background.277 The more the law visualises therefore, the more strongly it will also become personalised. What does that mean for a modern legal system? Typical of Western law at present is that it fundamentally is applied “without regard to the person”.278 That is why Justitia wears a blindfold in so many representations of justice.279 For as long as writing is the decisive medium of the law, it is possible to mainly de-personalise the law. Written law seems to be impersonal, neutral and objective.280 That will change if the logic of images impacts the law. Because then the people who are involved in a legal case become much more important. Examples of the trend towards personalisation can already be seen every time the mass media report on legal matters. For example, legislation: if a new law is the subject of a media report, in most cases it is not discussing mainly the abstract content of the law. Just as important – not always, but increasingly – is who initiated the law and who opposed it. In the presentation by the image-dominated mass media, legislative processes are not dry and colourless, where various interests are hammered out. Parliamentary work becomes colourful, tense duels between different opponents.281 Another 276

On the personality cult of the image media Luhmann (1996), P. 66 ff. inter alia; Postman (1999), P. 151 f. On the history of presentation of faces in the media Schulz (2007), P. 293 f. Macho (1996), P. 107 ascribes to modern society a ”Hyper-dominance of faces”. On the cultural historical importance of faces Eibl-Eibesfeldt/Sütterlin (1992), P. 283 ff., 371 ff. 277 Similarly Berghaus (1986), P. 288 inter alia. Generally on the importance of faces and of acting in communication Eibl-Eibesfeldt (1997), P. 619 ff. with extensive references. On the importance of images from a psycho-analytical perspective Tisseron (2007), P. 307 ff. 278 Röhl/Ulbrich (2000), P. 382 f. inter alia. In Franz Kafka‘s TheTrial this concept it taken to its inhuman extreme. 279 Schild (1995), P. 197, who challenges critically this interpretation of the blindfold. The interpretation of the blindfold has not always been the same. It depended on cultural and political context and conditions. The current interpretation – blindfold as a symbol of even-handedness and equal treatment before the law – grew up in Europe only in the 16th and 17th centuries. In earlier centuries the blindfold was rather seen as a symbol for the arbitrariness and power-obsession of the legal system which was blind to real justice. On this Asimow/Mader (2004), P. 9 f. Similarly Collins/Skover (1992), P. 546 inter alia, who points to the widespread tradition in the USA of an “open-eyed” Justitia. 280 Katsh (1995), P. 164. 281 This trend is seen even more clearly and for longer in election campaign reporting: political topics are more and more strongly reported via personalities. At length on this Jucknat (2007),

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example is the growing field of “defendant PR”282 which is now used as a strategic instrument.283 In celebrity cases the accused present themselves in a sympathetic, promotional, light to the mass media and try to mobilise mass sympathy and so influence the verdict of the court.284 This merges seamlessly into the trend of the modern media towards reporting on celebrities.285 Whether this has any effects on verdicts has not yet been researched empirically. Although there are some individual examples of changes in verdict thanks to media pressure.286 In recent times judges have stressed more and more often that they have not been influenced in their decisions by the expectations of public opinion.287 Whether that is actually the case, we will not try to determine here.288 In any case, it shows that judges are aware of the pressure on them as individuals from the expectations of public opinion.289 In the image-rich world of the media they are no longer just an unknown part of an anonymous, impersonal court. They become – at least in high-profile trials – celebrity faces and people on the public stage.290 And public celebrities are highly dependent on the media.291 Celebrities in the legal arena therefore are no longer just subject to legal logic, but also ever more strongly to the logic of the media and celebrities. Legal and media logic are, however, only compatible to a limited extent. The status of a celebrity for a legal person is therefore not without risk to the whole judicial system. So is this personalisation, which is already underway, good or bad for the law? That is still open. At first sight the increasing personalisation of justice and the law P. 147 ff. But this is – as Jucknat (2007), P. 153 ff., show on the basis of extensive empirical materials – in no way linked to a lack of thematic material. 282 At length on this Gerhardt (1998), P. 515 ff. Wagner (1987), P. 81 ff., talks vividly about these cases, that the defence is trying to turn the journalists into their friends. Critical on this Hamm (1997), P. 117 f. Informative and striking examples from Wagner (1987), P. 104 ff., in three case studies. 283 At length on “litigation PR” as a strategic instrument in legal quarrels Holzinger/Wolff (2009), P. 19 ff. inter alia and pass. 284 On this already Wagner (1987), P. 97 ff., who even notes in this context a “loss of autonomy for criminal justice in the media society”. Critical also Hamm (1997), P. 53 ff. 285 At length on this Schierl (2007a), P. 11 ff., with copious empirical material. Informative on this is the interview with Brigitte Koppenhöfer, a judge in a regional court, who was involved in several spectacular business criminal trials. It is printed in full by Holzinger/Wolff (2009), P. 89 ff. 286 Wagner (1987), P. 90 ff. 287 On an example of this Hamm (1997), P. 67. 288 Luhmann (1969), P. 126 f. inter alia, saw early on the potential possibility of media influence on court decisions. On this also Merten (1997), P. 24 ff. inter alia. Individual traces in practice were also collected by Wagner (1987), P. 87 ff. 289 On this also Merten (1997), P. 25, and Gerhardt (1998), P. 515 inter alia Wagner (1987), P. 89, stresses that in particular lay judges (e.g. magistrates) are at risk of pressure from the media. 290 This is strongly criticised by Schulze-Fielitz (1997), P. 29 f., as being an infringement of the rule of law, using the example of the personalised criticism of the decisions of the German constitutional court. 291 At length on how celebrities are created by the media and then struck down again, Fröhlich et al (2007), P. 143 ff.

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seems to have mainly negative consequences: the objectivity of the law seems to get lost.292 But looking more closely, the conclusion needs to be a bit more qualified. Because legal systems only function in the long term if the citizens they apply to have confidence in the law itself, the legislators293, and those who apply the law.294 Legal standards can be enforced using the power of the state. But the law really depends on acceptance.295 Social peace is only possible when legal standards are accepted as broadly legitimate by the population. Acceptance arises – not solely, but also – through confidence.296 A phylogenetic legacy in humans is the mechanisms which control how and why trust is developed and then withdrawn again.297 Of particular importance in the difficult process of building up trust are the people. Whether you trust or not can be more simply and more effectively decided if you are dealing with a person. How far you can trust an abstract idea or a political party or group, is a question which people find harder to deal with. This insight leads to a more positive evaluation of personalisation of the law. If the law becomes more personalised the trust of the population in the legal system can (again) be reinforced. Independently of the question of its evaluation: the personalisation of the law will also strengthen overall the trend towards making the law more concrete. Faces and personal stories and fates are the decisive topoi in an image-driven society.298 Abstract, generally applicable rules will take a back seat, judging each case on its own merits will become the decisive criterion.299 Adversarial processes will become more relevant.300 Compromises, comparisons and other consensus-based processes will possibly lose some of their importance. Typical legal methods such as deductive or inductive logic, drawing analogies or syllogism, may in fact be unusable 292 If and how far the law is actually objective at all is in itself a very problematic and controversial question, which will not be pursued here. 293 Parallel to the personalisation of the law we can also note an ever increasing personalisation in politics in general and of elections in particular. At length on this finding, for example, Jucknat (2007), P. 147 ff. inter alia. On this also Klein (2005), P. 207 ff. inter alia, who looks at the influence of the two TV-face-to-face debates on the outcome of the German Parliament elections in 2002. Unlike many critics of this development, Lübbe (2004), P. 153, sees it as being mainly positive. Because the decision of the voters is necessarily a decision of trust. And trust is easier to generate for an individual person than for an abstract idea or party. Also Jucknat (2007), P. 159, sees the development of ample political arguments. 294 On the importance of trust for the law in general Raiser (2007), P. 327 ff. 295 Raiser (2007), P. 327. 296 At length on the close connection between acceptance and trust Lucke (1995), P. 31 ff. inter alia. 297 On trust from the psychological point of view Oswald (1994), P. 115 ff. inter alia. On the - phylogenetically viewed – new question, how trust can be created in cyber-space, an overview from Kuhlen (2008), P. 37 ff. 298 Thoroughly on the importance of faces in modern society Macho (1996), P. 87 ff., who in ibid, P. 107, even talks about the “hyper-dominance of faces”. 299 This is predicted by Katsh (1989), P. 15. 300 This is predicted by Röhl/Ulbrich (2000), P. 383 f. inter alia. The adversarial process is deeply rooted particularly in the American legal culture. At length on this Asimow (2004), P. 621 ff.

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with images.301 Highly abstract chains of argument can only be represented in images with great difficulty.302 The visualification of the law turns legal argument into story-telling.303 Plausible, colourful, image-rich stories presented in a suitably dramatic form will create interest in the general public.304 Sober, abstract, possibly even written statements are hardly in a position to do this.

4.7 Fear of Closeness? Emotions in Legal Communication Images are clearly more basically emotional than text and words.305 In complete contrast to that, the law emphasises its sobriety, its objectivity, in brief: its lack of emotion. Law and feelings – in modern legal thinking these are two separate worlds, which (should) have nothing to do with each other. So what happens when emotional images collide with cold-hearted law? If the law becomes visualified, will legal communication become emotional as a result. What effects does this development have on the law? Is there then something like a jurisdiction of emotions, which is highly emotional and populist.306 So far that has scarcely been researched. Although insight can be gained by looking at the well documented and analysed impact of television on society. Why? Visualification is not an isolated trend. It occurs in close connection to the culture of the electronic mass media. Visualification is particularly closely linked to the culture of television.307 What results visualification, particularly via television, would have, is being intensively researched by communications science and political science. One result can be noted in any case: visualification and television lead to a loss of distance.308 The medium of television is embedded in people’s every-

301

Boehme-Neßler (2003a), P. 127. But there are approaches to this with examples in Brunschwig (2001), P. 217 ff. and Hilgendorf (2003). 303 Thus very concisely Sherwin (2000), P. 42. At least in the American jury system presenting legal arguments in front of the court can be seen as “story-telling”. As Friedman says (1989), P. 1595: “A trial is also a narrative competition.” 304 Dramatising has long been known as a form of presentation and composition in art. On this Shusterman (2001), P. 126 ff. inter alia. 305 Doelker (1997), P. 57; Röhl/Ulbrich (2000), P. 378 inter alia. 306 That is the horror scenario from Garapon (1996), P. 235 ff. 307 At length on this Boehme-Neßler (2003a), P. 126 ff. inter alia. 308 Similarly Meyer (2001), P. 108. But critical on this research approach is Saxer (2007), P. 38, 84 f. Distance has an importance in human society which should not be under-estimated. In all human societies distance exists – as well as closeness. Distance is an anthropological constant. This also has some phylogenetic reasons. At length on this Eibl-Eibesfeldt (1997), P. 475 ff. inter alia 302

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day life.309 TV images are easily accessible and suggest that the events which they show are just as close.310 Conclusions about loss of distance from television images can be cautiously generalised. Visualisation reduces the distance between the legal system and the everyday life of the public. That is an ambivalent development. Initially it is definitely positive. In a democratic constitutional state the law should basically be open and transparent. The distance between the people – who rule democratically – and the laws of the state must not be too great. The loss of distance caused by TV images of the law does, however, mask a fundamental problem. The distance between the public and the legal system in fact also has a therapeutic function. The law should not be populist. Populist surges of emotion and prejudices should not – and this is the function of distance – have a direct effect on the legal system. Behind this is the tradition of rational justice, keeping its distance, definitely not emotional. If the distance if lost, then the law is also weakened against populist and demagogic influences. It can lose its vital braking function.311

4.8 Disorderly Thinking? – Successivity and Associativity Successivity is typical for thinking in images. Different images follow each other or are added to each other. Through successive organisation the images actually model the movement of thought.312 Successive – or to say it another way: procedural – thought is nothing new for the law. The law has always thought with the help of arguments, which were exchanged in sequence. The complaint and statement of defence in civil proceedings are a particularly vivid example of this. Successivity can also be found in graduated procedures, where different parts of a process relate to each other and have to be carried out in sequence. This can be seen clearly in the legislative process, and also in administrative procedures and court processes. But thinking in images is also associative and erratic. Because images activate networks of associations in the viewer which are highly subjectively coloured.313 That is something foreign to modern law. At least in literate societies legal thought and the legal process are highly structured. Without a written record the structure of legal communication is only possible to a very limited extent. The legal process in oral societies was therefore – as legal anthropology has shown us – more visual, 309

Just how much mass media actually shape daily life is shown time and again by empirical studies. Informative on this Fritz/Klingler (2003), P. 12 ff., who present and analyse the results of the ARD/ZDF (German TV) Study on Mass communication 2000. 310 It gets forgotten in this that TV images are artistic results of a production process which on the whole have nothing to do with everyday reality. On this Meyer (2001), P. 109 f. 311 Similarly Sherwin (2000), P. 245. At length on the “Culture of slowness” which permeates the law, Boehme-Neßler (2008), P. 483 ff. 312 Meyer et al. (2000), P. 62. 313 On this see above Chap. 3.5.6.

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associative and erratic. So what is implied by the visualification of the law? Possibly in a digital society the law will become more like the law in an oral society again.314 Then we could talk of a re-oralisation at a digital level.

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Vorländer, Hans (2006): Deutungsmacht – Die Macht der Verfassungsgerichtsbarkeit, in: Hans Vorländer (Ed.): Die Deutungsmacht der Verfassungsgerichtsbarkeit. Wiesbaden, P. 9 ff. Vorländer, Hans/Brodocz, André (2006): Das Vertrauen in das Bundesverfassungsgericht. Ergebnisse einer repräsentativen Bevölkerungsumfrage, in: Hans Vorländer (Ed.): Die Deutungsmacht der Verfassungsgerichtsbarkeit. Wiesbaden, P. 259 ff. Wagner, Joachim (1987): Strafprozeßführung über Medien. Baden-Baden. Wandhoff, Haiko (2003): Im virtuellen Raum des Textes: Bild, Schrift und Zahl in Chrétiens de Troyes „Erec et Enide“, in: Ulrich Schmitz/Horst Wenzel (Ed.): Wissen und neue Medien. Bilder und Zeichen von 800 bis 2000. Berlin, P. 39 ff. Warnke, Martin (1973): Durchbrochene Geschichte? Die Bilderstürme der Wiedertäufer in Münster 1534/1535, in: Martin Warnke (Ed.): Bildersturm. Die Zerstörung des Kunstwerks. Munich, P. 65 ff. Watkin, Thomas Glyn (2004): The Powers that Be Are Seated. Symbolism in English Law and in the English Legal System, in: Reiner Schulze (Ed.): Rechtssymbolik und Wertevermittlung. Berlin, P. 149 ff. Weber, Max (1972): Wirtschaft und Gesellschaft. 5th Edition Tübingen. Wenzel, Horst (2001): Luthers Briefe im Medienwechsel von der Manuskriptkultur zum Buchdruck, in: Horst Wenzel u.a. (Ed.): Audiovisualität vor und nach Gutenberg. Zur Kulturgeschichte der medialen Umbrüche. Vienna, P. 185 ff. Wesel, Reinhard (2003): Die symbolischen Vereinten Nationen, in: Sabine von Schorlemer (Ed.): Praxis-Handbuch UNO. Die Vereinten Nationen im Lichte globaler Herausforderungen. Berlin a.o., P. 591 ff. Wesel, Reinhard (2004): Symbolische Politik der Vereinten Nationen. Die „Weltkonferenzen“ als Rituale. Opladen. Wesel, Uwe (1985): Frühformen des Rechts in vorstaatlichen Gesellschaften. Frankfurt am Main. Wesel, Uwe (2001): Geschichte des Rechts. Von den Frühformen bis zur Gegenwart. 2nd Edition Munich. Wimmer, Rainer (1998): Zur juristischen Fachsprache aus linguistischer Sicht, in: Sprache und Literatur in Wissenschaft und Unterricht, Vol. 81, P. 8 ff. Winterhoff-Spurk, Peter (2005): Kalte Herzen. Wie das Fernsehen unseren Charakter formt. Stuttgart. Wortmann, Volker (2003): Authentisches Bild und authentisierende Form. Cologne. Zajonc, R. B. (1965): Social Facilitation, in: Science 149, P. 260 ff. Zimbardo, Philip D. (1992): Psychologie. 5th Edition Berlin u.a.

Chapter 5

Fuzzy Communication: Composition and Performance of the Law

Visual communication is more unpredictable – or to put it another way: more unfocused – than communication using words and text. For the law this is a problem which should not be under-estimated. Because the law is supposed to – and wants to – guarantee reliability, continuity and therefore predictability. So how can visual communication be made (more) reliable, so that it can be used for judicial purposes?

5.1 F uzzy Control – How Can Visual (Legal) Communication Be Guided? Visual communication is far harder to control and guide reliably than is written or oral communication. Far more than language, images create effects in the recipients which were neither intended nor foreseeable. Images are less precise and have subsemantic side effects which are on the whole impossible to calculate. What causes the basic lack of focus of images? Images cannot express logical connections. Images cannot be assigned a single, unambiguous meaning: they are – to put it another way – non-notational. Whatever meaning an image has, depends on a whole bundle of different, not least cultural, auxiliary factors. For images there are – in other words – no grammar-books and no dictionaries. The

On the causes from a cognitive psychology viewpoint Gombrich (1984), P. 281 inter alia. Sherwin (2000), P. 141. Boehm (2001), P. 267. The same images are understood quite differently in different cultures. On this using the example of pictograms Brugger (2005), P. 41, on the basis of empirical data. Thus very pointedly Doelker (1997), P. 58. The existence of a grammar of images is denied by Pasolini (1971), P. 39 f. Similarly sceptical is von Monkiewitsch (2004), P. 57 ff., who strongly stresses the role of (creative) chance in the creation of images. But this is contradicted by Vollmer (2004), P. 19 ff., who at least for photographic images talks about a fundamental grammar.


151

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fundamental openness or ambiguity of the language of images can be made much less ambiguous by adding verbal elements to an image. The lack of controllable focus of visual communication has a neuro-physiological basis. Images do not work – unlike words and text – directly on the behaviour of people, but on the behavioural attitudes behind that. So images work on the underlying attitudes and intentions to act. What concrete behaviour then arises from this in any individual case depends on many and varied factors. Because these factors and their interactions cannot be determined, visual communication is hard to control. In the anarchic world of art that is not a problem, quite the opposite. The unexpected, new and surprising is being sought after. But the situation is quite different in the legal system that is supposed to produce order, stability and predictability. The intrinsic lack of controllable focus of visual communication is not an advantage from the point of view of the law, but rather a severe disadvantage. Lack of focus is already in principle difficult to reconcile with the task of the law to guarantee stability and to produce predictable results. Because the exact cause-and-effect relationships can only be determined with difficulty, visual communication easily tips over into a blurring of responsibilities. This typical characteristic of visual communication stands in flagrant contradiction to the law’s need to define areas of responsibility and binding commitments as exactly as possible. So should the law therefore preferably avoid communication using images and graphics? That cannot be the solution. Visual communication is becoming ever more important and influential for all areas of society. The law cannot just close its eyes to this. Their more scatter-gun result does not mean that forms of visual communication cannot be controlled at all. Imagery research shows that the effect of visual communication on recipients can be consciously controlled10 – even if not with great precision. This insight is in fact the scientific basis for all advertising. What is quite clear, however, is that the control mechanisms and instruments for communication using images are different to those for word and text communication. That is a challenge for the law. Because its control mechanisms to date are, of course, tailored to the use of textual communication. The law must therefore (re-) develop (new) capabilities for communicating using images.

5.2 P erformance and Composition – The Classical Means of Visual Communication How can visual communication, despite all these difficulties, be controlled – at least partially? The law is at present fairly helpless when faced with this question. Other areas of society have more experience, however, with targeted visual

Doelker (1997), P. 60. On this Kroeber-Riel (1996), P. 84 with many references from cognitive psychological research. Kroeber-Riel (1996), P. 84 inter alia. On this Meyer (2001), P. 107, although in a different context. 10 At length on this Kroeber-Riel (1996), P. 81 ff. inter alia.

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communication. A look at the experiences garnered there may help when talking about the intentional shaping of visual legal communication. Stage-management and composition11 – these are the traditional means with which people have tried for millennia to control the impact of images. Controlling legal communication means: images in the law and images of the law must be deliberately composed and performed using the rules of the art. The more powerfully images and television impact the law, the more the law will have to stage-manage them.12 Examples from USA, which show the changes in legal communication in the courtroom thanks to live reporting on television, are an indication of this.13 What might the rules be, by which the law could – and should – compose and stage-manage?14 Painting, theatre and film have developed a whole arsenal of how images are composed and performed. It is therefore useful to take a look at the range of instruments in that collection. From this rich fund, rules can be developed which might be important for visual legal communication.

5.2.1 P ainting, Graphics, Photography – How Are Images Composed? Are there basic rules for shaping an image? Those involved in creative imagery often disagree about this.15 Science sees things differently: it has derived a plethora of – sometimes universally applicable – rules, which underlie the composition of images. There is a generally valid composition schema.16 Every image follows it, every conscious or unconscious formation of an image, independent of what branch of the arts it comes from.17 The theory that there are universal rules of composition for images is not just underpinned by a whole series of empirical analyses. There are two fundamental principles which also support this theory: a physiological one and a semiotic one. The perception of images obviously has a biological basis. Light reflexes are received via sense organs and processed by the human brain.18 Only after these neuro-physiological construction processes are complete are images perceived.19 However different individual human brains may be: the biological rules of image reception and 11

On composition from an art history viewpoint Bätschmann (2001), P. 142 ff. inter alia. On this very critically Sherwin (2000), P. 141 ff. inter alia, who warns of the danger of a jurisprudence of appearances. 13 Thaler (1994), pass.; Goldfarb (1998), pass. 14 On this also Boehme-Neßler (2003), P. 125 ff. inter alia. 15 von Monkiewitsch (2004), P. 74 f. 16 Arnheim (2003), P. 12 ff. 17 Thus very decisively Vollmer (2004), P. 19 f. Arnheim (2003), P. 12 ff., shows this with an example from visual arts; Vollmer (2004), P. 19 ff., explains this for photography; Dorsch-Jungsberger (2003), P. 171 ff., confirms this theory with the example of journalistic image publicity. 18 At length on this Lester (2003), P. 5 ff. 19 At length on the perception of images as image construction see above Chap. 3.4. 12

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construction are – for all the individual differences – fundamentally fixed and the same. If images are to be perceived they must adapt to the receptive capacities of their addressees. If they do not do so, they run the risk of not being perceived. But if images adhere to the basic rules, that means they are formed in accordance with potentially universal rules. This argument can be reinforced semiotically. It is the composition of an image which creates its meaning.20 That various graphic signs and physical light reflexes have a meaning depends on their composition. That a round shape is recognised as an apple, is no longer a physical process. The organisation – the composition – of various shapes, colours21 and movements on an image make this message clear.22

5.2.2 T heatre, Film, Television – How Are Moving Images Performed? Movement is noticeable. Movement catches human attention to a high degree. That has very early phylogenetic origins: the perception of movement is of huge importance to almost all organisms. Movement means danger or special opportunities, while unmoving objects as a rule can be ignored without danger.23 Movement therefore has a particularly major importance for visual communication.24 It is therefore only logical that movement has become an important mechanism for shaping visual communication. Movement is even – only apparently a paradox – an important element in still images. In the history of art there are a plethora of examples of the superlative importance of movement in visual arts. Taking this thought a step further takes us to moving images: an early form of visual communication using moving images is the theatre.25 Newer forms are films and television. How can visual communication using moving images be controlled? The means of using moving images deliberately and in a targeted way for communication, is performance or stage-management.26 Performance is found in art, for example in

20

Thus very decisively Arnheim (2003), P. 240 f. On the special meaning of colours and relationships between colours for images Bätschmann (2001), P. 138 ff. inter alia; M. Wagner (2002), P. 18 ff. inter alia. On colour as language Albrecht (1974) pass. Berlin/Kay (1999), P. 1 ff. prove empirically that all languages have terms and concepts for particular colours. The universality of colours is an indication of their major importance. On the physiology of seeing colours Gregory (2001), P. 157 ff. 22 Arnheim (2003), P. 241. 23 Gregory (2001), P. 128. 24 Similarly Lester (2003), P. 45. 25 On the major importance of movement for the theatre from a theatre studies point of view Balme (2001), P. 69 f. inter alia. 26 On the concept of stage-management Fischer-Lichte (2007), P. 12 ff. inter alia; Müller-Doohm/ Neumann-Braun (1995), P. 10; Fischer-Lichte (1998), P. 84 ff. inter alia; Schultz (2003), P. 11. 21

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the theatre or in films.27 Performance has acquired its huge importance from the fact that it is not just limited to the field of the arts. Performance is not just an aesthetic category but also an anthropological one.28 Performance is everywhere that people are.29 Everyday life is stage-managed:30 whenever people appear, they organise and shape their behaviour and their performance to achieve an effect.31 Even and particularly on the Internet there is – more or less generally – Impression Management going on.32 Even if it does not always happen, or not always consciously: performance is an integral part of human behaviour. Impression Management is just a newer term for an ancient phenomenon.33 Why is performance so all-pervasive? One reason is its specific ability to deliver. A performance makes it possible to show things and contents which per se are not perceptible.34 Stage-management therefore increases the scope for action and communication between people quite considerably. People have never been able to resist it.

5.2.3 D rama, Baby, Drama! – Visual Communication in Television The modern, very influential, practices of composition and performance make television what it is.35 Media sciences have discovered that unwritten “laws” exist which are accepted and applied in the media sectors as rules of the profession.36 In doing this television – hardly surprisingly – is drawing on centuries of skills developed by stage theatre.37

27

This can be classified as aesthetic stage-management. On this Fischer-Lichte (1998), P. 84 ff. Fischer-Lichte (2007), P. 15. 29 This can be described as an anthropological aspect of stage-management. On this Iser (1991), P. 504 ff. 30 Müller-Doohm/Neumann-Braun (1995), P. 10. Seminal for this insight Goffman (1959/2003), P. 19 ff. and pass. 31 Müller-Doohm/Neumann-Braun (1995), P. 10. This is also shown by Lenz (2009), P. 240 ff. with – unromantic – clarity. 32 On self-representation on the Internet Wallace (2001), P. 28 ff. inter alia. How great the human need for self production online is, is demonstrated by the existence of almost innumerable personal Homepages. On this Wallace (2001), P. 31 ff. On the theatrification and self-production in OnlineDating Lenz (2009), P. 250 f. inter alia. 33 On this from a behavioural biology point of view Eibl-Eibesfeldt/Sütterlin (2007), P. 388 f. 34 Iser (1991), P. 504, 512. 35 On the dominant importance of electronic media for sharing values, shaping opinions and social integration Roßnagel (2004), P. 16 f. 36 Thomas Meyer (2001), P. 50; Dörner (2001), P. 239 ff. 37 Thomas Meyer (2001), P. 54. Meyer/Kampmann (1998), P. 67 ff., and Thomas Meyer et al (2000), P. 144 ff., describe a whole series of practical examples. 28

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Drama and mini-drama – known to literature and the theatre since forever38 – are used by television as simple but effective production models. Like other mass media, television focuses its attention on individual incidents and special events.39 It prefers to present short, complete episodes. Two things above all are important: scandals and people. Particular attention is given to conflicts, breaches of legal or moral standards or scandals.40 People are used as tangible symbols for abstract conflicts or an unknown future.41 Themes are personified as much as possible.42 Different trends, interests or ideas are displayed as fateful duels between two people. Conflicts become decisive battles between superhuman forces of fate.43 Bad circumstances are re-scripted or blown up into scandals.44 Media sciences have now discovered further topoi and scenarios.45 All these performance rules can be explained – not exclusively, but to a very large extent – by the driver of entertainment. Around three quarters of transmission time on television consists of entertainment productions.46 Entertainment is also increasingly becoming the decisive factor for the production of all other programmes.47 Why does television dramatise? It is obvious: it is a question of the public’s attention span. By using its technical capacities to entertain the public, television achieves significantly more attention.48 And it needs this attention to get finance.49 This connection has wide-ranging consequences: the entertainment effect is increasingly the one decisive criterion for selection and presentation.50 All areas of culture, politics, economics and society are increasingly only being presented if they have 38

On the importance of dramatisation in art Shusterman (2001), P. 126 ff. Thomas Meyer (2001), P. 47. On the importance of events for the creation and dissemination of images Perlmutter (2003), P. 11 ff. inter alia. 40 Luhmann (1996), P. 59 ff.; Thomas Meyer (2001), P. 47. On the image as scandal at length Frankenberg (2004), P. 33 ff. with examples. 41 Luhmann (1996), P. 66; Thomas Meyer (2001), P. 50 with examples. 42 Thomas Meyer (2001), P. 50 f. With a current example. 43 Thomas Meyer (2001), P. 51. At length on this Dörner (2001), P. 118. On personalisation in German politics based on even earlier empirical research Kaase (1994), P. 214 ff. Thanks to his material, ibid, P. 226, he comes to a more reticent evaluation of the trends towards personalisation. But this is probably now – 15 years since his research – out of date. 44 Kepplinger (2001), P. 62 f. with examples. 45 At length on this Thomas Meyer et al (2000), P. 194 ff. with a description of the current state of research. 46 Thomas Meyer et al (2000), P. 110 inter alia. Possibly the percentage has now increased. 47 Very critical about this Postman (1999), P. 110. Dörner (2001), P. 31 ff. Talks exaggeratedly in this context about the fact that politics is developing ever more into politainment. 48 Thomas Meyer (2001), P. 54; Dörner (2001), P. 33. 49 Sunstein (2001), P. 682 ff., clearly analyses the importance of high viewer figures for television. The viewer’s attention is also very relevant for public broadcasters even despite public funding. Even here advertising pays at least some of the financing of programmes. What is more important though is the legitimising effect of high ratings for the public broadcaster. With high viewer ratings they can justify their use of public money and their very existence (politically). 50 Very critical on this Postman (1999), P. 110 ff. 39

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an entertainment value.51 Logic, common sense, complexity, logical conclusions and lack of contradiction are not very entertaining and therefore become less important.52 This cannot continue long-term without having an effect on the world outlook of the recipients and on social communication generally.

5.3 I mage Sciences as Teacher – The Composition of Legal-Images If the law wants to communicate using images, then it has to learn and apply the relevant rules of composition.53 The recognition of various different sciences of images54 and the artistic experience of several millennia should prove fruitful when it comes to the transcoding55 of legal textual and verbal signs into visual communication. Modern visualification of the law can pick up some of the rich and sophisticated material which was produced in the Middle Ages. The Middle Ages was the golden age of visual legal communication. Some elements of composition which were developed and used then are still comprehensible today. The classic example of this is of course the hand-shake as an iconic symbol of the conclusion of a contract.56 Other visual signs are now out of date and would only be understood with difficulty nowadays.57 There is therefore no shortcut to developing a contemporary legal language of images.

51

A particularly clear example of this is infotainment. At length on this Tenscher (1998), P. 193. Thus very decisively Postman (1999), P. 130. But less pessimistic is Thomas Meyer (2001), P. 54. Dörner (2001), P. 97 ff. contradicts Postman with the – probably correct – theory that a public entertainment body has important functions for public communication. 53 A plethora of individual precise rules are derived by Doelker (1997), P. 169 ff., and Brunschwig (2001), P. 86 ff. 54 Whether there is really already a cross-disciplinary science of images, is doubtful. There are anyway many different researchers, who have been – in some cases for a very long time– studying images intensively. 55 Semiotics talk about transcoding when talking about the transposition of signs of one system with signs of another. On this Doelker (1997), P. 129, 158 ff., with many examples. As Brunschwig (2001), P. 80 f., correctly stresses, the concept – actually more obvious – of translation is too narrow to describe this process. 56 On the hand-shake as a gesture of law Knieper (2003), P. 203 inter alia. On the legal iconographic importance of the handshake Kocher (1992), P. 37, with examples. So it is not by chance, that Brunschwig (2001) with her modern visualisation of Art. 1 Para. 1 of the Swiss Bond Law uses the handshake as a symbol of concluding a contract. Also Röhl (2005), P. 62 f. 57 This often results from the fact that the legal institutions or legal conditions which are represented no longer exist. An example of this is the gesture of submission with which the fief relationship is portrayed, or the judge’s sword which was used as the symbol of criminal justice. On this Schild (2003), P. 11 ff. Even if the legal content is still known of today, the iconic depiction of the time may still be incomprehensible today. 52

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Attempts to develop modern, legal iconic symbols can already be detected. There are different streams of development which can be observed. One direction for modern visualification of the law is strongly influenced by legal archaeology and has an art history bias. It develops a judicial image grammar from the rich vein of material uncovered by art history.58 A different direction of visualification of modern law is more distant from the historical traditions.59 It looks for inspiration to the visual language of modern graphic design.60 A third way is taken by IT-inspired visualification of the law.61 Starting from ICT it attempts to depict legal processes and enable them to be carried out using multi-media. A pioneering example for the application of multi-media is the emission protection approval process.62

5.4 A pplied Theatre Studies – Performing Legal Processes The law does not just consist of static texts, but also of processes and procedures, which eventually lead back to the texts. So legal dynamics also need to be transcoded. To state it clearly: how can constitutional amendment processes, legislative processes, and court cases be presented using images – or performed? Performances are nothing new for the law. The law has always been stage-managed. An important form of performance is rituals.63 A particularly impressive example of stage-managing of the law is the trial in a criminal case.

5.4.1 Stage-Managing the Law – Why? Does the law really require stage-management? Simple answer: the law cannot live without it. Why is that the case? Performances are just a means to present abstract content in a way in which it can be perceived by the senses.64 Only by performance can such abstract concepts

58

The pioneer in this direction is Brunschwig (2001). She is able to draw from multiple works on legal archaeology. An important representative of this direction of research is Kocher (1992). On legal iconography’s modernisation of legal archaeology at length Brunschwig (1999), P. 51 ff. 59 The pioneer in this direction is Hilgendorf (2003). 60 Alongside Hilgendorf (2003) Röhl et al (2005), P. 51 ff., mainly belong to this approach: they make fruitful use of the modern art form of the comic to present legal contents. 61 The pioneers are Roßnagel/Schroeder (1999). 62 Roßnagel/Schroeder (1999). On the Internet you can track the multi-media presentation of a real approval process: www.pi.informatik.to-darmstadt.de/mmgv (17/05/06). 63 On the relationships between staging and ritual, thoroughly Schechner (2006), P. 52. 64 Similarly Iser (1991), P. 512.

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as law, power, justice or democracy be depicted in a way the senses can recognise.65 This can be described as the visualisation function of performing. The visualisation function of performance is of major importance for the legal system. The law as such is already a very abstract concept. The legal system consists of a whole plethora of abstract concepts with which it works. At the same time, the legal system has to be able to explain itself to those it affects. Otherwise there is the risk that acceptance by the citizens who need to obey the law, will be lost. So the law can scarcely be perceived by the senses, but at the same time must be perceived by them. This contradiction can really only be resolved by performance. Just as important is the legitimising function. Social phenomena acquire social legitimacy and permanence not least because they can be presented and from their actual presentation.66 In other words: what cannot be perceived does not exist. That is the basic law of society in the media era. This can be made impressively clear through the example of power. In order for power to really have an effect and be maintained long-term, it has to be represented – or performed.67 This is even true for power which is based on violence and which therefore tends to shun the daylight of publicity. Even that cannot persist for very long without a minimum of acceptance. It applies that much more for democratic power: it needs to be broadly accepted. Without the representation of a claim to power, therefore, no power can be achieved or exercised.68 That means therefore: social phenomena have to make their claim to legitimacy very visible in order to exist at all. The method of choice for this is performance, quite often in the heightened form of a ritual.69 What does this insight mean for the law? The legitimising function of performing is particularly important for the law. For the law is strongly dependent on acceptance by the citizens.70 Just for this reason alone it is necessary for the law to produce itself on stage. In practice, therefore, judicial staging can be observed. Just a couple of examples: judicial buildings from the late nineteenth/early twentieth centuries are architectural statements, through which the law clearly lays claim to its legitimacy.71 Pronouncement of sentencing which is introduced by the deliberately dramatic formula “In the name of the 65

A stage-management represents an extremely demanding, strategically oriented activity. In Greek antiquity the ability to develop staging-strategies was seen as an important qualification for the exercise of political and military office. Successful producers were elected time and again to political and military offices. Informative on this Fischer-Lichte (2004), P. 318 f. 66 Thus Soeffner (1998), P. 216 f., although relating specifically to power. But the idea can be extended to all social phenomena. 67 Soeffner (1998), P. 216 f. 68 This link is stressed by Soeffner (1998), P. 216 f. 69 To this end new rituals are often invented and presented as being old traditions. Thoroughly on this Hobsbawm (1992), P. 1 f., and Hobsbawm (1992a), P. 303 ff. 70 This is not altered by the fact that the law can be imposed using state force. Because in a democratic state no legal standard can be imposed long term using force if it is not accepted. 71 At length on the interpretation of the “legal culture cast in stone” Gephart (2006), P. 241 ff. Specially on the monumental architecture of the palaces of justice Klemmer et al (1993), P. 34 ff. Wesel (2001), P. 428 f.

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people …”, can also be interpreted as performance, through which the legal system is parading its links to the citizenry and so stressing its legitimacy. That social phenomena make their claims to legitimacy visible through performance is not a new feature. But: in the modern media society the need for performing has increased considerably. Only something which can be seen through the lens of popular forms of public performance can be culturally effective in the long-term. The law is therefore subjected to a substantial pressure to stage-manage its performance, which is likely to increase still further. Refusal cannot be the answer. Because if the law refuses long-term to meet the demands placed on it by a media-driven society for popular, effective performance, then it runs the risk of not being noticed any longer. At best this is harmless only in the short-term. Medium and long-term it would lead to a loss of importance for the law. Law which is not noticed, in a media-driven society becomes irrelevant over time.72 A function of performance which has been known about for a long time is that of creating a community and reinforcing it. Staged common experiences lead to common emotions which continue to work after the event and (can) provide cohesion to the community.73 People have to meet and share common experiences. Otherwise no community can grow up. Hardly any human society can therefore exist without some kind of staged events to reinforce the community, such as ceremonies, ritual and festivals. Modern examples of this are political conventions, political mass rallies74, sporting events and – to a point – theatre performances.75 Quite often traditions are even invented to create excuses for rituals.76 The unifying function of staged events and rituals is also very important for the law. The constitution is a striking example of this. The main task of a constitution is to create unity in the State, to give the political process a form and through this to ensure continuity and stability.77 But a constitution can only do this if it is stage-managed. For example the German constitution is actually kept centre-stage: by spectacular cases in front of the Federal Constitutional Court, by breakthrough decisions in the highest court and by oft-repeated references to and calls upon the constitution in political discussions. The constitution as an argument in political speeches does therefore have an integrating function. Although these performances are not compatible enough with the rules and logic of the modern media society. The unifying function of the constitution could be much better served if it were more professionally stage-managed. To avoid any misunderstandings: we are not talking about any dramatic or pompous state production. But modern stage-management

72

Boehme-Neßler (2003), P. 128. At length on the function of rituals in creating a community Schechner (2006), P. 70 f. 74 A brief example of this would be the political rituals in the former GDR. At length on the socialist rituals in the GDR relating to the May Day holiday and their effects Kraa (1989), P. 200 ff. 75 At length on this Fischer-Lichte (2004), P. 344 ff. 76 Thoroughly on this Hobsbawm (1992), P. 1 f. 77 Similarly Hesse (1999), P. 13. 73


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is needed, to regularly reinforce the constitution and the law as the foundation of German democracy.78 Performance also serves to explain the world and provide meaning. Whoever performs always explains and interprets that part of the world which they’re putting on stage. Even if modern Western law of course is not an entity which seeks to provide meaning: the function of presentation in explaining things is also important for the law. The legal system is part of the socialising process. By helping to shape legal awareness, the law is carrying out an educative process.79 Education without any kind of explanation of the world and provision of meaning is difficult, if not impossible. The law could better fulfil its educative function if it made better use of the abilities of performance to explain the world. Also its wider remit to reduce conflict80 can be better fulfilled by the law with the help of performance. Because conflicts can only be helped out of the world long-term and durably if the parties to the conflict are convinced of the rightness of the solution to the conflict, or at the very least are accepting of it. Understanding and acceptance in turn are achieved more effectively and better with some performance. One fact really stands out quite clearly: the law must stage-manage itself more strongly in order to fulfil its functions. Otherwise, in a stage-managed society81 its importance will diminish.

5.4.2 B eing Serious and Authentic – The Performance of the Law Stage-management of the law is necessary – and it is dangerous. Because the law cannot represent just anything. It must present a serious, meaningful and authentic face. That is particularly difficult. Why? Performing on first sight seems to be the exact opposite of authenticity.82 Because performances are an artificial combination of various elements which seek to arouse a particular perception and effect on the audience. Performers therefore are often suspected of trying to manipulate their audience. If you start with this concept of performance, then the contradiction between this and authenticity – genuineness – is blatant. Because only what is genuine is authentic – and especially not things which are manipulated, simulated or stage-managed. But performances do not have to be and are not always manipulative. They can also be authentic. They are only 78

An example for a failed stage-management was the Federal Presidential election on 23 May 2009. Even though the organisational glitsches and clumsiness may have been endearing to watch – they damaged the authority of the Federal President, of the Federal Assembly and the Constitution subtly in the long-term. 79 On the educative function of the law Rehbinder (2009), P. 106. 80 On the conflict reduction function of the law at length Rehbinder (2009), P. 97 ff. inter alia. 81 This phrase coined by Willems (1998), P. 23. 82 Fischer-Lichte (2004), P. 329, points out that the twin concepts of authenticity versus presentation are therefore often presented as a dichotomy.

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manipulative if they successfully pretend not to be stage-managed.83 As long as performances do not pretend to represent true-to-life reality they are not necessarily manipulative. If they are recognised as being performances, they are one way of expressing things with specific options. They can make ideas, concepts and things visible which by their very nature are not concrete.84 If you start from this valueneutral concept of stage-management, then performances can be authentic. Authenticity is even today an important goal of performances. Humanity in the meantime has millennia-long experience of performances of authenticity. Already in Ancient Egypt, religious and political authenticity was stage-managed.85 And of course in many modern political presentations authenticity is also a key factor.86 Because only authenticity leads to credibility, trust and votes. Commercial advertising is a particularly clear example of how – though not always – authenticity, competence and credibility is stage-managed.87 Whether a performance communicates authenticity, seriousness and importance does not only depend on its content, but also strongly on the presentational elements.88 A well-known example of this are news programmes on television.89 Through the targeted use of various production techniques the – serious – news programmes on television manage to appear authentic and serious. This is the more remarkable as television is fundamentally a mass medium which is not generally taken seriously.90 What are the production techniques which the law could make use of – and already does use – to exude importance, authenticity and seriousness? Of particular importance for a performance is the context within which it takes place – the framing.91 The concept of framing comes from cognitive psychology.92 Frames are patterns of interpretation which help to organise new events and

83

Similarly Fischer-Lichte (2004), P. 331, who fundamentally identifies presentations by the criterion of whether they are perceived as being stage-managed or not. 84 Thus Iser (1991), P. 504. 85 At length on this Roeder (2007), P. 300 ff. 86 Thoroughly on the stage-management of authenticity in politics on television Meyer/Ontrup/ Schicha (2007), P. 183 ff. 87 At length on this Willems (2007), P. 215 ff. with examples. 88 Generally on the basic rules of stage-management Messaris (1994), P. 138 ff. inter alia, with many examples. 89 At length on this Hickethier/Bleicher (1998), P. 371 ff. Thoroughly on the importance of presentation for the effect of radio news Berry (1988), P. 166 ff. 90 Television has been dominated from the start by the need to entertain. At length on this see below Chap. 7.1. 91 Wulf (2003), P. 41 inter alia. On the importance of framing – setting the context – using the example of television news Hickethier/Bleicher (1998), P. 371 f. Messaris (1994), P. 138 f., stresses that the effect of a presentation depends on what genre it is seen as. The genre is determined not least by the context. 92 Scheufele (2001), P. 144 f. inter alia uncovers the roots of the concept of framing in various disciplines.


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information and to process them efficiently.93 Their functions are mainly the selection of information and the reduction of complexity.94 The more complex the content to be presented or stage-managed, the more necessary effective frames become. Certain aspects of a performance are brought to the forefront by the frame, others are pushed back and ignored. Framing therefore strongly affects the organisation of the performance, how it is understood and evaluated. But here precisely is the major potential for manipulation of frames. Like all other means of communication frames therefore have very positive features but simultaneously also problematic aspects which need to be viewed critically.95 The original example of framing is the space of the theatre. Because quite literally the framework of a performance is determined by the space in which it is viewed.96 But framing does not just imply physical space. In particular modern media have developed a whole range of different frames which are not spatial but visual and compositional.97 What can the law learn from these insights from cognitive psychology and communication sciences? The framework within which the law is generally presented does correspond to the goal of presenting the legal system as a powerful, objective part of society which guarantees continuity. A glance at the results of political architecture98 shows: the locations where the law is created, spoken, managed and implemented over the centuries have been buildings and places whose particular importance has been underlined architecturally.99 That is made clear by parliamentary architecture100: the law is created in buildings which symbolise the state’s claim to 93 Scheufele (2001), P. 144 inter alia. A similar but more extensive concept – priming – is used in media effects research. Mass media can strengthen or weaken topics depending on how they pick them up and present them. This also influences the agenda of the general public. At length on the priming-effect Jäckel (2005), P. 175 with proof from empirical studies which document this effect. 94 Müller (2003), P. 175 inter alia. 95 Thus very relevantly also Müller (2003), P. 176 inter alia. 96 In theatre studies that has been known – of course – for a long time. Over time they have developed a sophisticated phenomenology of theatrical space. At length on this Balme (2001), P. 134 ff. 97 At length on this Scheufele (2001), P. 150 inter alia, with examples. 98 On the history and meaning of political architecture thoroughly Nerdinger (1992), P. 14 ff. inter alia, with many examples. On the iconology of architecture itself Bandmann (1984), P. 29 ff. 99 Shown with examples by Carlen (2002a), P. 134 ff., with an overview of legal locations in Rome. Examples from the legal architecture of England, which Sugarman (2004), P. 171 ff., describes, also underline this. Generally on the importance of architecture for the communication and stage-management of (claims to) power Sugarman (2004), P. 167 ff. V. Beyme (1998), P. 239, stresses that already very early architecture was used to political and social effect. On the psychological roots of (power) architecture Sudjic (2006), P. 7 ff.; 355 ff. 100 On parliamentary architecture at length v. Beyme (1998), P. 351 ff. On this using the example of the British Houses of Parliament Sugarman (2004), P. 186 ff. inter alia. Parliaments and Parliament buildings – as Sudjic (2006), P. 161, 199 ff. stresses using the example of the British and Scottish Parliament buildings – quite often have become symbols for the identity of the nation. The Reichstag building in Berlin with the glass dome designed by Norman Foster can be seen in the same light. So at least Sudjic (2006), P. 354. Also Cullen (1999), P. 291, stresses the symbolic content of the dome, but leaves it open what the dome is a symbol of.

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power101 – in democracies also the power of the people and transparency as well.102 A good example of this is the Reichstag building in Berlin. Its dome symbolises – like all domes – power and greatness. But because it is made of glass, it does not appear massive, but light and transparent: the symbol of a modern, transparent democracy, open to its citizens.103 Another example of framing by architecture: quite often churches – also buildings which express seriousness and power – have also been important locations for the law – not only church law but also secular law.104 Justice is another impressive example of how the law is presented in a serious setting which signals authenticity. Court buildings where justice is physically practised lay claim – with varying strength – to power and importance, but also to objectivity and authenticity.105 This is true in a similar way for both the palaces of justice of the nineteenth century106 and the modern, simpler, purpose-built buildings in which courts are found today.107 Modern court buildings are more strongly aligned 101

On the political architecture of power, thoroughly Nerdinger (1992), P. 14 ff. inter alia. On political architecture since the Middle Ages Kündiger (2001), P. 32 ff. Democracies are, in the view of Beymes (1992), P. 45, fairly modest in their architectural self-representations. An example of this is the government architecture in Bonn, which Klotz (1984), P. 399 ff., analyses. But this rule does not apply across the board. The early democracy in Athens used architecture deliberately and on a grand scale to cancel out its internal fragility using symbols of powerful solidity. On this fascinating viewpoint Hölscher (2003), P. 35 ff. inter alia, with many examples. 102 On architecture in democracy using the example of classical Athens Hölscher (2003), P. 32 ff. inter alia. Thoroughly on the visualisation of democratic principles in Parliament buildings v. Beyme (1992), P. 33 ff. V. Beyme (1998), P. 353 ff., shows and analyses from a comparative perspective, which different paths democracies have taken in this respect. On Parliamentary buildings in the 19th century Kündiger (2001), P. 50 ff. 103 In detail on the history of the new Reichstag dome and the controversial public discussion of it Cullen (1999), P. 291 ff. inter alia. 104 An example of this in recent times is the Frankfurt Paulskirche, which has become a symbol of the Republic and democracy. In detail on this Bartetzko (1992), P. 122 ff. Churches in Rome are other examples of how the religiously-laden symbolism of churches was used for state purposes. On this at length Carlen (2002b), P. 146 ff. 105 At length on the interpretation of the “legal culture cast in stone” Gephart (2006), P. 241 ff. 106 On the monumental architecture of the Palaces of Justice, Klemmer et al (1993), P. 34 ff. Wesel (2001), P. 428 f. stresses, that the buildings of justice which were built in Germany at the end of the 19th century were deliberately built as palaces: the palace of justice stood alongside the palace of the king; the rule of law stood alongside the rule of power. Very critical on this v. Beyme (1998), P. 244, who describes palaces of justice as “theatrical gestures by the legal system”, which accepted the “dwarfing” of their surroundings. Similarly critical Laage (1979), P. 171 f., who describes legal buildings as “bulwarks of intimidation”. Of particular symbolic importance were the totally overscale steps of these court buildings. On this at length Gephart (2006), P. 245 ff.; Laage (1979), P. 171, who talks in this context of an “intimidating entry situation”. 107 On this Klemmer et al (1993), P. 136 ff. An impressive example for this is the plain and functional buildings on the Kirchberg in Luxembourg, where the European Court works. Although the new Palace of Justice in Bordeaux is an exception to this trend, opened in 1998 (a image can be seen at www.structurae.de/structures/data/index/cfm? id=s0009165 (Ref: 1.6.2006)). Its extravagant shell structure looks very playful for a justice building But it does symbolise almost perfectly the essential transparency of justice in a democratic constitutional state. On this Jouannais (1998), P. 9 ff.


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to the concept of democracy:108 Every citizen has fundamentally the same access to the law and to justice. How is that stage-managed? Through the explicit plainness of court architecture which lowers the barrier to access and makes entry easier. And the courtrooms themselves are plain and functional. Clever design would be the wrong setting for the seriousness of justice – and so is not found in courtrooms. A further element which shapes a performance, and whose importance can scarcely be over-estimated is colour.109 That is quite logical: as colours have – this is almost a truism – a strong impact on observers.110 Different colours achieve different effects on observers.111 This has developed phylogenetically over the history of human evolution.112 So colours are biologically effective. At the same time they have a socio-cultural aspect. In human society colours always communicate social and political statements.113 The purple of emperors and kings is a historic example. The dark blue and black of modern managers, lawyers and accountants is an equally striking example. Different colours call up different associations.114 This fact is used by the law in its performances: in courtrooms it is dark, muted colours that dominate. Even the significant red colour of the German Constitutional Court judges is not colourful and lively; their muted red suggests – as well as the normal black of other judges’ robes – seriousness and power.115 This creates an impression of seriousness in the observer. Colourful, lively colours with conspicuous patterns are misplaced if you want to communicate seriousness and authenticity. 108

Referred to by Sugarman (2004), P. 197. On this Rager et al (1998), P. 495. On the importance of colour also from an empirical linguistic viewpoint Berlin/Kay (1999), P. 1 ff. Obviously colour is also an important means of image presentation. On this Arnheim (2000), P. 340 ff. Therefore it is not surprising that colours also play a major role in politics. At length on this Schüler (2006), P. 31 ff. Thoroughly on the importance of colours in the presentation of information Tufte (1990), P. 81 ff. with striking examples. 110 At length on this Arnheim (2000), P. 365 ff.; Barry (1997), P. 126 ff. inter alia; Lester (2003), P. 35; Kroeber-Riel (1996), P. 102. On colour as language at length Albrecht (1974) pass. 111 Barry (1997), P. 130 inter alia. Kroeber-Riel (1996), P. 102 inter alia. Informative on this are experiments which look at the links between colour and aggression. On this Barry (1997), P. 132 f. inter alia 112 On the interaction between evolutionary development and colour recognition with the wellresearched example of colour-blindness Barry (1997), P. 129 ff. At length on the development of basic colours during evolution Berlin/Kay (1999), P. 14 ff., on the basis of voluminous empirical material. Also Arnheim (2000), P. 326 f., who supports this idea with arguments from literary research and anthropology. 113 On this Lester (2003), P. 34 with examples from various societies. Schüler (2006), P. 33, traces the changing political significance of different colours. 114 Kroeber-Riel (1996), P. 143 ff. 115 Dark red has stood for power for centuries. On this Schüler (2006), P. 32. In the 19th century the symbolic meaning of the colour red shifted. Now it is – as Schüler stresses (2006), P. 33, – the central symbol of social uprising and freedom movements. Whether this is the tradition that the German Constitutional Court is referring to, is doubtful. If you take colours seriously as symbols, another parallel is much more disturbing: the judges of the Nazi People’s Courts also wore red robes. Given this the choice of colour for the robes of the constitutional judges is very poor. 109

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An equally important part of performance is language.116 The fact that television news appears serious and authentic is in no small part to due its language. The transfer of information is marked by sober language with little imagery, which is intended to objectify and de-emotionalise the subject matter.117 This can also be seen in lawyer’s speech: it is determinedly sober and factual. This has disadvantages, but also a priceless advantage.118 Because the language per se appears factual, serious and authentic. Puns, word-plays and familiarity are not found in legal speech. As linguistic tools of performance they would harm the aim of the law to present itself as serious and authentic. There are a whole range of further performance practices which the law can use to present itself in a way befitting its function in society. Although the law does fundamentally face a difficult tightrope walk. On the one hand it must present itself in such a way that is even noticed in the modern media-dominated society. So it has to – at least to some extent, and carefully – adopt the logic of the mass media. Otherwise there is the risk that it is not noticed and becomes irrelevant. On the other hand, the logic of the mass media is strongly influenced by the entertainment paradigm.119 If the law adopts this logic itself, that is just as dangerous: the law may well be noticed – but no longer as an objective, sensible institution. The law – this is a given – has to stage-manage itself, but in doing so must use the various performance methods carefully and strictly focused on its goals. Examples of this can be found in the practice of law. Alongside the justice buildings mentioned above and legal language, the clear and diverse legal symbols and the controlled drama of the courtroom, controlled by rules of procedure120 are clear evidence of this.

5.4.3 Rituals – The Condensing of Performance Performances can – like other forms of social behaviour – be condensed. Above all by the use of symbols, by social standardisation of behaviour and by regular repetition121, performance creates rituals, which have even greater impact.122 What is a 116

Referred to by Rager et al (1998), P. 496 ff. At length on legal language from a judicial point of view Neumann (1992), P. 110 ff. 117 Hickethier/Bleicher (1998), P. 373. On television news has to use more images. This has ambiguous results for its effect on viewers. On this Berry (1988), P. 166 ff. inter alia 118 Neumann (1992), P. 118 ff., considers the legal professional language as indispensable. 119 On this see below Chap. 7.1. 120 That greater effect is achieved using dramatisation is a long-established fact in art. On this Shusterman (2001), P. 126 ff. 121 Regular repetition is an important part of rituals which creates their special effect. On the neuro-biological basis for this fact, at length Lex (1979), P. 122 ff. inter alia. 122 On the concept of rituals Kertzer (2006), P. 371. On the creation of rituals through enrichment at length Kertzer (2006), P. 373 ff. inter alia.


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ritual?123 One definition is: rituals are socially standardised, concentrated forms of social behaviour with strong collective communicative and emotional effects.124 Rituals are very powerful instruments125 for imparting meaning, for integration, for settlement of conflicts and for controlling behaviour. Rituals have a whole range of special effects. They included the function of attributing meaning: rituals help to organise the chaos of the world and give the world meaning.126 At the least they interpret the world as organised and meaningful.127 They are a means of building theories: with their help, the events and apparitions in the environment can be understood and structured.128 In this way rituals also help the individual to survive cognitively in a complex, chaotic, threatening world.129 It was particularly the traditional, religious rituals which communicated knowledge about the meaning of life and the fate of mankind.130 Long before the discovery of writing and the mass media, reality was structured and explained – by mythological images and by rituals.131 But that does not define the whole importance of rituals. Rituals are also needed – and this is their integration function – to hold social communities together.132 They

123 Platvoet (2006), P. 173 ff. inter alia outlines the different current definitions of rituals. An overview of the sociologically and anthropologically inspired theories of rituals from Wesel (2004), P. 89 ff. 124 On this definition, which can be seen as the smallest common denominator between different sciences, at length Platvoet (2006), P. 174 ff. inter alia. Similarly also Kertzer (2006), P. 373. Michaels (2001), P. 27 ff., collects “ritual building blocks”, by bringing together bits from various theories of rituals, without supporting any one theory outright and totally. Oppitz (2001), P. 73 ff., works similarly who constructs a “building kit for rituals” from the individual parts. Given the various theories each with their own strengths and weaknesses this seems to be a promising approach. 125 Stressed by Kertzer (2006), P. 374 inter alia. 126 Kertzer (2006), P. 372. This function is also stressed heavily by Durkheim (1994), P. 67, 467. Assmann (2000), P. 89, underlines the importance of rituals for the creation of “cultural consistency” of cultural memories of a society. A modern example given by Soeffner (1995), P. 94 ff. is the punk scene: the revision of the everyday by a charismatic group using rituals 127 Smith (2006), P. 221 adds an important thought to the theory of rituals: rituals cannot really organise the chaos of the world. But they do help people to develop a concept of meaningful order and let them see the – in reality chaotic world – as organised and meaningful. 128 Burns/Laughlin (1979), P. 252 f. inter alia 129 Rituals are also a means of reducing the complexity of the environment, to protect the human cognitive system from being over-stretched and collapsing. At length on the neuro-biological implications of this aspect of the function of applying sense see McManus (1979), P. 227 ff. 130 Goethals (2006), P. 314. Seminal and at length on the connection between religion and ritual Durkheim (1994) pass. 131 Goethals (2006), P. 314. On the importance of ritual repetition for cultural memory particularly in oral societies at length Assmann (2000), P. 143. Durkheim (1994), P. 498 ff., talks in this context about “rites of presentation or of thought”. 132 Gabriel (1994), P. 7 inter alia. How rituals can hold groups together is shown by Soeffner (1995), P. 76 ff. inter alia at length and with the striking example of the “punks”. Soeffner (1995), P. 99, coins the phrase for this of “community-oriented ritual”.

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manage to merge individual people into communities and groups.133 Because rituals create an emotional closeness in spite of social distance.134 A modern example of this is a football game: among the spectators the normal social hierarchies are suspended; during the game the common attitude of the fans is what matters.135 In particular, the released and synchronised136 emotions of rituals create a close connection between individual and society.137 They are used in order to bridge or hide social contradictions, to remove their socially divisive nature.138 Therefore rituals play a major role in social, temporal or spatial139 transitions, which are extremely risky for both individuals and societies equally.140 Not least because of their integration function, rituals are particularly important in pluralistic, highly fragmented societies – and are very frequently found there.141 One of the most important political rituals in democratic societies are elections and election campaigns.142 Elections and election campaigns are not just the technical means by which the sovereignty of the people is exercised in practice. They also have – way beyond this – a ritual content: all the voters reassure themselves through participation in the act of voting, that they are part of a democracy and can actually 133 Platvoet (2006), P. 182 f. Seminally on the mechanism of how rites can facilitate integration van Gennep (1909/2005), P. 21 f., who distinguishes different stages of separation and integration. 134 Similarly already Durkheim (1994), P. 470. Particularly striking examples of this from Ancient Rome are given by Flaig (2004), P. 20 ff. A modern example is the football game: among the spectators the normal social hierarchies are suspended; during the game the common attitude of the fans is what matters. 135 On this Bromberger (2006), P. 295. 136 Lex (1979), P. 120, 144 inter alia, stresses that the aim of rituals is to synchronise uncoordinated biological and social rhythms. Because emotional asynchronicity creates tension in human groups and societies. Typical at least for trance rituals are therefore the repetitive dominating rhythms. On this Lex (1979), P. 122 ff. 137 Similarly Kertzer (2006), P. 372 inter alia. Informative on this are the many different rituals in the Ancient Roman Republic, by which deeply-rooted differences and divisions in society were covered up for a long time. At length on this Linke (2006), P. 34 ff. inter alia. Modern examples of this are football games and other mass events such as demonstrations, festivals or concerts. At length on this Bromberger (2006), P. 293 ff. Soeffner (1995), P. 99, talks in this context about “communally-oriented ritualism”“. Lex (1979), P. 122 ff. inter alia, describes the neuro-biological processes, which underlie this effect of rituals. 138 On this Burns/Laughlin (1979), P. 266 f. inter alia. Social tensions can particularly arise between locals and foreigners, outsiders and residents. Then rituals become particularly important. At length on the rituals which take place between individuals and groups who meet up and which moderate the necessary transitions, van Gennep (1909/2005), P. 34 ff. On the also dangerous transitions from one social status to another at length Turner (1969/2005), P. 159 ff. 139 Seminal on the importance of rituals in spatial transitions such as frontiers, gateways and doors van Gennep (1909/2005), P. 24 ff. 140 At length on this van Gennep (1909/2005), P. 13 ff., who coined the phrase of rituals of transition for these, and Burns/Laughlin (1979), P. 275 ff. Turner (1969/2005), P. 95 ff., 159 ff., describes a plethora of rituals on transition from one social status to another. 141 Platvoet (2006), P. 183 f. 142 Kertzer (1988), P. 11


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exercise popular power.143 The act of voting takes place at a point of transition – moving from one legislature to the next, from one parliament to the next, from one government to the next. Another part of the integrative function of rituals is the fact that they are used (or can be) to resolve or defuse conflicts.144 Through rituals, conflicts and differences of interest between parties are taken out of their concrete, quarrel-infected context and moved up to a higher level, and so removed.145 Through its ritualisation, the conflict becomes an object of universal and so more neutral controversy.146 Feelings of enmity are channelled and options for reconciliation are opened up.147 Publicly presented rituals can create satisfaction and so have a peace-making effect. This can be seen particularly strikingly in the Middle Ages: there were a whole range of elaborately rituals (of submission) used to end conflicts performed in full public view.148 Earlier research into rituals, which examined ritual behaviour particularly within integrated groups, is increasingly expanding its horizons: the importance of rituals in fixing the boundaries and/or integrating different groups within a society is becoming ever more prominent in its scope.149 This can be seen from examples in modern societies. Politicians who represent different groups and interests often meet each other in a ritualised way, to demonstrate boundaries and representation of interests, but also to show commonalities and ways to find compromises. Meetings of politicians with a highly ritual content – and low actual results – can be found at national level as well as in international politics.150 What is interesting here is the inherent dynamics which political rituals can develop. Rituals make it possible, to create unity and solidarity, without having a factual consensus.151 The UN, for example, would not be able to function without the consensus-generating effect of rituals.152

143

At length on elections and election campaigns as ritual stage-management of the “democratic myth” Dörner (2002), P. 16 ff. inter alia. Soeffner/Tänzler (2002), P. 93, describe elections in this context correctly as “rituals of self-affirmation”. 144 On this using the example of segmented societies Wesel (2001), P. 39 f.; Wesel (1985), P. 326 inter alia. Roberts (1981), P. 61 ff. inter alia, describes further examples in pre-state societies, but is basically sceptical about the effectiveness of rituals in resolving conflicts. 145 Wesel (1985), P. 326. 146 Quite correctly Wesel (1985), P. 326, comments, however, that the ritual often also distracts from the actual fight or conflict. 147 Burns/Laughlin (1979), P. 250 inter alia. 148 At length on this Althoff (2003), P. 255 ff. and Althoff (1997), P. 99 ff., each time with multiple examples. 149 On this Platvoet (2006), P. 183 inter alia. 150 Kertzer (1988), P. 32 f. 151 Kertzer (1988), P. 67 f. 152 At length on the importance of consensus-rituals in the everyday procedure at the UN Wesel (2004), P. 176 ff., 239 ff. inter alia.

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But rituals are not necessarily and exclusively integrative. They can also work to disintegrate, even explode.153 And again politics can provide examples of this, up to and including recent times. So rituals are a powerful instrument, which can be used for integration, or equally for disintegration. Rituals can also cement the status quo or be drivers for political and social change.154 Closely linked to this is the possibility of exercising social control through rituals.155 Through them, influence can be exercised on people’s perceptions and orientations.156 Rituals are therefore very well-suited ways of steering people’s behaviour, if not to manipulate it.157 In the Middle Ages rituals were an important instrument used by rulers as a way of exercising power.158 This property of rituals is naturally of importance for the parts of a given society which exercise control: particularly the law and politics.159 This potential ability of rituals is often used; but it is also – if we look at history – often abused.160 Its validity as a social technique of oppression comes from the fact that it can short-circuit thoughtful and discursive communication without any visible use of force.161 Not least, rituals are able to suppress critical opinions and destroy opponents to a regime.162 They are therefore a proven means of supporting totalitarian and authoritarian societies.163

153 Platvoet (2006), P. 184, stresses this characteristic that was often overlooked by earlier researchers. 154 Burns/Laughlin (1979), P. 277. At length on the rituals of the revolution Kertzer (1988), P. 152 ff. 155 On social control using rituals Burns/Laughlin (1979), P. 264 ff. inter alia. On ruling using rituals using the example of the 12/13th century Staufer rulers Althoff (2003), P. 136 ff. 156 Burns/Laughlin (1979), P. 257 ff., 271 ff. inter alia. 157 Winn (2006), P. 460, points out that Confucius was one of the first to stress the role of rituals in the managing of a society. On controlling behaviour through rituals and symbols also Sarcinelli (1987), P. 59 f. On the neuro-biological basis for this ability to control at length Lex (1979), P. 134 ff. inter alia. 158 Althoff (2003), P. 200, who in ibid, P. 32 ff., traces the historical development of rituals as an instrument of power since the early Middle Ages. 159 At length on rituals in politics Goethals (2006), P. 312 ff. inter alia; Kertzer (2006), P. 370 ff. inter alia. Even earlier and seminal Kertzer (1988), P. 77 ff. inter alia. The use of rituals in politics is not a new, but a very old phenomenon. This is shown in detail by Flaig (2004) pass., who in ibid, P. 181 ff., examines a “ritual grammar of institutionalised politics” in Ancient Rome. On this also Linke (2006), P. 33 ff. inter alia. The law and politics have control functions. Whether they are actually capable of controlling social developments, is extremely controversial. The system theory thinks the control of other systems through the law is impossible. Paradigmatic on this Luhmann (1985), P. 7. Complete disagreement from Schuppert (1990), P. 223 ff. inter alia, Nahamowitz (1985), P. 29 ff. inter alia, and Roßnagel (1999), P. 213 ff. inter alia and empirical counter-examples. 160 Gabriel (1994), P. 5 inter alia; Winn (2006), P. 462, who also looks at the questions, how and by what criteria rituals can be evaluated. 161 Gabriel (1994), P. 5. 162 Seminal on this Bettelheim (1980), P. 332 ff., who examines the political and psychological effects of the compulsory salute – the Heil Hitler– under the Nazi regime. On this also Winn (2006), P. 462. 163 Thus explicitly Winn (2006), P. 462.


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5.4.4 Legal Rituals – Performance and Emotion in the Law The law must create order, integrate individuals, and resolve conflicts. Those are goals which can be achieved more effectively with rituals. Therefore it is only logical that the law has been availing itself of rituals for millennia.164 We can go a step further: maybe the law as a whole arose from rituals in the first place.165 In any case the law can only partly achieve its goals without the use of rituals. Even in the early days, the law in pre-state eras and then later also in ancient societies is unimaginable without rituals.166 Particularly the Middle Ages was the Golden age of legal rituals.167 At that time, in all areas of the law, there was an almost infinite number of different legal rituals.168 Most legal acts were performed in a ritual form. The most dramatic ritual was execution.169 Since then the law has become more rational and less ritual.170 Nevertheless: even the modern law knows about – and needs – rituals.171 Since the French Revolution we talk about the ritual of legality.172 The French Revolution limited the freedom – and the capriciousness – of the judicial system and tied the courts closely to the law. Their room for manoeuvre, which existed previously, was sharply curtailed. The ideal was now the judge whose actions and decisions were predetermined by the law.173 Symbols and rituals of justice adopted this change of paradigm, reflected it back in the most varied forms and strengthened it by so doing.174 164

If the law presents rituals, then it is getting – at least as far as the means are concerned – close to becoming theatre. Therefore it is hardly surprising that parallels can be drawn between theatre and courts. At length on this Todd (2003), P. 87 ff.; Schwarte (2003), P. 94 ff. But it is highly controversial what this relationship of ritual and theatre basically looks like. On this long debate in ethnology and theatre studies Balme (2001), P. 170 ff. inter alia. 165 So Fögen (2001), P. 150. Similarly, although more cautiously Rehfeldt (1956), P. 45. But not without dissent. This argument also exists in the study of religions, that rituals are self-contained and of no importance to other areas of society. On the debate about and as a critic of the meaninglessness theory Michaels (2001), P. 40 ff. 166 Similarly Ebel (1975), P. 16 f. Denied by Rehfeldt (1956), P. 47. 167 At length on the meaning of rituals in the Middle Ages Althoff (2001), P. 51 ff inter alia, with concrete examples. At length on the reasons why the importance of legal rituals in German law has reduced significantly since the late Middle Ages, Ebel (1975), P. 22 ff. 168 Sellert (1997), P. 34 inter alia. Informative examples from English law in the Middle Ages are given by Watkin (2004), P. 154 ff. inter alia. They can partly be traced back to the influences of Roman law. 169 At length on this van Dülmen (1995), P. 161 ff. inter alia. Todd (2003), P. 69 ff., describes and analyses Plato’s execution as a paradigm for Ancient Greek law. This not least underscores the importance of rituals for (early) law. 170 At length on the process of rationalisation of the law since the Middle Ages Sellert (1997), P. 37 ff. inter alia. 171 Winn (2006), P. 447, stresses correctly that all legal systems also contain ritual elements. 172 Halpérin (2004), P. 44. 173 Very pointedly Halpérin (2004), P. 46, who talks about the “concept of the judge as subsumed automaton”. 174 Halpérin (2004), P. 46 f., gives some individual examples for this.

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The binding nature of the constitution and the law not only on justice, but on the other powers of the state are, to this day, one of the foundations of the modern state. Therefore it is only logical that rituals of legality can still be found in modern legal systems. Article 82 para. 1 of the German constitution is an example of this. Laws are not published just “anywhere”. From the point of view of bureaucratic efficiency that would probably be good enough. Instead, laws are endorsed by the Federal President – the Head of State, and formally promulgated in the Federal Legal Gazette (Bundesgesetzblatt) – a special publication which exists for this purpose. This ritual process underlines the special importance of laws. Rituals exist in modern law at much more banal levels. Legal forms175 and judicial documents are used as important elements in rituals. The signing of a notarised sale of a piece of land for example, has a strongly ritual character. The same is true for handing over a permanent contract to a civil servant. A marriage is only valid in law when the right people make the right declarations at the same time in the right place.176 Even a civil wedding in front of register office officials is not just a legal act, but also a ritual.177 Another example: the legal documents which are required to found a share company are not actually needed from a legal point of view. They are only comprehensible if you take their ritual nature into account.178 The ritual character of the law really leaps out at you when you look more closely at legal processes. This is shown very clearly by cases in court, which are heavily coloured by ritual communication.179 Even the principle of oral presentation has a ritual character.180 The decisive part of the rituals of the trial are completed orally – and quite often standing up181: the reading of the accusations, the questioning of the accused, hearing the witnesses, the pleadings from the defence and the prosecution representatives, the last word for the accused and the announcement of the judgement.182 From a purely lego-technical functional viewpoint none of it is necessary. The sequence of an action could also be clarified if large parts of 175

On the importance of forms for legal rituals Winn (2006), P. 453 f. Thus section 1311 German Civil Code requires that the declarations of both spouses must be made in person and with both present at the same time, and so makes the legal act into a ritual. Seminal on marriage rituals van Gennep (1909/2005), P. 114 ff. 177 Of course this is absolutely true of a church wedding. 178 Similarly already Winn (2006), P. 455. 179 An early court process that was highly ritualised was the so-called legis actiones in Roman law. At length on this Fögen (2001) P. 149, 153 ff. inter alia. Sellert (1997), P. 35, stresses that also the court processes in the Middle Ages were heavily ritualised. Thoroughly on the court case from the point of view of theories of rituals Wolf (2003), P. 31 ff. inter alia; Gephart (2006), P. 255 ff. inter alia. 180 On this Halpérin (2004), P. 48. 181 For example the reading out of the charges, the pleading and the announcement of the judgement. On the symbolic effect and the ritual character, that standing (up) has in a courtroom see Legnaro/Aengenheister (1999), P. 18. 182 On the ritual character of this case processing in detail Wulf (2003), P. 36 ff. inter alia. On the ritual content of the pronouncement of the judgement Legnaro/Aengenheister (1999), P. 110 f. 176


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the process were carried out in writing. And it is really not in the least necessary to stand up for certain parts of the process. The language of the case is itself heavily marked by ritualised phrases.183 What is noticeable is a certain churchlike aspect to the court’s language, which has a ritual function.184 Even today courts do not just decide simply, in secular language, instead they rule and judge. Their judgements are not announced, they are formally proclaimed.185 It is only a slight exaggeration to talk about a Court liturgy.186 Administrative procedures nowadays are more strictly functional than court cases. This was not always the case. A glance back in the history of administrations shows that for a long time administrations were stage-managed like myths; their activities were celebrated like rituals. That is no longer true. But there are still traces of rituals in administrative processes. An administrative process has first and foremost a functional goal: it should reach a decision which is compatible with the law and do this as efficiently as possible. But that is not the end of its importance. A decision gains a greater legitimacy if it is preceded by a lengthy process, which enables broad participation and takes account of contradictory interests. This legitimacy through procedure has a ritual core.187 Because an equally “good” factual result could be achieved in many cases by a shorter, less complicated process.188 So wherever you look in the law, rituals can be found. What is the point of them? The point of legal rituals varies: at a secular and concrete level they have a warning function189 or a function of witnessing or providing proof.190 That is roughly the concrete background of notarised documentation or handing out certificates. But that is not all that they mean. Rituals develop psychological and social effects which go way beyond their practical contents.191 Legal rituals mobilise emotions, which give the legal documents greater effect.192 This particular effect of rituals is what gives the law in general and the court proceedings in particular, importance, credibility, trustworthiness and durability.193 An example of this is the oath. Thanks to

183

On this using the example of court cases from the 16th century Babendererde (2004), P. 56 ff. inter alia. On linguistic issues in modern trials Ellscheid (1992), P. 276 ff. 184 Overall there are many parallels which can be drawn between religious and legal rituals. At length on this Gephart (2006), P. 255; Winn (2006), P. 449. 185 On this Legnaro/Aengenheister (1999), P. 110 f. 186 Schwarte (2003), P. 120. 187 Luhmann (1969), P. 36, first drew attention to the legitimising function of procedures. 188 Informative on this Luhmann (1969), P. 211 ff., describes the complexity and the effort and cost involved in an administrative procedure. One indication that in practice we suffer from very sophisticated procedural processes is that discussions about speeding up and simplifying administrative procedures keep reigniting. 189 On this Winn (2006), P. 456. 190 On this Sellert (1997), P. 36; Winn (2006), P. 457 f. 191 Similarly Sellert (1997), P. 36 f. 192 Kertzer (2006), P. 384, stresses correctly the function of rituals in stirring up emotions and strengthening effects. 193 Similarly Kertzer (2006), P. 372 and Fögen (2001), P. 150.

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the formal statement and the sacred speech of the formula of the oath strong feelings of commitment are developed.194 As important – even indispensable – as rituals are for the law: they are not unproblematic. Rituals are highly emotional, but the law should manifest itself with as little emotion as possible and ignore emotions.195 There is an important task here for legal rituals. They should bring emotions into the trial, but only a limited dose and heavily controlled. One clear indication is that court proceedings are usually suspended if the ritualised communication is threatened by too strong emotions. An example: the senior judge suspends proceedings if the audience voices too strong feelings. Why are emotions built into the legal systems at all? After all they come with considerable risks, at least from the point of view of the law that wants to take sensible, objective and precisely unemotional decisions. The limited emotion that the law permits is the attempt to channel and control what is unavoidable: if there have to be emotions, then they should be limited and controlled legally. That is probably the logic behind the legal rituals. Just as important is a second reason: the emotional charge – controlled and limited – in legal processes and procedures increases the effectiveness of the law. That experience is millennia old, and the law has always come back to it intuitively.196 Through the controlled emotions of rituals the law can better fulfil some important functions: organise, integrate and manage. Further examples of legal rituals can also be found by moving outside the courtroom. In international politics and in diplomacy there are for example many obvious rituals.197 From these often arise standards of international law198 or codified international standards. The protocol for state visits for example is extremely highly ritualised.199 That is similarly true for diplomatic law. Why is that the case? There are certainly historical reasons. Traditional ritualised ways of behaving between states have – as in the case of diplomatic law – been codified into international law. There may in fact be another, deeper, politico-psychological reason: the control of emotions through rituals. Political relations between states are just as important as they are complicated and sensitive. At the same time they are not always characterised by sober common sense. Quite often they are coloured or shaped by emotions. Then it becomes important to control these and still maintain relations. That is made easier or possible by rituals which therefore often serve to represent or demonstrate trust.200 194

Gephart (1993), P. 409 f. inter alia. The importance which the oath has/had, is also stressed in sections 59 of the Criminal Proceedings Act, and 153 ff. Criminal Legal Code. That an oath can have additional effects to “bring the truth to the surface” is still stated by the Federal Criminal Court 8, 301 ff. an. 195 On the problem of emotions in the law see above Chap. 4.7. 196 The major importance of emotions for human beings, their awareness and their behaviour is explained by Roth (2003), P. 285 ff. inter alia. 197 Althoff (2001), P. 58, who in this area even talks about a “Renaissance of ritual”. 198 Carducci (2006), P. 250 draws attention to rituals as a basis for international common law. 199 Carducci (2006), P. 250. 200 An example is given by Althoff (2001), P. 59.

5.5 On the Dangers of Performances

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5.5 On the Dangers of Performances Stage-managed law can develop a powerful impact in a visual media society. At the same time there is a weakness which cannot be ignored. Stage-managed law always runs the risk of degenerating into simple placebo-law. What does this mean? In political science a growing tendency has been noticed towards placebo politics.201 Placebo politics – or spin politics – is to be found when political action is performed and acted out for public consumption, but in reality does not actually happen. Instead of acting politically, political action is mimicked by the use of symbols which play powerfully with the public.202 A striking example: in front of the TV-cameras the then US-President Reagan sat at a school desk and talked with teachers and pupils. He performed a show, for public consumption, of his deep interest in the American education system. In reality at the same time the American education budget was drastically cut. Political science has noticed an irritating increase in this kind of politics.203 One important reason – not the only one – lies in the discrepancy between political possibilities and the expectations they find themselves facing. In today’s modern, complex and globally linked society the real room for political intervention is getting ever smaller. At the same time the expectations on politics and its ability to control things is constantly growing. To resolve this contradiction, politicians tend to use symbolic political action to at least pretend to the voters they are doing something which is actually not possible.204 Can a similar situation be diagnosed for the law? In fact, yes, the law does appear to be subject to a similar discrepancy. The expectations of the law are high and they are on the whole – if appearances are not deceptive – increasing. A driver for the legalisation which can be observed in modern states is the expectation in society that the law should control and steer as much as possible. But can the law hope to fulfil such expectations? We can argue about whether the law is even able to guide human action and social developments. System theory fundamentally doubts whether the law can steer other areas of society at all.205 Even if one does not want to support the full radical extent of this theory: 201 Seminal on this Edelman (1964). At length on this Sarcinelli (1987), P. 54 ff. inter alia using the example of election campaign communication. Meyer/Kampmann (1998), P. 84, give two classic examples for this kind of politics. 202 Other examples from the field of environmental policies and environmental law are detailed by Newig (2003), P. 149 ff inter alia and Schink (2000), P. 102 ff. 203 Meyer/Kampmann (1998), P. 85. 204 On this and on other reasons for this development Meyer/Kampmann (1998), P. 85 f. 205 Paradigmatically on this see Luhmann (1985), P. 7. Teubner (1989), P. 96, does not go so far but still thinks an indirect contextual steering by the law is possible. Thoroughly different Nahamowitz (1985), P. 29 ff. inter alia, who describes empirical counter-examples, which do not, however, always quite convince. Possibly the truth is in the middle: the law can induce action and suggest rough directions. But social reality cannot be determined by the law down to the last detail. For that it is just too complex. This direction also taken by Teubner/Willke (1984), P. 28, 31 and – mainly relating to the control of technology by the law – Roßnagel (1993), P. 27 f. inter alia.

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in this digitalised and globalised world the possibilities the law actually has to steer anything are tending to shrink. There is a noticeable relativisation of the law to be seen at work in the digitalised world.206 That can have fatal consequences. Legal policy and the law become tempted to resolve this contradiction between the limited possibilities and the unlimited expectations by using stage-managed, symbolic law. Placebo law, which helps to calm public expectations, takes the place of – for whatever reason – impossible to apply, binding law. Visualified law is easy to misuse to this end. Because well-presented images are strong symbols which can pretend to be legal action and fend off critical inquiries.

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At length on this theory Boehme-Neßler (2008), P. 635 ff.

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Müller, Friedrich (2003): Demokratie zwischen Staatsrecht und Weltrecht. Berlin. Müller, Marion G. (2003): Grundlagen der visuellen Kommunikation. Konstanz Müller-Doohm, Stefan/Neumann-Braun, Klaus (1995): Kulturinszenierungen. Einleitende Betrachtungen über die Medien kultureller Sinnvermittlung, in: Stefan Müller-Doohm/Klaus Neumann-Braun (Ed.): Kulturinszenierungen. Frankfurt am Main, P. 9 ff. Nahamowitz, Peter (1985): “Reflexives Recht”: Das unmögliche Ideal eines post-interventionistischen Steuerungskonzepts, in: Zeitschrift für Rechtssoziologie, P. 29 ff. Nerdinger, Winfried (1992): Politische Architektur. Betrachtungen zu einem problematischen Begriff, in: Ingeborg Flagge/Wolfgang Jean Stock (Ed.): Architektur und Demokratie. Stuttgart, P. 10 ff. Neumann, Ulfried (1992): Juristische Fachsprache und Umgangssprache, in: Günther Grewendorf (Ed.): Rechtskultur als Sprachkultur. Zur forensischen Funktion der Sprachanalyse. Frankfurt am Main, P. 110 ff. Newig, Jens (2003): Symbolische Umweltgesetzgebung. Rechtssoziologische Untersuchungen am Beispiel des Ozongesetzes, des Kreislaufwirtschafts- und Abfallgesetzes sowie der Großfeuerungsanlagenverordnung. Berlin. Oppitz, Michael (2001): Montageplan von Ritualen, in: Corinna Caduff/Joanna Pfaff-Czarnecka (Ed.): Rituale heute. Theorien - Kontroversen - Entwürfe. 2nd Edition Berlin. Pasolini, Pier Paolo (1971): Die Sprache des Films, in: Friedrich Knilli (Ed.): Semiotik des Films. Mit Analysen kommerzieller Pornos und revolutionärer Agitationsfilme. Munich, P. 38 ff. Perlmutter, David D. (2003): The Internet: Big Pictures and Integrators, in: Larry Gross/John Stuart Katz/Jay Rubin (Ed.): Image Ethics in the Digital Age. Minneapolis/London, P. 3 ff. Platvoet, Jan (2006): Das Ritual in pluralistischen Gesellschaften, in: Andréa Belliger/David J. Krieger (Ed.): Ritualtheorien. 3rd Edition Wiesbaden, P. 171 ff. Postman, Neill (1999): Wir amüsieren uns zu Tode, 12. Edition Frankfurt am Main. Rager, Günther/Hartwich-Teick, Ricarda/Pfeiffer, Thomas (1998): „Schumi, du Regengott“ - Themeninszenierungen in Tageszeitungen, in: Herbert Willems/Martin Jurga (Ed.): Inszenierungsgesellschaft. Frankfurt am Main, P. 489 ff. Rehbinder, Manfred (2009): Rechtssoziologie. 6th Edition Munich. Rehfeldt, Bernhard (1956): Recht und Ritus, in: Hans Carl Nipperdey (Ed.): Das deutsche Privatrecht in der Mitte des 20. Jahrhunderts. Berlin u.a., P. 45 ff. Roberts, Simon (1981): Ordnung und Konflikt. Eine Einführung in die Rechtsethnologie. Stuttgart. Roeder, Hubert (2007): Inszenierung von Herrschaft im Alten Ägypten. Authentizität und kulturelle Identität der Besänftigung Pharaos, in: Erika Fischer-Lichte/Christian Horn/Isable Pflug/ Matthias Warstat (Ed.): Inszenierung von Authentizität. 2. Edition Tübingen Basel., P. 299 ff. Röhl, Klaus F. (2005): Rechtswissenschaft, in: Klaus Sachs-Hombach (Ed.): Bildwissenschaft. Disziplinen, Themen, Methoden. Frankfurt am Main, P. 247 ff. Röhl, Klaus F./Böhm, Anja, Böhnke, Michael/Langer, Thomas/Machura, Stefan/Marfels, Georgia/ Ulbrich, Stefan/Weiß, Matthias (2005): Das Projekt „Recht anschaulich“, in: Eric Hilgendorf (Ed.): Beiträge zur Rechtsvisualisierung. Berlin, P. 51 ff. Röhl, Klaus F./Ulbrich, Stefan (2000): Visuelle Rechtskommunikation, in: Zeitschrift für Rechtssoziologie 21, P. 355ff. Roßnagel, Alexander (1993): Rechtswissenschaftliche Technikfolgenforschung. Umrisse einer Forschungsdisziplin. Baden-Baden. Roßnagel, Alexander (1999): Rechtliche Steuerung von Infrastrukturtechnik, in: Alexander Roßnagel/Ina Rust/Daniela Manger (Ed.): Technik verantworten. Interdisziplinäre Beiträge zur Ingenieurpraxis. Berlin, P. 209 ff. Roßnagel, Alexander (2004): Neuordnung des Medienrechts - Anregungen und Möglichkeiten, in: Alexander Roßnagel (Ed.): Neuordnung des Medienrechts? Neuer rechtlicher Rahmen für eine konvergente Technik? Baden-Baden, P. 15 ff. Roßnagel, Alexander/Schroeder, Ulrik (1999): Multimedia im immissionschutzrechtlichen Genehmigungsverfahren, Baden-Baden. Roth, Gerhard (2003): Fühlen, Denken, Handeln. Frankfurt am Main.

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Chapter 6

Understanding Images – The Interpretation of Visual Legal Communication

One thing is certain: images cannot be interpreted and understood using the same methods as words and text. The interpretation of visual legal communication is beyond the traditional legal canon of interpretation. Visual legal communication therefore needs to develop its own, new methods of interpretation. And there is an opportunity here to make use of insights and experience from other disciplines which have had more experience with visual hermeneutics.

6.1 W hat’s to Be Done? – Overstretching Legal Dogmatics Hermeneutics – that is not exactly new territory for the law. Jurisprudence has for centuries, if not millennia, been developing methods of how communication can be understood. But the usual legal interpretation skills are suitable for text. That was – and is – correct, as the law is still strongly rooted in and fixated with text. But in the world of images it becomes a problem. Images can scarcely – or only unsatisfactorily – be interpreted using the normal methods of the law. The trend to visual legal communication which is already beginning to become discernible, will therefore (have to) have an impact on the interpretation of legal communication. What’s to be done? Legal dogmatics will have to develop new methods which are suitable for interpreting visual legal communication. Traditional methods of interpretation will not become obsolete as a result. Visual legal communication will also be able to and will need to be analysed from historical, subjective, system and teleological points of view. Because one can only insufficiently grasp the specific layers of meaning and effects of images using traditional methods of interpretation, the range of interpretation options needs to be extended. The skills of image disciplines in the widest sense, will need to be called upon to fully deliver the meaning of visual legal communication. Communication sciences and communication psychology insights can help here just as much as art specialist

Thoroughly on aesthetic hermeneutics Gadamer (1960/1990), P. 139 ff.


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or art history knowledge. And the disciplines of the theatre also promise assistance in analysing images. But performance analysis is a proven instrument for understanding moving images. The more the law communicates using images, the sooner art history image analysis and performance analysis from the study of the theatre become imaginable – and necessary – as methods of legal interpretation. It is quite clear: legal dogma has to dare to attempt a methodological cross-over. Otherwise visual legal information will not be fully deciphered.

6.2 L earning from Art History – What Can Images Tell Us? What can images say? That is the question which art history tries to answer. It has a long tradition of analysing images. Its methods of interpretation have developed and changed over the years. “State of the Art” in image interpretation at present is the three level model of iconology, which was invented by Aby Warburg and Erwin Panofsky. The analysis of an image starts with its pre-iconic description: the perception and description of what the image represents. On the second level of interpretation of an image the actual iconographic analysis starts. At this level of interpretation it is a question of opening up the meaning of a visual work. Questions are now asked about the importance of the people and objects which are represented, how they are grouped and what actions link them. The third level of image analysis finally looks at the actual meaning and the deeper content of the image.10 The iconological interpretation wants to use the image as a source or document for understanding the epoch in which it was created. With its help unusual, complex image programmes can be deciphered. And insights can be gleaned about the age, the society, the artist or his patron and the cultural ideas of their time.11 Iconology is

Other disciplines are only just beginning with visual hermeneutics. Along with law, sociology is a clear example of this. A cultural, sociologically-inspired concept of visual hermeneutics is developed by Müller-Doohm (1993), P. 444 ff. On the lengthy history of methods of image analysis in the history of art at length Kopp-Schmidt (2004), P. 44 f. Seminal on this Panofsky (1939/1978), P. 36 ff. On the limits of this method Imdahl (1996), P. 91 ff. Panofsky (1939/1978), P. 39. At length on this Kopp-Schmidt (2004), P. 52 f., who draws parallels between modern brain research and pre-iconographic descriptions. Panofsky (1939/1978), P. 39 f. On this Kopp-Schmidt (2004), P. 53 f. Panofsky (1939/1978), P. 39 f.; Kopp-Schmidt (2004), P. 53 ff., with examples. 10 Panofsky (1939/1978), P. 40. In doing this he goes back to the iconological analysis, that Warburg introduced to art history. At length on this Kopp-Schmidt (2004), P. 48 ff.; Bätschmann (2001), P. 58 ff. 11 Kopp-Schmidt (2004), P. 60.

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no longer really about interpreting a work of art, but about better understanding the world which is shown in the work of art.12 The history of art continually refines and modifies this hermeneutic model. This constantly increases the value of what it can deliver. Iconics ignores the historical and cultural context of an image and focuses on the image per se.13 It is more interested in the individual message of an image than in its social, political or cultural history.14 It is less a historical and more an aesthetic approach.15 The semiotic study of art crosses disciplinary boundaries and integrates semiotic knowledge in its methods.16 It views works of art as value-neutral systems of signs, which can be deciphered using semiotic methods. Image anthropology17 also offers an important contribution, whose value cannot yet truly be estimated, to the extension of art history to becoming a general science of images. At its core is the human being who creates and uses images. Its distinguishing concepts are therefore medium, image and body.18 Can these insights and methods help the law? Would legal iconography and a legal iconology be possible? Legal iconography and legal iconology are still in their infancy. They have not got past some initial attempts.19 Because images in modern law – so far – have played only a marginal role, that is hardly surprising. If law – as is currently the case – does not communicate visually, then no legal iconography is needed. But that will change, the more the law becomes visual. If images do – and it looks like they will – become an important legal method of communication, they have to be understood. The challenge for the future is clear: the law must develop performant methods of interpretation which can interpret and understand legal images. In the long term iconology will become a further method of legal interpretation.20 In this the law is currently in a fairly comfortable position. It can make use of generic iconographical and iconological methods, which have been developed by art history or other image disciplines. The development of a legal iconology will be made simpler thanks to an interesting parallelism. The three level approach outlined above for interpreting images shows strong similarities to the traditional text-related 12

Here Bätschmann (2001), P. 72, also sees the strengths and the limits of Panofsky’s model. Seminal on iconics as an image studies paradigm Imdahl (1996), P. 97 ff. 14 Imdahl (1996), P. 97, stresses explicitly that iconography and iconology on the one hand and iconics on the other are not mutually exclusive. They complement each other and remove “blind spots” in one or other method. 15 Seminally Imdah (1996), P. 97 f. On this critical but appreciative Bätschmann (2001), P. 143 ff. 16 Seminal and paradigmatic for this Thürlemann (1990), P. 8 f. In various work analyses Thürlemann (1990), P. 19 ff. Develops the specificities of the semiotic study of art using examples. 17 Seminal on this Belting (2002). 18 Belting (2002), P. 11 ff. 19 Similarly also the evaluation by von Brunschwig (2001), P. 211 f. The most advanced approach comes from Kocher (1992). Other legal iconological outlines were presented earlier by Fehr (1923). 20 Informative on this Knieper (2003), P. 193 ff., who uses iconology to analyse modern press photos. 13

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interpretive approach of the law. Interpreting words focuses exclusively on the text and the meaning of individual sentences and words.21 That is very similar to the pre-iconographic description which derives what is seen phenomenologically in an image.22 The historical and system interpretations23 widen the view beyond the words themselves. They use the historic development of the legal text, its political and social context and its overall dogma system to determine further dimensions of the content. This is similar to how iconography – the second level of understanding images – approaches an image analysis. It also breaks out of the framework of the pure examination of the image and asks about historic and systemic contexts and classifications in a wider context.24 Just as clear are the parallels on the last level of analysis on both sides. The teleological interpretation used in the law looks for the telos – the purpose, aim and goal of a legal standard.25 This is similar to the aim of iconological interpretations: they are looking to apprehend the deeper meaning and the content of the images.26 Like the teleological interpretation they are actually asking about the meaning.27 As surprising as this parallelism may seem on first sight: it is not really astonishing. Because in both cases we are talking about practical hermeneutics, related in one case to images and in the other to texts. In legal interpretation of texts, just like in the iconological analysis of images there is a common goal: uncovering the various layers of meaning and understanding the deeper meaning. Hermeneutics is based on fundamental structures and basic rules,28 which are independent of whether it is images or texts we are attempting to understand.29

6.3 L earning from the Theory of the Theatre – Interpretation of Moving Legal Images Iconography and iconology hit their boundaries when we are looking at the interpretation and understanding of moving images, of performances. How can performances be understood? A legal analysis of performances could borrow from theatre studies. For the study of the theatre is specialised in understanding and analysing performances or productions. It has worked out ground rules for analysing performances which can be applied to the understanding of legal performances. 21

Detailed on this Larenz/Canaris (1995), P. 141 ff. inter alia Panofsky (1939/1978), P. 39. At length on this Kopp-Schmidt (2004), P. 52 f. 23 On the historical and systematic interpretations in detail Larenz/Canaris (1995), P. 145 ff. inter alia. 24 Panofsky (1939/1978), P. 39 f.; Kopp-Schmidt (2004), P. 53 ff., with examples. 25 Larenz/Canaris (1995), P. 153 ff. inter alia 26 Panofsky (1939/1978), P. 40.; Kopp/Schmidt (2004), P. 60. 27 Bätschmann (2001), P. 78, stresses this quite explicitly. 28 Seminal Gadamer (1960/1990), P. 312 ff. On the underlying hermeneutic problem. 29 On understanding as a goal of hermeneutics Gadamer (1960/1990), P. P. 312. 22

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6.3.1 How Should Moving Images Be Understood? How can moving images be understood? The method of choice is performance analysis. Performance analysis is a central part of theatre studies.30 It starts from a central idea: a performance or production31 is a theatrical text which needs to be deciphered and understood.32 The goal of performance analysis is uncover the metatext contained in the performance.33 In this, the hermeneutics of theatrical texts are not fundamentally different from the interpretation and understanding of other texts.34 In the end when carrying out a legal teleological analysis you are looking at a deeper understanding of a legal text. Because performances – in the language of theatre studies: theatrical texts – have special characteristics which distinguish them from other representations, specific methods are necessary to understand them.35 Transformational analysis – a variant of performance analysis – asks how a performance came into existence from the dramatic text on which it is based.36 It analyses the individual interpretational steps which a theatre performance undergoes on its way from a text book to a performance on the stage. Structural analysis on the other hand does not start from the text book for the performance, but from the performance itself.37 The literary text book that the performance is based on is of secondary importance to it.38 The oft-repeated requirement to remain true to the original work is irrelevant for this.39 How to understand moving images is not just a subject for theatre studies. Film and television research also studies it. Because films and TV programmes – like theatre performances – can be understood as special texts and narratives.40 Film and television can, and must, also be read and understood as texts.41 That is the goal of film and television hermeneutics – just like any other hermeneutics.42 30

Balme (2001), P. 82. On the theatrical text at length Fischer-Lichte (2003), P. 10 ff. On the conceptual difference between performance and production Balme (2001) P. 82; Fischer-Lichte (2004), P. 270. 32 Balme (2001), P. 58 ff., explains the semiotic roots of this view. At length on performance as a theatrical text Fischer-Lichte (2003), P. 10 ff. 33 Balme (2001), P. 90. 34 At length on the hermeneutics of theatre texts Fischer-Lichte (2003), P. 54 ff. inter alia 35 At length on the methods of performance analysis developed by theatre studies, Balme (2001), P. 92. 36 Balme (2001), P. 92 inter alia. At length and critical on this Fischer-Lichte (2003), P. 34 ff. 37 Thoroughly on structural analysis Fischer-Lichte (2003), P. 69 ff. 38 Fischer-Lichte (2003), P. 54. For an overview of the differences between transformational analysis and structural analysis Balme (2001), P. 93. 39 Fischer-Lichte (2003), P. 54. 40 Hickethier (2001), P. 23 f. inter alia. 41 Fiske/Hartley (1978), who talk about “Reading television”. Details on “Reading a film” from Hickethier (2003), P. 106 ff. inter alia. 42 On understanding as the goal of hermeneutics, thoroughly Gadamer (1960/1990), P. 312. 31

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Communication studies has developed two approaches to deciphering film and TV texts: an empirical social sciences-oriented one and a hermeneutic one.43 The empirical approach looks in the content of the media for objectifiable and quantifiable structures and elements. The preferred methods for this are frequency analyses, valency, intensity and contingency analyses. Using these methods, some workable material or “hard facts” can be collected. Although useful and important: this does not give us any deeper understanding. Anyone who wants to understand the meaning of texts – so also of films and television programmes – has to apply a qualitatively biased, hermeneutic study. Therefore the hermeneutic analysis of films and television starts from the multiple layers of meaning of film and televisual works. It attempts to discover additional layers of significance and potential meanings.44 Both approaches have their own strengths and weaknesses. They are, of course, not mutually exclusive. Both directions complement and respect each other. The hermeneutically-oriented film and television analysis increasingly also makes use of quantitative data and materials. Conversely the quantitative-empirical approach increasingly makes use of a qualitative interpretation of its data.45 In the end, it is only the combination of both methods which really gives satisfactory results.

6.3.2 P erformance Analysis – A New Method of Legal Interpretation A legal system can be better understood if it can (also) be viewed as a performance and is analysed accordingly. The most striking example of this each time is the court case. Naturally, a case is first of all a meaningful court process, at the end of which comes a legally relevant decision. But it is also – going way beyond this – considerably more: the case is a performance by the state, through which it demonstrates and imposes its power. In a modern constitutional state – this is made clear by the performance – that is a state whose power is limited by the (constitutional) law, the accused does not stand there helplessly facing the state, he is defended and has an effective means of defence. Another example of legally relevant performances which need to be analysed, is the legislative performance. This is – like a court case – firstly a meaningful procedure, shaped by the constitution from which laws are produced. But even in a modern state the legislative process is more than that: a performance through which the state demonstrates its democratic transparency and its wish to balance 43

Hickethier (2001), P. 30 f. Hickethier (2001), P. 32., who in ibid, P. 55 ff. Presents categories, using examples, which he uses to analyse moving images. In the analysis of film and television images it is finally not just about the images, but also about the sound, which needs to be included in the analysis. Because in the ideal case – as Monaco (1980), P. 111 stresses – the sound is just as important as the image. On the analysis of the audio in detail Hickethier (2001), P. 94 ff. inter alia. 45 Hickethier (2001), P. 31. 44

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all interests. This is demonstrated by the – extremely ritualised – readings of draft laws in the full session of the lower house. These really have little to do with any real work on the law in detail. They demonstrate on a symbolic level that the democratically elected plenary body of the Parliament is occupied with the text publicly and is deciding about the further steps in the law-making process. One goal of this performance is also to publish the claim of the state that its laws must be obeyed. Not least for this purpose are laws signed by the Federal President – the highest representative of the State46. Because the Federal President only has a very limited right of intervention,47 his participation is not necessary from the point of view of having an efficient process, if anything it hinders it. If you look at the law-making process as a performance, however, then his participation at the end becomes necessary: the head of State solemnly signs the law. That commits the citizens to respecting this law. The presentational effect is also increased by the fact that laws are not simply published, but are promulgated in the Federal Legal Gazette. In this concept of announcement/annunciation which is laden with theological and legal connotations, there is another element of solemnity.48 Many other examples of this kind can be found. The importance of legal performance analysis will therefore increase considerably. The more visual the law becomes, the more performances will need to be used to clarify and communicate legal content. But these new visual legal communications will only be understood if the corresponding hermeneutic instruments are available. The increasing visualification will therefore make legal performance analysis a necessary standard instrument of legal interpretation. Globalisation will also substantially increase the importance of legal performance analysis over time. Why is this the case? The law of other cultures is easier to understand if you can make use of performance analysis as an instrument. In legal anthropology that has already been done for some time. Comparative law could find new impetus as a result. The more that globalised law develops, the more necessary it is for legal theory and legal dogma to understand foreign legislations. Legal performance analysis can make an important contribution to this. A major legal-theoretical challenge is linked to this development. The law can indeed borrow from the sophisticated preparatory work on performance analysis already carried by theatre studies on the one hand, and communication science on 46

His role as head of state gives the Federal President a supremely symbolic importance. V. Beyme (2004), P. 306 ff. shows how various presidents have shouldered the role in various ways. But his practical political power does not match up to this. Examples for the limitation of the power of the Federal President are given by v. Beyme (2004), P. 305. 47 On the debate about the Federal President’s power to block a concise overview by Hesse (1999), P. 277 ff. inter alia. 48 Given that Art. 82 para. 1 Sentence 1 of the German Constitution expressly talks about announcing, not about publication or notification, it moves onto a symbolic, performing level. So whether an electronic public announcement of laws has the same symobolic effect is rather doubtful. On this point the setting up of electronic publishing platforms by legislating bodies is not unproblematic. An overview of this topic is given by Walker (2005), para. 1 ff. inter alia, although without including the symbolic aspect.

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the other. But legal theory needs to develop its own, independent method of performance analysis, adapted to the special characteristics of the law. The ideas which were developed, say, for the analysis of theatre performances, cannot just be picked up without any modifications and applied to legal processes. That can easily be made clear via an example: the structural analysis49 used in theatre theory focuses on the content and structure of a performance. It ignores the literary “text book” which underlies the performance; at best it plays only a marginal role. For the analysis of legal processes this method is not very suitable, just on the basis of Article 20 para. 3 of the German Constitutional Law (Grundgesetz) alone. Every legal performance must of necessity be bound by justice and the law. Justice and the law as the “text book” of the legal performance are anything but irrelevant. So it is more likely to be transformational analysis which provides the option of getting a deeper understanding of judicial performances.50 As mentioned above, it puts the text book into focus. It asks how the underlying text of a performance has been translated. One can think about a judicial performance in these terms. To make it clearer using an example: how are precise rules of case procedure applied in a specific case before the court? That could be a question for a judicial performance. The theory of law could let itself also draw inspiration from the empirical social sciences branch of film and television analysis.51 This would allow structures in judicial performances to be investigated in an objectifiable, quantifiable way. That might include carrying out frequency analyses, valency analyses, intensity and contingency analyses.52 It is sensible, even necessary, to extend the legal “toolbox” to include tools which can be used to understand moving images. What that looks like in practice, has – apparently – not yet been researched. It is time to change that. The visualification of the law is moving on apace.

6.4 N ot Chance, but Necessity – Cross-Border Interpretations The traditional legal methods of interpretation, in the age of images, are hitting their limits. Images can only be understood in a very limited way using the current tools of interpretation. That is not surprising. Because the usual methods of interpretation are tailored to the dominant medium of the law – written language. If and because the language is being extended, then the range of hermeneutic instruments must also be extended.

49

At length on this see above Chap. 6.3.1. On transformational analysis at length see above Chap. 6.3.1. 51 On empirical social science film and TV analysis at length Hickethier (2001), P. 31 ff. 52 On the details Hickethier (2001), P. 31 inter alia. 50

Bibliography

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That no doubt sounds strange to the ears of traditional jurisprudence, perhaps even irritating. But the law is also being confronted by a new phenomenon, which it has to learn to manage sensibly. The flood of digital images can only be mastered judicially if the law overcomes its irritation and takes up new tools. It is a question of drawing inspiration from the relevant academic disciplines and using their suggestions to develop innovative methods of legal interpretation.

Bibliography Balme, Christopher (2001): Einführung in die Theaterwissenschaft. 2nd Edition Berlin. Bätschmann, Oskar (2001): Einführung in die kunstgeschichtliche Hermeneutik. Die Auslegung von Bildern. 5th Edition Darmstadt. Belting, Hans (2002): Bild-Anthropologie. 2nd Edition Munich. Beyme, Klaus von (2004): Das politische System der Bundesrepublik Deutschland. Eine Einführung. 10th Edition Wiesbaden. Brunschwig, Colette (1999): Rechtsikonographisches „Update“ für die Rechtsarchäologie. Rechtsarchäologie im Dienste der Visualisierung heutiger Rechtsnormen, in: Peter Landau/Hermann Nehlsen/Matthias Schmoeckl (Ed.): Karl von Amira zum Gedächtnis. Frankfurt am Main, P. 51 ff. Brunschwig, Colette (2001): Visualisierung von Rechtsnormen. Zurich. Fehr, Hans (1923): Das Recht im Bilde. Erlenbach-Zurich. Fischer-Lichte, Erika (2003): Semiotik des Theaters. Band 3: Die Aufführung als Text. 4th Edition 1999 (Reprint 2003). Tübingen. Fischer-Lichte, Erika (2004): Ästhetik des Performativen. Frankfurt am Main. Fiske, John/Hartley, John (1978): Reading Television. London. Gadamer, Hans-Georg (1960/1990): Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik. 6th Edition Tübingen. Hesse, Konrad (1999): Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland. Reprint of the 20th Edition Heidelberg. Hickethier, Knut (2001): Film- und Fernsehanalyse. 3rd Edition Stuttgart/Weimar. Hickethier, Knut (2003): Einführung in die Medienwissenschaft. Stuttgart/Weimar. Imdahl, Max (1996): Giotto Arenafresken. Ikonographie. Ikonologie. Ikonik. 3rd Edition Munich. Knieper, Thomas (2003): Die ikonologishe Analyse von Medienbildern und deren Beitrag zur Bildkompetenz, in: Thomas Knieper/Marion G. Müller (Ed.): Authentizität und Inszenierung von Bilderwelten. Cologne, P. 193 ff. Kocher, Gernot (1992): Zeichen und Symbole des Rechts. Munich. Kopp-Schmidt, Gabriele (2004): Ikonographie und Ikonologie. Eine Einführung. Cologne. Larenz, Karl/Canaris, Claus-Wilhelm (1995): Methodenlehre der Rechtswissenschaft. 3rd Edition Berlin a.o. Monaco, James (1980): Film verstehen. Reinbek. Müller-Doohm, Stefan (1993): Visuelles Verstehen - Konzepte kultursoziologischer Bildhermeneutik, in: Thomas Jung/Stefan Müller-Doohm (Ed.): „Wirklichkeit“ im Deutungsprozess. Verstehen und Methoden in den Kultur- und Sozialwissenschaften. Frankfurt am Main, P. 438 ff. Panofsky, Erwin (1939/1978): Ikonographie und Ikonologie. Eine Einführung in die Kunst der Renaissance, in: Erwin Panofsky: Sinn und Deutung in der bildenden Kunst. Cologne, P. 36 ff. (first published in: Studies in Iconology. New York 1939. Röhl, Klaus F. (2001): Allgemeine Rechtslehre. 2nd Edition Cologne. Thürlemann, Felix (1990): Vom Bild zum Raum. Beiträge zu einer semiotischen Kunstwissenschaft. Cologne. Walker, Reinhard (2005): Die amtliche elektronische Verkündung von Gesetzen, in: JurPC WebDok. 155/2005, Para 1 ff.

Chapter 7

Visual Law – The Law as Drama?

The stage-management of the law is desirable, if not necessary. At the same time it is ambiguous and highly problematic. There is always a risk of the law deteriorating into theatre which is devoid of content, fixated on entertainment and full of special effects. Is this a real danger? The example of politics can focus our attention. Stagemanagement and theatrification in politics are much further advanced and show us an example of the problems involved in visual performance-based communication.

7.1 Entertainment – Images in the Media If the law gets involved with images then it will not only be confronted with the logic of images, but also with the logic of the mass media, particularly of television. If images and the mass media are linked, the reason is profit, print runs, viewer figures – so it is all about the entertainment value of the content. In a media society, images and the tabloids go together. What does it mean for the law if it tangles with tabloid logic or even if it has to use it?

7.1.1 Overlaps – Image Logic and Tabloid Logic Fundamentally images and mass media follow very different types of logic. In practice, however, the boundaries are blurred, and there are wide areas of overlap. What causes this? Television is the dominant socio-cultural medium and also the image medium par excellence. In modern society it produces not only the most, but the most effective images. To work effectively with images, it has to bend itself to the logic of images. Because it works so effectively with images, on the other hand, it determines to a large extent the approach to images of the whole of

Gerbner et al (2002), P. 192 ff. On the dominance of visual communication in television at length Altheide/Snow (2001), P. 29.


193

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society. What images are and how images are perceived is defined not least by television. In this, television makes an important – but not unproblematic – contribution to the visual cultural memory of society. But the effect goes even further. Which images stick in the head of the viewer and shape their view of the world is decided by the television schedules. This spreads not only the logic of images, but automatically and subliminally also the specific logic of television. This has an important methodological consequence for the question of the impact images have on the law. Consideration of this can start from the empirically well-researched logic of television.

7.1.2 The Show Must Go on – The Logic of Television Each new medium has per se some personal, social and psychological effects which arise from its use. To quote the famous saying: the medium is the message. Every medium per se changes the world, no matter what its content. That also applies of course to television. At the latest by the 50’s of the last century television began its triumphal progress in the USA. In the meantime television has become all-pervasive in Germany too. Therefore television shapes culture and society overall ever more strongly. Television has become the source of opinions, ideologies, behaviour and perspectives. Anyone who watches a lot of television acquires a special view of the world – which often has little to do with reality.10 That then affects social behaviour in turn. The media theory, that analyses these effects, has therefore developed the theory of the TV-society.11 Some even see television being on the way to

Seminal on how television shapes world views, at least in frequent watchers Gerbner et al (2002), P. 202 ff. on a broad empirical basis. On the problems of researching effects of mass media Schenk (1997), P. 155 ff. Thus the simple but seminal recognition by McLuhan (1992), P. 17 f. Critical of this Türcke (2005), P. 141 f., but he probably misunderstands McLuhan. On this Dörner (2001), P. 47 ff. inter alia. Extremely critical on this Postman (1999), P. 108 ff. On the “all-pervasiveness of media entertainment” at length Dörner (2001), P. 40 ff., and Fritz/ Klingler (2003), P. 12 ff. with copious empirical material. Luhmann (1996), P. 20 and Postman (1999), P. 99 f. Gerbner et al (2002), P. 195 ff. show, using a broad empirical basis, how television creates and encourages specific points of view and opinions among frequent watchers. Gerbner et al (2002), P. 203. 10 A nice example of this is given by Gerbner et al (2002), P. 202 inter alia: frequent watchers in the USA think old people are a small, marginal group of the population. In the “real world” the group of over 65-year-olds is the fastest growing segment of society. Other striking examples are given by Gerbner et al (2002), P. 203 ff. 11 Seminal Meyrowitz (1990a), P. 147 ff.

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being a religion substitute.12 This makes it even more urgent to answer the question: what is the logic of television? And how does it modify the logic of images? The logic of television is dominated by selection. Really? Does television not rather stand for removing boundaries to experience and points of view and visual overload? What is typical of the TV society is that potentially all citizens have access to new, information or images.13 Spatial boundaries are effortlessly overcome by television. This expands the field of experience of the individual person. Everyday life speeds up and gets more complex.14 But at the same time experience is standardised: millions of people, who have nothing in common socially or spatially,15 see the same entertainment, behaviour and information options.16 The common TV environment leads to similar experiences and common socio-psychological frames of reference.17 The experiences of different social groups get blended, new group identities are created.18 This also has effects on the individual’s socialisation processes.19 The common experiences of a television audience do, however, – this becomes clear on a second, closer look – remain limited. Because television – like all other media – does not show the whole of reality. That would indeed be impossible. It looks at certain aspects, other parts of reality are not taken into account.20 Journalists wear particular “blinkers” through which they see certain things in a certain way.21 They do not see other things. From what they see, television creates a construct.22

12

Thomas (1998), P. 17 f., 516 ff. inter alia and pass. Critical and taking this approach further Schmidt (2000), P. 195 ff. 13 Dörner (2001), P. 87; Meyer et al (2000), P. 71. Seminal and at length on this already Meyrowitz (1990a), P. 162 ff. 14 Dörner (2001), P. 88 f. On the speed aspect of electronic media and their social consequences Meyrowitz (1990a), P. 226 ff. 15 Meyrowitz (1990a), P. 233 ff. inter alia stresses, that the electronic media do potentially remove the link between social and physical locations. 16 Meyrowitz (1990a), P. 176. That in turn has repercussions on the content of the electronic media: they become very homogenised. On this Meyrowitz (1990a), P. 336 f. That is – as Saxer (2007), P. 76 ff. stresses – reinforced by the balance which the media pursue. Media look for the “familiar in the foreign”. Content which is too surprising, too strange or disturbing is dropped, in order not to disappoint the expectations of the wider public. 17 Meyer et al (2000), P. 71. 18 Meyrowitz (1990a), P. 253 ff. inter alia. How these processes work in detail and what effects they have is shown by Meyrowitz (1990b), P. 43 ff., at length using the example of the mixing of female and male identifying features and role models. 19 Meyrowitz (1990a), P. 289 ff. inter alia. At length on the role of television in the socialisation of children Meyrowitz (1990b), P. 103 ff. inter alia. 20 Meyrowitz (1990a), P. 221, stresses correctly that every medium filters out some aspects of reality. Although the filters of different media are different and each time typical of the medium. At length on this Meyrowitz (1990a), P. 222 ff., who compares the filtering of written and electronic media. 21 Bourdieu (1998), P. 25. 22 Bourdieu (1998), P. 25.

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What consequences does this have? The selection that television makes shapes the image of reality that the media transmit.23 That in turn shapes the world view and the behaviour of viewers24 – and therefore again affects reality. When television selects some parts of reality and blocks out others, it is therefore having a strong influence on reality.25 Each selection has a manipulative aspect. So how does television change the world? Or to ask it in another way: what criteria does television use to choose which aspects of reality to show? There is no written catalogue of standards to guide that choice.26 But there are general selection criteria which steer the behaviour of those who work in television more or less consciously.27 The selection which takes place in practice and which can be empirically proven is based on reference points which can be explained with an eye to the specificities of television. Not only in television, but also (almost) all mass media the “ratings” mentality rules: the measure is sales success.28 Like all other mass media, television focuses its attention on individual incidents and sensational events.29 It shows short, self-contained episodes. Particular attention is paid to conflicts, infringements of legal or moral standards, or scandals.30 Because then it is about something new, irritating, which breaks through the daily grind.31 Not least, electronic mass media are addicted to catastrophes:32 When transmitting catastrophes (live) television can truly develop its full impact. To overstate it somewhat: the ideal television event is short, dramatic and bloody.33 Just as evident is the focus on people: the mass media image culture is basically coloured by an addiction to “celebrities”.34 People are used as tangible symbols for abstract conflicts or an unknown future.35 Personalising is one option for reducing the complexity of reality.

23

Luhmann (1996), P. 139; Dörner (2001), P. 91. Gerbner et al (2002), P. 203, describe television pointedly as a “significant source of general values, ideologies, and perspectives as well as specific assumptions, beliefs, and images”. 25 At length and very critical on this Postman (1999), P. 100 ff. 26 Meyer (2001), P. 46. 27 Seminal on this Schulz (1976); Altheide/Snow (1979), P. 35 ff., who talk in this context of a “grammar of television”. Similarly also Meyer (2001), P. 46. 28 Bourdieu (1998), P. 36. 29 Meyer (2001), P. 47. Jarren (1998), P. 87. Saxer (2007), P. 73 even talks about “eventising”. Generally on the importance of events for the modern media images culture Perlmutter (2003), P. 11 ff. 30 Luhmann (1996), P. 59 ff.; Meyer (2001), P. 47. 31 At length on the reasons why conflicts are so attractive for the media, Hoffjann (2003), P. 217 ff. inter alia. On the importance of scandals in and for the media Kepplinger (2001), P. 62 ff. inter alia. 32 Thus pointedly Sauerländer (2004), P. 416. 33 Winterhoff-Spurk (2001), P. 157 f. 34 On this Perlmutter (2003), P. 12 ff. 35 Luhmann (1996), P. 66; Meyer (2001), P. 50 with examples. In political reporting therefore a concentration on high status players is noticeable. On this Jarren (1998), P. 88 inter alia. 24


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Personalisation of complex contents simplifies them and makes them presentable on television.36 Overall, television tends to prepare all its content from the point of view of entertainment.37 There is in fact an anthropological basis for this. People long for entertainment. Entertainment has an important function in human societies: it can reduce tensions, or at least make them less acute.38 The entertainment effect is therefore more and more the decisive factor in selection and depiction in the mass media.39 Why is this observation troubling? The entertainment paradigm, which dominates the audiovisual media, not only has consequences for the form of the presentation, but also for its content. Potentially television will only show things which have entertainment value. All areas of culture, politics, economics and society will therefore only be shown if they have some entertainment value.40 Anything which is not entertaining, or cannot be shown in an entertaining way, will not be shown. With the major consequence: it therefore didn’t happen in television reality. That does not just mean in the entertainment sector. If that were the case then this fact would be trivial. Even “serious” areas such as news, documentaries etc. are increasingly being prepared and presented from the entertainment perspective. Examples for this are things like infotainmentprogrammes and docudramas. Just how entertainment-fixated television has now become is shown by looking at the newsworthiness criteria which are applied in the media to decide whether an incident is newsworthy or not. They are heavily focused on people, violence and emotions.41 What does the entertainment value depend on? When does a programme meet the requirements of the entertainment paradigm? What is decisive is the emotional quotient: it depends on the feelings. Entertainment is – as glitzy and vague as this concept42 may be – the opposite of the everyday, of normality, of routine.43 36

Saxer (2007), P. 73 notes correctly that this strategy is also problematic and can become dysfunctional. 37 Postman (1999), P. 110, criticises that the mass media make entertainment the natural setting for every presentation of experience of the real world. Similarly also Saxer (2007), P. 73 ff. inter alia, who notes eventising and euphorising as mechanisms of mass media editing. 38 Saxer (2007), P. 163. 39 On this early and at length Altheide/Snow (1979), P. 19 ff. inter alia. Very critical analysis of this from Postman (1999), P. 110 ff. 40 On this already Altheide/Snow (1979), P. 35 f., 54 ff. and Altheide/Snow (2001), P. 46 ff. with many examples from American television. But the same trend can be discerned in German television. On this Winterhoff-Spurk (2005), P. 118 ff. inter alia 41 At length on the newsworthiness factors Schulz (1997), P. 70 ff. and Saxer (2007), P. 112 ff. 42 The entertainment viewpoint is characterised by unusual ways of behaving, unusual talents, with which people can indentify vicariously, and by the possibility of enjoying what is shown in a playful way. This includes a high level of emotion. On the concept of entertainment in the electronic media Altheide/Snow (1979), P. 20 f.; Altheide/Snow (2001), P. 16 f., although relating to the American electronic mass media. But it can also be applied to the German media. 43 Altheide/Snow (1979), P. 20, summarise this in a typically American way: entertainment is “bigger than life”.

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Entertainment is always – at least in its approach – an adventure. Programmes are therefore only entertaining when they evoke moods in the viewers and trigger feelings.44 The history of television is also the history of emotions: from the beginning television has (mainly) created emotional reactions in viewers.45 What is the reason for these specific selection criteria in the mass media? The mass media produce – not exclusively, but to a very large extent – products.46 These are ratings, print runs, public interest and finally economic profits.47 The logic of the mass media is therefore primarily an economic logic.48 This has consequences: because economic success depends on the ratings, or the size of the print run, then mass taste becomes the decisive measure for content.49 Mass media want – and have – to catch the attention of their audience. But that is best done using spectacular individual incidents, events and personalities. You can also see a certain dumbing down: anyone who wants high ratings has to offer a stream-lined programme format.50 True conflicts and problems are difficult and frighten the public away. Television is therefore dominated by apparent problems and apparent conflicts, but they are performed spectacularly. Technical progress and changes in political direction have increased the economic pressure in the area of the mass media. Technical developments and political liberalisation over the last two decades have fundamentally changed the context for the electronic mass media in Europe51. The speed of mass media communication has increased as much as the competition between the players in the media for the attention of the viewers.52 These particular production conditions also influence the content of television. Television is indissolubly linked with real life53. So this concentration on entertainment and emotions has had its effects on the world view of the target audience and on social communication – in short: on reality itself. Logic, common sense, complexity, consequences and lack of contention are not very entertaining and are therefore less important – not only immediately and directly in the media, but also with a time lag and indirectly in the world view and in the lives of the 44

On the decisive role of feelings in entertainment programmes Altheide/Snow (2001), P. 17. Winterhoff-Spurk (2001), P. 183 inter alia. On the details of how television reaches and affects viewers emotionally, at length Winterhoff-Spurk (2005), P. 128 ff. inter alia. 46 Thus very decisively Thomas Meyer (2001), P. 57. Sunstein (2001), P. 682, reduces it to the slogan: “Pairs of eyes as retail products”. 47 Bourdieu (1998), P. 19 stresses critically, that in television at the end of the day it is economic pressures which rule. 48 On the mechanisms behind this for the industrial production of information Franck (1998), P. 62 ff. 49 Postman (1999), P. 110, criticises that the mass media make entertainment the natural setting for every presentation of experience of the real world. 50 Bourdieu (1998), P. 62 f. 51 In America the media scene, which had a private ownership economic structure from the start, has long been shaped by these circumstances. 52 Critical on “Fast thinking” in television Bourdieu (1998), P. 37 ff. 53 Altheide/Snow (2001), P. 27 f. 45


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viewers.54 Feelings, adventure, dramatic exaggeration and complications, unrealistic expectations and hopes dominate instead.

7.1.3 B etween Enlightenment and Dumbing-Down – Opportunity and Risk of the Entertainment Paradigm Grabbing more attention by using emotional, dramatic, entertaining presentations of reality – this concept offers both an opportunity and a risk. This can be clearly seen from the example of infotainment:55 content is worked up in the media in such a way that is felt to be entertaining.56 The theoretically clear boundary between information and entertainment is increasingly blurred in media reporting.57 In infotainment programmes there is a blend of stylistic methods and themes from the areas of entertainment and information.58 Behind this is the recognition that entertainment and information are in no way mutually exclusive, but possibly even require each other.59 Elements and stylistic methods from entertainment give viewers easier access to the information on offer. Television in particular manages in this way to make serious political topics and facts accessible to a wider public.60 Here there is a major opportunity in the entertainment paradigm for (political) public communication.61 Entertainment elements catch the attention of the public and thereby capture the scarce commodity of attention.62 And the presentation of reality using the entertainment principle can also reduce complex structures or processes and make them visible and comprehensible.63 In summary: entertaining reports with images about conflicts between members of Parliament attract more attention than a dry legal

54

Thus very decisively Postman (1999), P. 130. But Meyer (2001), P. 54. is less pessimistic. Dörner (2001), P. 97 ff., contradicts Postmann with the theory that public entertainment also has an important function for public communication. 55 Thoroughly on this Brants (2004), P. 95 ff. 56 On the characteristics of infotainment Holtz-Bacha (2004), P. 26. Infotainment is not a modern invention. On the roots of infotainment in the 18th century Pöttker (2002), P. 61 ff. inter alia. On the mixture of propaganda and entertainment under Nazism Bussemer (2002), P. 73 ff. 57 Meyer et al (2000), P. 139 inter alia. Altheide/Snow (2001), P. 60 f. analyse the trend towards understanding and presenting news as entertainment. 58 Tenscher (1998), P. 193. 59 Westerbarkey (1995), P. 152. As Pöttker (2002), P. 62 ff., stresses, the mass educators of the 18th century knew and practised this principle. 60 This is the result of empirical studies, on which Schenk (1998), P. 387 ff. inter alia, reports. 61 This is missed by Postman (1999) in his thorough criticism of the effects of the entertainment industry on politics and society. How infotainment works in detail on the viewer, has not yet been reliably established. Empirical studies have reached contradictory results. At length on this Brants (2004), P. 107 ff. 62 On this Dörner (2001), P. 33. 63 Dörner (2001), P. 140 inter alia; Holtz-Bacha (2004), P. 29 f.

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treatise on the rights and duties of members of the lower house. Well-made infotainment makes use of this to educate in the best possible meaning of the word. Of course that is not without risk, quite the opposite. The risk of this entertainment-related form of communication is obvious. Topics and problems which can only with difficulty be combined with the entertainment paradigm will not be dealt with by the media very much, if at all. The agenda will not be dominated by the “important” news items but by information which has entertainment value. Overall the risk exists that the frantic piling on of entertaining effects can prevent any efficient transfer of information.64 That can lead to the media presenting a hollow performance, which entertains admirably but where content no longer plays any part.65 Here is the reason why dictatorial regimes especially have from earliest times made major use of impressive mass performances.66 Even if the theatrification of reality by television does not necessarily have to lead to a degeneration in content: the media society currently is seeing much more of the risk than the opportunity in the entertainment paradigm becoming reality.67 The reason for this are the economic constraints, which television like other mass media is subject to.68 Private TV channels produce goods which they have to sell in the market – that is how basic television can be. Heightened competition then leads to attention-getting, ratings and advertising revenue being the all-decisive criteria which apply.69 And even public television does not escape this pressure for ratings – that can be empirically proven.70

7.2 Politics as Drama – A (Dissuasive?) Example What does this increasing dominance of performance and of the entertainment paradigm, this theatrification, mean for the law? So far there has not been much research on this.71 On the other hand the theatrification of politics in recent years has been 64

Meyer et al (2000), P. 140 inter alia. Meyer (2001), P. 54. This is very heavily criticised using practical examples from the USA by Postman (1999), P. 99 f., P. 110 ff., P. 127 ff. 66 How that works is shown by Zimmermann (2006), P. 225 ff. using an example of the fascist Mussolini regime in Italy. 67 On this only Meyer (2001), P. 56 and Gerbner (2002), P. 462. 68 At length on this Meyer (2001), P. 57 ff. with many references. Jarren (1998), P. 87, refers in this context to the increased and still growing pressure of real-time that the electronic mass media face. 69 Meyer (2001), P. 61. On the “product value” of images thoroughly Dorsch-Jungsberger (2003), P. 168 ff. inter alia. 70 On the reasons for this at length Meyer (2001), P. 61 f. Whether the content of private television and public radio is gradually getting more similar over time is controversial. On the discussion about the “theory of convergence“ Tenscher (1998), P. 193 inter alia. 71 An initial attempt at such a study is being done by Röhl/Ulbrich (2000), P. 355 ff., and BoehmeNeßler (2003), P. 125 ff. 65

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intensively analysed.72 The insights gained from that can – very carefully and with reservations – be applied to other areas of society – such as the legal system.73 The theatrification of politics can therefore be used as an empirical experience, with the help of which we can describe a possible theatrification of the law.74 The question is also of interest to jurisprudence: what effects does television’s entertainment paradigm have on politics?

7.2.1 Symbiosis – Politics and Television Politics and images – that is an ancient topic of discussion. Politics has always been largely about presentation.75 It is – although this may astonish at first sight – less an executive activity than an expressive and symbolic one.76 Political power does not just come from competence at doing things, but also to a large extent from competence at presenting things.77 Politicians have always used their body as a means of communicating politics via the media.78 Infamous examples of this are Hitler79 and Mussolini.80 But this practice is not limited to dictators. Body politics is also normal in democracies.81 For millennia in this field there have been similar performances and striking repetitions of particular gestures. The handshake, the hug, the patronising gesture or kneeling – these are all political performances, which have been used

72

An overview of the state of research is given by Meyer et al (2000), P. 54 ff. inter alia. Postman (1999), P. 156 ff., investigates for example the effects of the entertainment industry on the economy. 74 Of course the research results on the theatrification of politics cannot be applied without modification to a potential theatrification of the law. There are too many significant differences between politics and the law to do that. 75 Thus quite explicitly Hitzler (1991), P. 204, who gives an example from Ancient Rome. Similarly Drechsel (2007), P. 115, who talks about the visual dimension of politics. 76 Hitzler (1991), P. 204. Seminal on this point already Edelman (2005), who described “politics as rituals”. Therefore political science must also be viewed and carried out as a science of images. This is an obligatory consequence which Drechsel (2007), P. 107 ff., draws from the visual nature of politics. 77 Similarly Hitzler (1991), P. 201, although he stresses the presentational effect too heavily. Without any competence in doing things, using only presentational competence it is not possible to gain or to exercise political power. There are many examples to support this. 78 Diehl (2004), P. 196 inter alia. 79 Very informative on this Hennig (1995), P. 27 ff. and Herz (1995), P. 51 ff., each with examples. 80 At length on this Zimmermann (2006), P. 225 ff. inter alia and Spagnoletti (1995), P. 11 ff. with many examples. 81 On body politics of American Presidents in the 20th century Keller (1995), P. 135 ff. An extreme example of this is the Brazilian President Fernando Collor de Mello in the nineties of the last century. At length on this Diehl (2004), P. 195 ff. inter alia, with examples. 73

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since ancient times up to the present, in order to convey content using images.82 In politics one thing as always been true: power must be visible to work. That becomes even more true in a media society. Without media presence power can no longer be won or retained in a modern media society.83 Political communication, which is needed for democratic legitimacy, is today only thinkable using the mass media.84 Anyone who does not know how to present himself well in the media has no chance in the competition for high political office.85 A similar change of mentality has taken place among political players in the meantime.86 Policies are more and more often strategically designed for their media effect. In the television market the highest ratings – and therefore the highest attention quotient – is achieved by using entertainment formats. The enormous reach of the entertainment culture into the non-political voter strata makes it a must for political actors to play by the rules of entertainment.87 To get the attention of the citizens88 and to present their content, political actors are more and more employing the presentation methods of the entertainment industry.89 The media in an entertainment society are in any case more interested in visual performance than in the exchange of ideas.90 That is the own goal when the rules of the entertainment society are influencing politics and increasingly changing them.91 This becomes particularly clear if you look at the changes in election campaigns in Germany in recent years.92 Particularly – but by no means only – during election campaigns politics becomes politainment.93 For example the number of appearanc-

82

In detail on this Wenger-Deilmann/Kämpfer (2006), P. 189 ff. with striking examples. Dörner (2001), P. 14. 84 Kamps (2004), P. 57 f. 85 Thus very clearly Münkler (2001), P. 160. 86 Details on this from Saxer (2007), P. 96 ff. inter alia. 87 Dörner (2001), P. 116. On the strategies which politicians use to exploit the massive reach of the electronic mass media, Holtz-Bacha (2004), P. 31 ff. That this is not without risk is documented by Vogt (2002), P. 134 ff., with an informative case study. On the extreme forms of this strategiy using the example of the former Brazilian President Collor de Mello Diehl (2004), P. 203 ff. 88 On the different entertainment approaches of viewers/voters Hasebrink (1998), P. 351 ff. inter alia. 89 Dörner (2001), P. 112 ff., therefore talks pointedly about the entertainment-ising of politics. Talk-shows play a predominant role in this. On the reasons for this Holtz-Bacha (2000), P. 157 f. inter alia. 90 Münkler (2001), P. 146. 91 Postman (1999), P. 154, in this context quotes the former American president Ronald Reagan: “Politics is just like show business”. On this also Dörner (2001), P. 112 ff., who talks briefly about politainment. That has – as well as many other effects – the result that when recruiting and training political staff communications skills have gained in importance and win out at the cost of competence in political matters. On this critically Tenscher (1998), P. 205 inter alia. 92 A high point in this respect was the election campaign for the parliamentary elections in Germany in 1998. At length on this Dörner (2001), P. 116 ff. inter alia; Holtz-Bacha (2000), P. 162 f. 93 At length on this concept and its different variants Nieland/Kamps (2004), P. 11 ff. 83


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es of politicians on popular programmes suddenly shoots up.94 These developments follow a certain logic. (Television) Images of politicians are an important instrument in influencing the opinion of the public (positively).95 Other recent examples can be found everywhere: the increasing significance of talk shows as political forums96, the – not risk-free97 – appearance of leading politicians in television shows98, the presentation of politics as soap operas99 and the increasing entertain-ising of the news programmes.100 Scandal is increasingly becoming a political instrument. With the relevant amount of media coverage it is possible to turn political opponents and their behaviour into a scandal.101 That can bring political advantage but is also extremely risky. Because once launched, scandals can rarely be controlled. Because politics needs television, it goes along with the specific rules and inherent logic of the medium.102 Conversely, the media are dependent on information – as fast as possible, good and exclusive – which only political figures can provide them. Between politicians and media there is therefore a close mutual dependency103, which leads to trade-offs: publicity for the politician against information for the

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Examples from German election campaigns can be found in Meyer et al (2000), P. 65 f. Kaschura (2006), P. 20 ff. looks in an initial qualitative study at the effect on the viewers of politicians’ appearances in popular programmes. Her results – though not representative – tend to find a limited effect from such appearances on voters. An American perspective on this from Postman (1999), P. 162 f. 95 Kepplinger/Maurer (2001), P. 118 ff. Confirm the relevance of visual information for the outcome of the voting decisions of voters based on a detailed empirical analysis of the German parliamentary elections in 1998. 96 Dörner (2001), P. 133 ff. inter alia. The American presidential election campaign has even gone down in history as a “talk show campaign”. At length on this Holtz-Bacha (2000), P. 156 f. inter alia. For an empirical view on this Schultz (2002), P. 182 ff.; Tenscher (1999), P. 317 ff. with empirical material. More sophisticated on this Tenscher/Geisler (2002), P. 175 ff. Generally on talk shows from a media studies perspective Cölffen (2003), P. 200 ff. 97 On the risks which exist for politicians in relation to appearances on popular programmes, Tenscher/Geisler (2002), P. 176 ff. inter alia, and Vogt (2002), P. 134 ff. 98 Tenscher (1998), P. 201 f. inter alia. 99 At length on this using the example of Latin American neo-populism Diehl (2004), P. 203 ff. 100 Meyer et al (2000), P. 166 ff. with many references in the research literature. 101 At length on scandal in a media democracy Saxer (2007), P. 102 ff. inter alia. Mechanisms for creating scandals are revealed by Kepplinger (2001), P. 23 ff. 102 Meyer et al (2000), P. 65 inter alia; de Maizière (2003), P. 41 ff.; Schulz (1998), P. 378 inter alia; Meyer/Schicha (2002), P. 58. An extreme example of this was the Brazilian president in the 1990’s. His body language in the various media to gain and to stabilise power shows very clearly the problems which arise if politics embraces too eagerly the entertainment logic of television. In a nutshell: with Collor de Mello fairly often the boundaries between serious politics and entertaining soap operas seem to disappear. At length on this Diehl (2004), P. 195 ff. inter alia, with examples. 103 Sarcinelli (1987), P. 213, even talks about a “symbiosis” of political and media players. The patterns used to describe the relationship between politics and the media have – like the relationship itself - changed. In a few key words the developments can be characterised in summary as autonomy, interdependency and symbiosis. A critical overview of the theoretical model of the relationship between politics and the mass media is given by Jarren (1988), P. 619 ff.

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journalist.104 But the symbiosis between politics and television does not have any major repercussions: the theatrification of politics105 is well underway. With that – as always – come both opportunities and risks.

7.2.2 Theatrification – Another Kind of Politics What effects does the increasing influence of television have on politics? To put it briefly: both the form and the content of politics are increasingly dominated by the entertainment paradigm. Economic pressure106 to serve the widest possible mass taste, lead in the mass media, and therefore indirectly also in politics, to mediocrity and infantilisation.107 What do the relationships between the causes look like in detail? The public communications of political personalities now take place primarily via television.108 Political players who are not seen on television are not noticed as much.109 Anyone who wants political success has to be on television. This has consequences for all areas of politics.110 The logic of television increasingly influences – as already mentioned above – the form of political interaction and communication. That is primarily a question of communication style, which a voter can choose to accept or reject. Much more contentious is the second development that leads to a theatrification of politics. Not just the form of political presentation, but also the political content is determined using the entertainment approach.111 Theatrified politics is strategically honed to create its effect on the viewer and voter.112 That influences not just the communication of policies, but at a considerably earlier point in time also the development of policies. Political ideas and projects are no longer thought out and only then communicated and implemented via the media. That would be the 104

Sarcinelli (1987), P. 218. Thoroughly on the theatrification of politics Münkler (2001), P. 144 ff. inter alia. Informative on this are the comments from political life by de Maizière (2003), P. 40 ff. 106 On the economic pressures which affect the mass media, Kamps (2004), P. 65. 107 Meyer (2001), P. 119, talks very critically and very visually of a slippery slope of mediocrity and infantilism. Münkler (2001), P. 153 ff., is more reserved, relativising the theatrification of politics in a historic context and with international comparisons. 108 Tenscher (1998), P. 187. 109 Tenscher (1998), P. 187. 110 At length on this Hitzler (1991), P. 201 ff., who outlines a “politician’s dramatology”. Informa tive on this is the typology of politicians in a media democracy presented by de Maizière (2003), P. 40 ff.. 111 On this Jarren (1998), P. 74 ff. with examples from practice. 112 The strategic goal of impact on the viewer is a typical element of performance generally. At length on this performance concept in theatre and media studies Meyer et al (2000), P. 58 ff. inter alia. 105


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classic dialogue in a democracy. In current political practice we see ever more frequently a kind of media trial run by leading politicians.113 Political initiatives are presented publicly as intentions to act. If the media reaction is negative then the plans are withdrawn and re-worked for as long as it takes to pass the media test.114 Policies are therefore increasingly being formed in a process in which both politics and the media determine the content through interaction. Important examples from real life are the central reform plans of the first red-green (Social Democrat and Green Parties) federal government in Germany.115 Possibly the boundaries will disappear completely between politics and media and a politico-media supersystem will come about.116 On television, reality is not – as already mentioned above – just presented and depicted, but is stage-managed. So politics is increasingly stage-managing itself too.117 The daily management of a flow of incidents and events suitable for the media is one of the central strategic instruments of political communication.118 If political demonstrations are to have an effect, they must be organised to suit television.119 Quite often this means that “pseudo-incidents” without any deeper political meaning are created in order to ensure media presence.120 That is not at all the same thing as symbolic ceremonies which do indeed fulfil an important function.121

7.2.3 Politainment: Less Democracy – Or More? The empirically supported diagnosis is clear: politics makes extensive use of symbols and stage-manages political processes according to the dictates of the entertainment industry and the electronic media. The results are less clear. The theatrification of politics embodies – like many phenomena – both opportunities and risks. Symbolic and stage-managed policies are the strategic presentation of the public face of politics in order to obtain acceptance and legitimacy for political reality

113

Meyer (2001), P. 144. Meyer et al (2000), P. 38. In this context Nieland/Kamps (2004), P. 15, talk pointedly of “legitimacy by ratings”. 115 At length on this Meyer (2001), P. 145 ff. inter alia. Other very critical examples are given by Nieland/Kamps (2004), P. 14 ff. inter alia. 116 On the debate about the very controversial convergence of politics and media Meyer et al (2000), P. 39 ff. inter alia. 117 At length on this Meyer (2001), P. 139 ff. 118 Tenscher (1998), P. 189 inter alia. But this is also not totally new. The Nazi’s used to stage “events” for the “cult of the Fuehrer”. On this Schicha (2002), P. 96 ff. inter alia. Informative on this Schug (2007), P. 328 ff., who brings out how the NSDAP propaganda consciously built up Hitler as a “brand”. 119 Bourdieu (1998), P. 29. 120 Critical on this Tenscher (1998), P. 189 inter alia. 121 At length and seminal on the importance of symbols in politics Kertzer (1988), P. 77 ff. 114

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and policy plans.122 In a nutshell: symbolic and staged-managed politics is a form of political marketing. Complex political implications can scarcely be adequately represented by images on television. Media and politics therefore both use symbols: signs and images, which condense complicated content and stand for it. Because the representation of politics using symbols matches the visual logic of television, politics works more and more heavily with symbols. Optimum attention is obtained by politics when the symbols it presents are also entertaining, Therefore we can see a structural change in public communication: public communication is increasingly filled with political symbols, with symbolic policies and infotainment.123 Is that a threat to democracy? Performance, symbolic policies and infotainment – or politainment – are not per se enemies of democracy.124 Quite the opposite, they have considerable democratic potential. Politainment with its mixture of entertainment, tension and emotional involvement can help to build a bridge to understanding more complex factual combinations which would otherwise remain a closed book for most voters.125 The theatrification of politics can therefore also popularise politics – and thus make it more democratic.126 It is very helpful here that television is fundamentally sceptical towards authority and goes with the majority opinion – so is a democratic medium.127 Television reduces distance and sheds light on areas of society which were not previously open to scrutiny. This has a de-mythologising effect on power as a result, which is definitely democratic. At the same time it alters the flows of information and makes it harder to control information. An example: the confidentiality of party leadership meetings is now a fiction. (Audio-visual) media are generally informed immediately after the meeting by various participants. So it becomes more difficult to collect powerful information and use it politically. From the point of view of democratic theory that is basically positive. Along with the secret information the power of secrets also disappears, at least partially.128 But despite its high potential for democratising, the theatrification of politics, or politainment, is of course not free of problems.129 The structures and logic of media systems lead politics and the politicians into temptation: in a “TV democracy” it is tempting to shift the focus of political activities towards the attractive performance, 122

Similarly Dombrowski (1997), P. 17. Similarly Dörner (2001), P. 93 ff. 124 Similarly Meyer (2001), P. 195. That ignores the basic criticism from Postman (1999) about the influence of the entertainment industry on politics and society. 125 Meyer (2001), P. 195. 126 Not least politainment can also be a weapon against disenchantment with politics. On this Holtz-Bacha (2004), P. 32. Very informative on this are the examples of the political content of TV series and soap operas (!) from Dörner (2001), P. 161 ff. with many references to empirical studies. 127 At length on this Meyrowitz (1990a), P. 304 ff. 128 Meyrowitz (1990a), P. 304 ff., on the challenge to authority due to the removal of the time-lag in sharing information. 129 On the risks Holtz-Bacha (2004), P. 33 ff. 123

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and away from the content. Because the wider public does accord recognition to attractively presented symbolic policies, up to a certain point, even if their content is hollow.130 And neither politics nor the media can always resist this temptation. The result is beautifully staged symbolic events, which no longer display any content of substance. In the extreme it leads to politicians staging incidents with a sole aim: so that the mass media report them.131 A different development would be even more problematic. If politics only took place in the form of entertainment, then the public political debate would become apolitical.132 Because then the only relevant things would no longer be political programmes, strategies and decisions, but telegenic politicians, personal liking and irrational questions of taste.133 But that is only one possible outcome, not necessarily the only consequence of the theatrification of politics. Whether politainment leads to more democracy or the degeneration of public communication, depends not least on if and how the management of media communications by society functions.134 The media system is never independent of society. What effect the theatrification of politics has, can be influenced by the public. And they are doing this, as shown by examples. Voter’s acceptance of politainment – as shown by empirical studies – has its limits.135 If politicians go too far with the politainment, then they are not taken seriously and lose credibility, and voters withdraw their support for them.136

7.3 T he Law as Entertainment? – The Logic of Entertainment and the Law The economic logic of the mass media is dominated by print runs and ratings. Because economic success depends on the attention of the audience, public taste becomes the decisive factor for content. In politics – as already mentioned – the effects of this development are already to be seen. What effects would mass media logic have on the law? What must the legal system be ready to expect if it gets more involved in the world of images, which is dominated by the mass media and its entertainment logic? 130 Meyer (2001), P. 195. Seminal for the importance of rituals in politics Kertzer (1988), P. 15 ff. and pass. 131 Schmidt (1994), P. 17. That is partly even stated quite openly by the players. An example of this is the former Prime Minister of Sachsen-Anhalt, Reinhard Höppner, who did however criticise this development sharply: Höppner (1996), P. 6. This phenomenon is not however totally new. Politicians have always staged rituals, to gain, to legitimise and to keep power. On this Kertzer (1988), P. 104 ff. inter alia. 132 On the de-politicising of political communication Kamps (2004), P. 70 f. 133 In this direction Holtz-Bacha (2000), P. 165 f. 134 On this at length Donges/Jarren (1999), P. 85 ff. inter alia. 135 On these limits Holtz-Bacha (2004), P. 33 f. 136 Striking examples of this supplied by Holtz-Bacha (2004), P. 33 f.

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7.3.1 Hit the Ratings with the Law? If you apply the economically dominated (entertainment) logic of the mass media to the legal system, there is one fundamental consequence: the law becomes an entertaining product, which needs to be sold to the general public. Because mass media have to sell print-runs and achieve ratings. The law as an entertainment product137 – what effects would that have? The worst-case scenario might look like this: in the image world of the mass media anything has a right to exist and even has importance, if it interests a lot of people and matches public taste. The law is then not only legitimised democratically if and because it was created by democratically elected bodies. The law can also legitimised by the fact that its content matches public taste.138 To overstate it: there is then a legitimisation by ratings. Court verdicts – a practical but still fictional example – are then not only legitimised by the fact that they correspond to democratically created laws. In addition they need to also match the taste and the expectations of the general public. If they do so, then under the laws of entertainment logic they would also be legitimised by that. That is not necessarily undemocratic. It can – quite the opposite – be true grassroots democracy.139 But it has nothing more to do with the parliamentary democracy which drafted and created the constitution.140 Looking more closely also reveals some other risks. If the law adopts this logic of the mass media as its own, then the threat is that of a populist, superficial law tailored to the entertainment needs of wide swathes of the population.141 Stage-managed “TV-law” is driven by the logic of image entertainment142, and no longer by sober factual texts, discussions and understanding achieved by dialogue and the search for a balance of interests. Two things that are typical of visual communication in the media are painting things black and white and thinking in either/or categories. Mass media have major problems with complexity.143 In fact that is almost tragic. Because images are particularly well suited to presenting complex factual content and phenomena comprehensibly. But the imagedominated mass media miss these opportunities on the whole. That is why they are dominated by – entertaining – simplification and exaggeration. The finer points of

137 Sherwin (2000), P. 141. talks about this. The comparable question about the effects of the economic impart of the mass media on politics is studied by Thomas Meyer (2001), P. 119 ff. inter alia. 138 Thus, exaggerated, Boehme-Neßler (2003), P. 127. 139 At length on the idea of grassroots democracy – and its problems - Sartori (1997), P. 122 ff. On direct democracy in Germany Schmidt (2008), P. 336 ff. inter alia. 140 On the parliamentary democracy of the constitution from a constitutional point of view Hesse (1999), P. 131 ff. inter alia and from a political science perspective Schmidt (2008), P. 298 inter alia. 141 Sherwin (2000), P. 245 warns about this. 142 Thomas Meyer (2001), P. 107, at length on the logic of “image entertainment”. 143 Sherwin (2000), P. 143.


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legal communication cannot be presented on television; at least they do not make the ratings. Whether law like this would still be taken seriously is very doubtful. Because the law really has no entertainment function. If it adopts the entertainment paradigm too far, it loses its seriousness and possibly just because of this it becomes irrelevant.

7.3.2 Speculation: Scandal and the Law Popularised, entertaining law could also in the long-term change the bases and the mechanisms by which the law can be enforced. Until now disgust and scandal have not been defined legal categories. Whether that remains the case is unsure. Possibly publicly-supported disgust could become a legally relevant basis for relevance or an enabling framework. Then it becomes imaginable that deliberately generated scandals could be used to impose legal claims. Visual communication would be an effective instrument for this. Because images in particular, thanks to their emotional content, are well-suited to shocking and breaking taboos.144 And shock and breaking taboos are guarantors of scandal and public attention. This concept is not so absurd as it might appear on first sight. There have indeed been some examples in practice of similar developments. Scandals are really stage-managed in order to achieve certain effects.145 By pressure from the media and public scandal the law – soft law – is quite often imposed, even though it is not itself legally binding.146

7.3.3 Limited Independence – The Law’s Media and Image Resistance Will the law develop in a similar way to politics and other areas of society under the onslaught of images? So will there be – to exaggerate – a mediocre, childish but entertaining form of law? Looking at the problematic developments in politics one might expect this. But there are important structural differences and differences of principle between politics and the law, which mean that the logic of images and the mass media has less of an impact on the law. The law in the end is more resistant to the media and to images than politics, economics or other areas of society. Politics and media almost inevitably rely on each other mutually.147 Political action is directly and heavily dependent on the approval of the voters. Politics in a 144

Examples for breaking taboos using images are given by Frankenberg (2004), P. 34 ff. Kepplinger (2001.), P. 23 ff. 146 See on this above Chap. 4.2.3. 147 Sarcinelli (1987), P. 218. 145

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democracy keeps having to renew its mandate. It also has to keep looking for majorities. This is one of the reasons why politics is so susceptible to the temptation of following the direction of public taste for its content. At the same time the media are dependent on the – ideally exclusive – information that only politics can give them. That leads to the symbiotic relationship mentioned above between the media and politics.148 This mutual dependency is nothing like as strong between the law and the media. Between the legal system and the media there is no symbiotic relationship. The law and justice are not dependent on a direct, democratic mandate from the voters. For the theory of democracy it becomes highly problematic if a court – say the federal constitutional court – did not operate only in the sphere of law, but also became a political player.149 Although: actors in the realm of the law need less publicity overall than politicians. They are therefore better able to pull away from the entertainment-focused logic of the mass media. Although the media resistance of different legal players is very variable. Particularly resistant – so far – are the judges. An important reason for this is no doubt their independence, as guaranteed by the constitution.150 Their appointment does not – at least constitutionally – depend on the agreement of large parts of the population. Another question though is how judges deal in practice with the pressure of public expectations and particularly in high-profile trials, how do they resist the pressure from the media151. Not least the personal vanity of an individual judge could lead to close contacts with the media. That can reduce the media resistance of an individual court.152 Even at the constitutional level the situation is different for public prosecutors. They do not enjoy any judge-like independence. Thanks to their total integration in the apparatus of justice they are open to political pressure. For this reason alone the oft-quoted line from Franz von Liszt that the “public prosecutor’s office is the most objective administration in the world” does not reflect reality but is a myth. Already their overall line manager – the minister of justice – is a politician, who has to justify himself – not least via the media – to public opinion. Legally and theoretically lawyers are not dependent on the public. They could therefore be very resistant to the media and to images. But in practice that is not

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Sarcinelli (1987), P. 218. At length on this see above Chap. 7.2.1. On the federal constitutional court as a political player Boehme-Neßler (2001), P. 372 ff. Very critical on the practice of electing the judges to the constitutional court Landfried (2006), P. 200 ff. 150 On the independence of judges and its central importance for a constitutional state Schütz (2005), P. 182 with many references. But very critical on this Schütz (2005), P. 113 ff., 214 ff. inter alia, who sees judges’ independence threatened on many individual points and who brings out weaknesses in the dogma of the independence of judges. On the personal and actual independence of judges in detail Voßkuhle/Sydow (2002), P. 677 f., 679 inter alia. 151 On this Wagner (1987), P. 87 ff.; Hamm (1997), P. 67 f. 152 In depth on this Holzinger/Wolff (2009), P. 80 ff. inter alia. Very informative on this is also the discussion with Judge Brigitte Koppenhöfer, which is reproduced by Holzinger/Wolff (2009), P. 89 ff. 149


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the case. Lawyers increasingly seek publicity.153 A reputation created through the media helps in landing lucrative clients. Particularly in high-profile trials the media are also manipulated by lawyers to create a favourable climate of public opinion. Litigation PR is on its way to conquering courtrooms and the public arena. Litigation PR is nothing more than strategic publicity work in a legal and courtroom context.154 Like all publicity work it has a goal: it is interested in influencing – firstly directly the public and then indirectly the courts or administrations.155 Whether the administration is immune to media logic is hard to say. The individual public servant does not require a public mandate. He does not need to have a constructive relationship with the representatives of the media. For all employees of public administrations there are indeed strict rules which restrict their relationship with representatives of the media. The requirement of secrecy for public servants restricts the passing of information to the media as does farreaching data-protection legislation. For this reason alone, the administration will not be able to build a symbiotic relationship with the media. It is partly resistant to the entertainment logic of the media. Things look different, however, at the political top level of the public administration. It has to be democratically politically responsible – so also and in particular to the general public. This makes them open to the temptations which a symbiotic relationship with the media offers. This applies with no restrictions to the political lawmakers. Members of parliament are politicians, who – it is required by democratic theory – have to answer to the public. That makes them sensitive to pressure from the media and to the logic of images. Through the members of parliament the media logic has a good chance of “leaking” into the legal system as a whole. That is the price of democracy in a media-driven society. Despite these considerable structural differences, both systems – the law with its sceptical stance on images and the mass media who have fallen in love with images – cannot totally ignore each other. In a democracy the law does not work in a way which is totally detached from the public. At the least indirectly the legal arena also needs to be legitimised by the voters. Therefore the law – even if not as obviously as politics – also has to seek approval. Not every single law and each and every verdict has to get agreement from the populace. But without a fundamental acceptance by society the law cannot really work effectively.156 Or to put it another way: law that is too far distant from the common view of the world of the general population can only be implemented – if at all – using heavy sanctions. That considerably reduces

153

At length on this Holzinger/Wolff (2009), P. 84 ff. with examples. Haggerty (2003), P. 2 f.; Reber et al (2006), P. 24 f. 155 Thoroughly on publicity work and the particular characteristics of litigation PR Reber et al (2006), P. 26 ff. inter alia. 156 Generally on the possibilities and limits of empirical measurement of the effectiveness of legal settlements Raiser (2007), P. 240 ff. inter alia. Seminal for recognising that the effectiveness of law can be measured was Geiger (1964), P. 71 f., who calculates the “effectiveness quotient” of laws. 154

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its effectiveness.157 The necessary closeness between law and population has to be constantly rebuilt – by communication between the law, politics and society. Because this public communication is hardly possible without the media, the law is also dependent on the media – just not to the same extent as politics. The opposite is also true: the media cannot entirely ignore the realm of the law. It is far too relevant to readers and viewers to do so. Therefore the media are also dependent on information which only players in the legal system can provide them. That is the basis for the same trade-off, publicity for information, that characterises the relationship of politics to the media. The conclusion we can draw – slightly exaggerated – is: because the law and the media are potentially dependent on each other, we can expect interaction. The law will therefore not be able to escape media logic completely in the long-term. But this mutual dependency is structurally much weaker than in the relationship between politics and the media. The pressure to adapt is not so high on the law as is the pressure politics is exposed to. The law is therefore more resistant to the media and to images than is politics. But it is not completely immune.

Bibliography Altheide, David L./Snow, Robert P. (1979): Media Logic. Beverly Hills. London. Altheide, David L./Snow, Robert P. (2001): Media Worlds in the Postjournalism Era. New York. Boehme-Neßler, Volker (2001): § 15 Das Bundesverfassungsgericht, in: Raban Graf von westphalen (Ed.): Deutsches Regierungssystem. Munich/Vienna, P. 363 ff. Boehme-Neßler, Volker (2003): Recht als Theater?, in: Zeitschrift für Rechtspolitik, P. 125 ff. Bourdieu, Pierre (1998): Über das Fernsehen. Frankfurt am Main. Brants, Kees (2004): Politische Kommunikation im Zeitalter von Big Brother, in: Nieland, JörgUwe/Kamps, Klaus (Ed.): Politikdarstellung und Unterhaltungskultur. Zum Wandel der politischen Kommunikation. Cologne, P. 93 ff. Bussemer, Thymian (2002): “Nach einem dreifachen Sieg-Heil auf den Führer ging man zum gemütlichen Teil über”, in: Christian Schicha/Carsten Brosda (Ed.): Politikvermittlung in Unterhaltungsformaten. Münster, P. 73 ff. Cölffen, Hermann (2003): Vom Dialog zum Geräusch. Über den Verlust der Sprache im Spektakel der Talkshows, in: Ulrich Schmitz/Horst Wenzel (Ed.): Wissen und neue Medien. Bilder und Zeichen von 800 bis 2000. Berlin, P. 197 ff. De Maizière, Thomas (2003): Politiker in der Mediendemokratie, in: Wolfgang Donsbach/Olaf Jandura (Ed.): Chancen und Gefahren der Mediendemokratie. Konstanz, P. 40 ff. Diehl, Paula (2004): Zwischen Telenovelas und Politik. Die Körperinszenierungen des brasilianischen Präsidenten Fernando Collor de Mello, in: Hauke Brunkhorst u.a. (Ed.): Peripherie und Zentrum in der Weltgesellschaft. Munich und Mering, P. 195 ff. Dombrowski, Ines (1997): Politisches Marketing in den Massenmedien. Wiesbaden. Donges, Patrick/Jarren, Otfried (1999): Politische Öffentlichkeit durch Netzkommunikation?, in: Klaus Kamps (Ed.): Elektronische Demokratie? Perspektiven politischer Partizipation. Opladen, P. 85-108. Dörner, Andreas (2001): Politainment – Politik in der medialen Erlebnisgesellschaft. Frankfurt am Main. 157

At length on this Raiser (2007), P. 257 f.

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Chapter 8

Words and Images in the Law – Looking for the Lost Balance

Modern culture is increasingly and relentlessly shaped by images. That also changes the law. The legal system is simultaneously a producer and a product of the culture of the majority. It can therefore not escape cultural trends long term. Possibly the law will forever remain more clearly focussed on text and shaped by words than other parts of society. But the law will not be able to completely refuse to adapt to the strong trend towards visualification: even the law will – to a greater or lesser extent – become more visual. Images are necessary in the law. At the same time their importance for the law and for legal communication has its limits. Therefore what matters for the legal system is to integrate both text and images and to find the best balance between them.

8.1 Writing and Text: A Basis for the Legal System? Modern legal systems at least are unthinkable without writing and texts. Writing and text are the basis of the legal system. Is the surge in images therefore a problem for the law? How should (or could) images replace writing and text in a modern legal system? A look at the long history of the law shows us: the effectiveness of the law does not fundamentally necessarily depend on whether it is written-durable or oral-impermanent. Oral societies also had effective, well-functioning legal systems. And images were for a long time – for example in the Middle Ages – effective as a means of legal communication. Therefore on first sight one might think that impermanent, pa

Friedman (1989), P. 1579 ff. looks at the close links between the law and culture using the example of pop culture. Sherwin (2000), P. 8. Predicted by Röhl/Ulbrich (2000), P. 357. Thus earlier Katsh (1995), P. 156. Writing and text are stable and create stability. On this Luhmann (1998), P. 260. At length on this see above Chap. 2.4. On the factors on which the effectiveness of a legal system depends Rehbinder (2009), Rn. 111 ff. V. Boehme-Neßler, Pictorial Law, DOI 10.1007/978-3-642-11889-0_8, © Springer-Verlag Berlin Heidelberg 2011

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per-free, oral or visual law is perfectly able to step in and fulfil the decisive functions of the law in a modern sophisticated industrial society. But is that really the case? This point of view, in fact, ignores the importance of the influence of the invention of writing on the development of modern legal systems. Only thanks to writing could the law become as abstract, complex and stable as it is today. Only highlyabstract written law is in a position to grasp and resolve the problems of a complex, modern, sophisticated industrial society. Impermanent, oral law would not be able to meet the requirement of providing certainty for the future in highly complex industrial societies. That can be shown with the simple example of contract law: above a certain level of complexity, only written contracts are in a position to supply security and stability. Oral agreements can only cope with a limited number of layers of legal deals. Completely oral law would therefore be a serious problem for society. Because it could not deliver what society expects of it – and which it relies on. What about a law based on images, that is more strongly shaped by images than by writing and text? Would it be able to produce security and stability?

8.2 Images in the Law – Opportunities and Risks Images are necessary in the law, because they can provide different functions than text, which are important for communication. Visual communication can be more comprehensive than language-based communication and include substantially more aspects, types of information and contents. Images can transmit information which simply cannot be transmitted using text.10 This is true – not only, but particularly clearly – of information about spatial constructs or very complex factual content.11 If the law introduces images further as an additional communication instrument alongside writing, that will certainly have positive effects.12 Images can be a tool for better understanding of ever more complex procedures and factual contents. In this respect the capability of the law can increase if it embraces images with an open heart. This optimistic view must not, however, ignore the risks which are linked to visual legal communication. Because images have a series of specific characteristics which at the same time clearly limit what they can deliver in terms of judicial communication.13 Obviously there are limits to visual communication in the

See on the effects of writing on the development of legal systems at length above Chap. 2.4. Brunschwig (2001), P. 76, compares the different functions of images and texts in the law. Generally on the function of images in communication Gombrich (1984), P. 135 ff. At length on the specific functions of images in the law Brunschwig (2001), P. 69 ff., P. 136 ff. inter alia 10 Hasebrook (1995), P. 113 ff. with examples for this theory. 11 Thus correctly Röhl/Ulbrich (2000), P. 376. 12 Similarly optimistic Katsh (1995), P. 171. At length on this see above Chap. 3.5. 13 On this Brunschwig (2001), P. 106 f. inter alia. Generally on the limits and crossing the limits of images and words Pörksen (1997), P. 163 ff.

8.3 Words and Images – Useful Complementarity and Mutual Reinforcement

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representation of abstract content and concepts.14 Particularly for continental European law, which works with a high level of abstraction, that is a decisive disadvantage.15 Alongside the “abstraction weakness”, visual communication also has other weaknesses which are not visible on first sight. Images and visual communication since the middle of the twentieth century have increasingly been shaped by the electronic mass media – and have become (almost) inextricably linked with them. Therefore there is a risk that the law will not only take on board the language of images, but also simultaneously the logic of the mass media.16 Visualified law would therefore – at least potentially – be shaped by the logic of “image entertainment” rather than being factual and reaching understanding based on dialogue.17

8.3 W ords and Images – Useful Complementarity and Mutual Reinforcement Images therefore have specific communicative strengths and at the same time some very definite weaknesses. The same is true of words and texts. Although the advantages and weaknesses of images and texts are not the same, but rather are complementary. Where images display weaknesses, written text tends to be strong. And vice versa: images can fill the breach when text hits it limits. And this is a major opportunity. For the law it matters that it finds an optimum word-image balance. This allows it to use the strengths of visual and spoken communication and at the same time avoid the weaknesses of both. A successful word-image balance will considerably increase the quality of communication.18 In this case it is not just a question of complementarity, but of mutual reinforcement. Many studies on the psychology of learning show that understanding and retention of information improves if images and text are used simultaneously.19 Like the coats of arms of the sixteenth to eighteenth centuries show clearly, that is not a new insight, but a well-known practice.20 This can also be observed in the area of modern communications – for example in commercial communication, where the 14

On the potential inability of images to represent abstracts, see above Chap. 4.6. Brunschwig (2001), P. 107, wants to compensate for this weakness, by visualising generic-abstract standards using concrete-individual facts. Whether this is a viable approach to overcoming the “abstraction weakness” of visual communication remains to be seen. 16 Sherwin (2000), P. 245. warns very clearly about this 17 At length on the logic of “image entertainment” in the electronic mass media Meyer (2001), P. 107. 18 This can be seen particularly strikingly in the effect of graphic posters. On this Paul (2005), P. 73 ff. Audience research sees the relationship between word-texts and images as a qualitative characteristic of mass media. On this Schütte et al (1997), P. 324 f. inter alia 19 An overview of the research results of the psychology of learning is provided by Weidenmann (1998), P. 243 ff. inter alia. 20 At length on the communicative effect of emblems Gilbert Heß (2006), P. 172 ff. inter alia. 15

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8 Words and Images in the Law – Looking for the Lost Balance

image-text combination is used very deliberately.21 Overall it is certainly true to point out that the images of everyday life in a world of images are not completely devoid of language.22 Images are almost always framed by language: as sub-title, as soundtrack, as speech bubble, as commentary or interpretation.23 Finding a good balance between words and images is therefore no new challenge to communication.24 Ever since images and text have existed, both could be used as instruments of communication. Images and text should not replace each other; they should complement each other.

8.4 Images or Not? The Law in a Dilemma The unbelievable dominance of images in everyday life places the law squarely in a dilemma: the more society, business, politics and culture become visual, the stronger the pressure becomes on the legal system to also open up to images. What should the law do? If it does not yield to this pressure it runs the risk of cutting itself off from everyday life and losing importance.25 If the law has no points of contact with the other sub-systems of society and no common (image-) language, it is no longer important and it loses acceptance. The functions of the law will then be taken over by other parts of society. An example from international economic law supports this fear. International business is not happy with the global, cross-border business law. What is the result? Business creates its own private, contract-based law – the modern lex mercatoria.26 If the law no longer has its fingers on the pulse of everyday life, then a gradual loss of relevance would overtake it. What is the alternative? The law can instead accept and absorb the drive towards visualification. This would mean that the modern law, historically almost completely dominated by written culture, would increasingly combine image and word. The beginnings of this development can already be seen in practice. But the law cannot afford to adapt fully to the images-culture. For then it would no longer be able to deliver on some of its specific functions and would become sidelined. The legal system therefore over the next few years and decades has to successfully negotiate walking a tightrope – between stubborn refusal on the one hand and over-eager adaptation on the

21

On this Messaris (1994), P. 129 ff. Other examples are info graphics in the print media or the production of television news programmes. At length on this Haller (1997), P. 561 ff. and Hickethier (1997), P. 511 ff., partic. P. 522 ff. 22 Assmann (2006), P. 79. 23 Assmann (2006), P. 79. 24 Recent literary research studies are looking intensively at the relationship between text and image in the Middle Ages and the early modern era. In depth contributions on this in Harms (1988). 25 Röhl/Ulbrich (2000), P. 384 f. refer to this in a similar context. 26 At length on this Stein (1995), P. 35 ff.

Bibliography

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other.27 Much depends on this. Because a loss in significance of the law would deeply change society.

Bibliography Assmann, Aleida (2006): Einführung in die Kulturwissenschaft. Grundbegriffe, Themen, Fragestellungen. Berlin. Brunschwig, Colette (2001): Visualisierung von Rechtsnormen. Zurich. Friedman, Lawrence M. (1989): Law, Lawyers and Popular Culture, in: Yale Law Journal 98, P. 1579 ff. Gombrich, Ernst H. (1984): Bild und Auge: Neue Studien zur Psychologie der bildlichen Darstellung. Stuttgart. Haller, Michael (1997): Vertextete oder visualisierte Information? in: Günter Bentele/Michael Haller (Ed.): Aktuelle Entstehung von Öffentlichkeit: Akteure – Strukturen – Veränderungen. Konstanz, P. 561 ff. Harms, Wolfgang (1988): Text und Bild. Bild und Text. Stuttgart. Hasebrook, Joachim (1995): Multimedia-Psychologie. Heidelberg u. a. Heß, Gilbert (2006): Text und Bild in der frühen Neuzeit: Die Emblematik, in: Torsten Hoffmann/ Gabriele Rippl (Ed.): Bilder. Ein (neues) Leitmedium? Göttingen, P. 170 ff. Hickethier, Knut (1997): Fernsehnachrichten als Erzählung der Welt, in: Günter Bentele/Michael Haller (Ed.): Aktuelle Entstehung von Öffentlichkeit: Akteure – Strukturen – Veränderungen. Konstanz, P. 511 ff. Katsh, Ethan M. (1995): Law in a digital world. New York, Oxford. Luhmann, Niklas (1998): Die Gesellschaft der Gesellschaft. Frankfurt/Main. Messaris, Paul (1994): Visual literacy. Image, mind and reality. Boulder/Colorado. Meyer, Thomas (2001): Mediokratie – die Kolonisierung der Politik durch die Medien. Frankfurt am Main. Paul, Klaus (2005): Das grafische Plakat - Bild und Text als gegenseitige Ergänzung, Kommentierung und Paradoxie, in: Martin Scholz/Ute Helmbold (Ed.): Bilder lesen lernen. Wie werden Bilder rezipiert? Wiesbaden, P. 73 ff. Pörksen, Uwe (1997): Weltmarkt der Bilder. Eine Philosophie der Visiotype. Stuttgart. Rehbinder, Manfred (2009): Rechtssoziologie. 6th Edition Munich. Riepl, Wolfgang (1913): Das Nachrichtenwesen des Altertums. Mit besonderer Rücksicht auf die Römer. Leipzig/Berlin (hier zitiert nach dem Nachdruck 1972, Hildesheim/New York). Röhl, Klaus F./Ulbrich, Stefan (2000): Visuelle Rechtskommunikation, in: Zeitschrift für Rechtssoziologie 21, P. 355ff. Schütte, Georg/Staab, Joachim Friedrich/Ludes, Peter (1997): Die Visualisierung von Politik, in: Günter Bentele/Michael Haller (Ed.): Aktuelle Entstehung von Öffentlichkeit: Akteure – Strukturen – Veränderungen. Konstanz, P. 323 ff. Sherwin, Richard K. (2000): When law goes pop – the vanishing line between law and popular culture. Chicago. Stein, Ursula (1995): Lex Mercatoria – Realität und Theorie. Frankfurt am Main. Weidenmann, Bernd (1998): Psychologische Ansätze zur Optimierung des Wissenserwerbs mit Bildern, in: Klaus Sachs - Hombach/Klaus Rehkämper (Ed.): Bild – Bildwahrnehmung – Bildverarbeitung. Interdisziplinäre Beiträge zur Bildwissenschaft. Wiesbaden, P. 243 ff.

27

Accept and integrate or resist and ignore – that is the question, which the law is basically always faced with when confronted with new developments – in whatever area.

Index

A abstraction of law, 133 Abstraction, 76, 132 Administration, 211 advertising, 65, 84 affective viewing, 65 Age of hearing, 75 Age of sight, 75 age of the image, ix Ambiguity of Visual Communication, 69–71 Anarchy of Images, 88–90 anti-biotics, 9 associative, 138 atomic energy, 13 audience effect, 122 authenticity, 161 Authority of writing, 42 B balance between words and images, 220 between the media and politics, 210 brain research, 59 C calligrams, 84 Cameras in the courtroom, 122 Canonic images, 67 Catholic cult of images, 105 celebrities, 196 celebrity and media, 61 Chandler vs. Florida, 120 child as harm, 9 closed-world assumption, 62, 77 Cognition, 4 cognitive psychology, 162 collective memory, 63 colour, 165 commercial communication, 219

common emotions, 160 common experiences, 160 composition schema, 153 Composition, 153 confrontation of opinion and reality, 119 construction of images, 59 contraception, 9 control the impact of images, 153 controlled emotions of rituals, 174 Court buildings, 164 Court liturgy, 173 Court-TV, 121 Credibility of Images, 77–79 cultural revolution, 30 cultural rules for construction of individual images, 63 D Dangers of Performances, 175, 176 decontextualisation of written law, 37 defendant PR, 135 democracy, 28, 31, 32 de-mythologising effect on power, 206 Dictionary of images, 70 Digital technology, 79 Drama and mini-drama, 156 drama of the courtroom, 166 Dual Encoding, 73, 74 E Effigies, 106 Either-Or decision, 41 ekphrasis, 83 election campaigns, 168 elections, 168 electronic media, 119 emotional quotient, 197 Emotions in Legal Communication, 137, 138

V. Boehme-Neßler, Pictorial Law, DOI 10.1007/978-3-642-11889-0, © Springer-Verlag Berlin Heidelberg 2011

223

Index

224 End of Writing?, 53, 54 entertainment effect, 197 entertainment paradigm, 166, 199 entertainment society, 202 entertainment value, 157 Entertainment, 156, 193–200 environmental laws, 11 Equality, 35 erratic, 138 exogenous influences, 4 eye-witnesses, 38 F Faces, 61, 134–137 family structures, 39 Fast Law, 129, 130 fictionalisation of the reality of justice, 122 film and television hermeneutics, 187 Film Grammar, 70 Firearms, 2 football game, 168 Form Follows Function, 127–129 forms of thinking, 60 framing, 162, 163 function of performance, 160 “fuzzy” style, 41 G Generation X, 127 German Constitutional Law, 112 German Federal Constitutional Court, 112 godless law, 34 Golden age of legal rituals, 171 grassroots democracy, 208 Greek alphabet, 22 Gutenberg revolution, 25, 29 H hand-shake as an iconic symbol, 157 hermeneutic autonomy of images, 71 Hermeneutics, 183 hierarchy of human senses, 74 hieroglyphs, 56 Homer, 22 homo sapiens, 86 Hypertext, 53 I Iconoclasm, 101–105 Iconocracy, 52 iconology, 184 iconomania, 51 icons, 56

ideograms, 56 Idolatry, 101–105 Image and text, 86 image falsification, 78 Image Logic, 193 image of justice, 118 image of reality, 196 image reception, 71 Image Stories, 85, 86 image?, 54 Image, 75 Images as Evidence, 131, 132 Images as Eye-Catchers, 126, 127 Images in the Law, 218 image-text combination, 220 immersion effects, 64 impact of engineering and technology on culture, 5 Imperative of Images, 130 Impression Management, 155 individuality, 61 infantilisation, 204 influence of public opinion, 123 information society, 53 Infotainment, 199 integration of text and images, 87 integrative function of rituals, 169 interpretation, 37 Invention, 4 J Judge Joseph Wapner, 120, 121 judges, 210 juridification of society, 34 jurisdiction of emotions, 137 L language, 19, 166 Language Imagery, 83–85 language of images, 69, 88 Law as Drama?, 193–212 Law as Entertainment, 207 law as promoter of technology and innovation, 12 Law in literate societies, 38 law, 11 Law’s Scepticism About Images, 90 Lawmakers, 211 lawyers, 210 Legal Communication, 128–130 Legal Dogmatics, 183, 184 legal iconic symbols, 158 Legal iconography, 185

Index legal iconology, 185 Legal Interpretation, 188 legal processes, 41 Legal System, 217, 218 legal videos, 116 legally relevant truth, 41 legitimacy through procedure, 173 legitimising function of performing, 159 legitimization by ratings, 208 lex mercatoria, 220 linguistic determinism, 20 linguistic relativity, 20 Literate societies, 25 Litigation PR, 211 Logic of Television, 194–199 Logocentric Bias of Law, 106, 107 Luther, Martin, 105 M manuscript culture, 29 Marx, Karl, 3 mass media, 52, 196 Max Weber, 3 McLuhan, 6 mediocrity, 204 memorial function, 55 metaphors, 83 military technology, 2 mistrust of images, 81 monocratic administration, 28 mortality, 53 Myths, 21 N Narration, 21 neuro-imaging scans, 57 neuro-imaging, 8 Neuro-science, 58 non-verbal communication, 127 Nuclear energy, 3 Nuremburg war crimes tribunal, 115 O of images, 62 on criminal trial judges, 123 on justice, 123 oral communication, 22 Oral culture, 23, 39 oral discourse, 41 Oral law, 34 Oral societies, 21, 38, 40 oscillation between idolatry and iconoclasm, 105

225 P Painting, Graphics, Photography, 153, 154 Panofsky, Erwin, 184 parliamentary architecture, 163 patent law, 11 perception of images, 72 perceptive psychology, 67 performance analysis, 187 Performance of the Law, 161–166 performance rules, 156 performative function of writing, 27 personal rights, 35 personalisation of the law, 136 personalised thinking, 61 Personifications, 85 persuasive power of images, 68 pictorial media, 64 pictorial nature of language, 83 Pictorial Turn, 51–53 placebo politics, 175 politainment, 202, 205, 206 Political communication, 202 political marketing, 206 political propaganda, 65 political rituals, 168 politico-media super-system, 205 Politics as Drama, 200–207 power of images, 51 power of technology, 6 principle of praegnanz, 73 printed books, 87 printing press, 29 problem of credibility, 131 product liability laws, 11 promoter of technology, 11 public communication, 199 Public Opinion, 121–123 public pressure, 123 public prosecutors, 210 R ratio scripta, 104 reality of law, 125 recognition, 58 reduction of complexity, 163 reflective images, 57 Reformation, 104, 106 Reichstag, 82, 164 relationship between technology and culture, 4 relativisation of the law, 176 religion, 34 Religious images, 57, 102 religious rituals, 167

Index

226 representational images, 55 reception, 58 ritual character of the law, 172 rituals, 21, 160, 166–170 rules of composition, 153 S Sachsenspiegel, 106 Scandal and the Law, 209 scandals, 114 Scientific and technological developments, 2 scientific revolution, 30 scriptural painting, 84 selection of information, 163 semiotic study of art, 185 Silicon Valley, 2 siren song of abstraction, 61 social behavior, 6 social technique of oppression, 170 Soft Law, 113 source of law, 36 speed of technical innovation, 12 Speed of Visual Communication, 59–60 spoken economy, 26 stage-managed society, 161 Stage-management, 153 Stage-Managing the Law, 158–161 Standard-Setting Power of Technology, 8–10 Standard-Setting, 10–14 Stories, 134–137 Structural analysis, 187 subjectivity, 62 subsemantic side effects, 151 Successivity, 138 symbiotic relationship, 210 symbolic communication, 109 symbolic law, 113 Symbolic legislation, 112 Symbols in Law, 109–112 symbols of justice, 110 Symbols, 107, 108 T tabloid logic, 193 taking each case on its merits, 133 Technical development, 3 technical imperatives, 9 technical laws, 10 Techno-images, 56 technological determinism, 7 technological imperative, 13 Technological Imperative, 7–14

Technophilia, 1–14 Technophobia, 1–14 telecommunications laws, 11 television, 65, 124, 155 The People’s Court, 121 The Rule of Law, 33, 34 Theatre, Film, Television, 154, 155 theatrification of politics, 204, 205 theatrification of reality, 200 Theatrification, 204, 205 Theory of the Theatre, 186 thinking in either/or categories, 208 thinking in images, 61, 138 Transformational analysis, 187 Transformational Power of Law?, 7–14 trend towards personalization, 134 TV democracy, 206 TV reality, 119 TV-court shows, 118 TV-society, 194 U UN, 169 unifying function, 160 United Nations, 111 universe of jurisprudence, 36 US Supreme Court, 120 V visual communication, 66, 115, 128, 131, 151, 152 Visual Law, 193–212 Visual Legal Communication, 126–132, 153, 183–191 visual perception, 72 visual poetry, 84 visualification of modern law, ix visualification tendencies, 115 Visualification, 117 Visualified legal, 132 visualisation function of performing, 159 visualization, 55 W Warburg, Aby, 184 Wittgenstein, 20 world of images, 183 written culture, 40 written economy, 26 written law, 39 Written Law, 39, 41–44

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