Copyright © Tinsley Lockhart 2000
According to the Christian Old Testament version of Creation, in the beginning, there was The Word: "And God said, Let there be light: and there was light." Then God made the Garden, and man to inhabit it, and created the first law: "And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat: But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die." 1
Perhaps in modern times, this warning would have
been expressed thus:
Traditionally, men have attempted to define law with
words, with varying degrees of success -- this is thrust of much jurisprudential
debate. According to Thurman Arnold, writing in The Symbols of Government
"Obviously, 'law' can never be defined. With equal obviousness, however, is
should be said that the adherents of the legal institution must never give up
the struggle to define law, because it is an essential part of the ideal that it
is rational and capable of definition....Hence the verbal expenditure necessary
in the upkeep of the ideal of 'law' is colossal, and never ending." 2 It is
the fear of the decline of the Rule of Law which has kept lawmakers wedded to
the word.
But, how simple and forceful is the icon, compared
to the statute!
We communicate laws, warnings and hazards today by
means of non-verbal symbols. This is largely in response to the need of
lawmakers to communicate laws in a way that the public can understand. Take
children, for example. According to the UK Department of Environment, Transport
and the Regions instruction to Secondary Schools, Road Safety taught as part of
the English Curriculum has, as it's first objective "Communication - non
verbal, signs and symbols, rules ...debate on transport issues ...bringing about
change through use of different media." 3
According to the UK Health and Safety Executive, the
use of warning signs within Europe is governed by EU statute: "The Health
and Safety (Safety Signs and Signals) Regulations 1996 specify minimum
requirements for safety signs at work. They implement a European Directive aimed
at encouraging the standardisation of safety signs throughout Europe." 4
At a basic level, this non-verbal communication
overcomes the language barriers possible in the protection of EC citizens who
have freedom of movement throughout the Member States, who at the same time
require equality of treatment in the protection of personal Health and Safety,
whether or not they speak the language of the country in which they find
themselves.
Today, legal reliance on the word is diminished in a
way that seemed to be anticipated by the jurisprudential philosopher, John
Austin, who said in one of his lectures collected and published in 1832,
"The ideas or notions comprehended by the term command are the following.
(1) A wish or desire conceived by a rational being, that another rational being
shall do or forbear. (2) An evil to proceed from the former, and to be incurred
by the latter, in case the latter comply not with the wish. (3) An expression or
intimation of the wish by words or other signs." 5
Symbols, since Cro-Magnon times,
have been used to communicate, from simple warnings to complex social and
religious concepts. "Both the exclamation mark and the triangle are often
used for warnings. The combination of them is definitely a sign warning for
a danger.
is a traffic warning sign, but this ideogram is also used, for instance, in Oxford dictionaries to warn for taboo words." 6 On the other hand,
"Fu is the name of a sign in Chinese symbolism
for authority, divine power and the ability to judge what is right and wrong.
Thus it is a symbol for justice. It is used in many Western countries
today." 7
The normative aspect of law, according to
jurisprudential thinker, HLA Hart is taught, in contrast to Austin, as
identified in public acceptance of the badge 
as the symbol of authority or power
behind the barrel of the gun. Again, according to ancient use of symbols,
"The five pointed star without crossing lines
is one of the most common and important Western ideograms.... the most widely
used military symbol and... found on the tanks and fighter jets of all the
superpowers, as well as in the armed forces of all other countries on officers
and petty officers' uniforms." 8
In his pamphlet, Trading Identities, Wally Olins
identifies the tendency of nations to adopt the multinational corporate practice
of branding, symbols which represent intangible values, in order to compete for
scarce inward investment resources, tourism revenues, and to establish shared
values amongst their stakeholders: citizens, business investors and tourist
consumers. Historically, nations have used brands to build a new ethos after
national upheaval following revolutions, changes in government, and emergence
from violent or anarchic regimes into new nationhood. Branding is a tool for
ordering society and communicating values. 9
A current example is the recent launch of Scotland
the Brand , 10
which ties in the attempt to attract export revenues
with the rise of national identity expressed in the devolution of the Scottish
Parliament. 11
In branding, the modern method of communication
melds with the traditional role of law. According to Thurman Arnold, symbols are
essential to the function of law in society; "law can be considered a
mechanism of social integration based on the interpretation of societal values,
despite the diversity of individuals' beliefs and aspirations. In Arnold's view
the proclamation and maintenance of symbols -- values, ideals, and ways of
thinking about government and society -- to which individuals can adhere, is a
fundamental task of law by which it promotes social integration." These
symbols are concepts embodying the rule of law and justice, which in practice
are contradictory: "it is through the art of law... that abstract ideals
are manipulated to disguise the impossibility of realising them in practice.
Thus law proclaims symbols so vague or all-embracing that most members of
society can accept and support them in some interpretation." 12
This urgency of expression through brands is magnified by the global interactivity enabled by the Internet. Market definition becomes a matter of populist communication, as anyone who is connected to the Internet has the same power of choice and communication, and e-commerce spans national boundaries.
The management guru Tom Peters, is
an expert on branding, and has been deliberately promoted in Scotland by the
official organisation, Scottish Enterprise as a speaker. 13Writing in the
journal, "Fast Company", he explains, "Today brands are
everything..., the Web makes the case for branding more directly than any
packaged good or consumer product ever could", as Web surfers are faced
with myriad choice of unfiltered information of varying quality. "So how do
you know which sites are worth visiting...? The answer: branding. ...The brand
is a promise of `the value you'll receive." 14
Within the commercial practice of law in the
Internet age, branding is the key to commercial success. According to Peters,
"Nobody understands branding better than professional services
firms....Almost every professional services firm works with the same business
model. They have almost no hard assets -- my guess is that most probably go so
far as to rent or lease every tangible item they possibly can to keep from
having to own anything. They have lots of soft assets -- more conventionally
known as people, preferably smart, motivated, talented people. And they have
huge revenues -- and astounding profits." As the clarity of jurisdiction
erodes with Internet connectivity, the reputation of legal firms will need new,
branded, modes of expression to attract clients. 15
Finally, the role of icons, of symbols in the law,
is now becoming a tool of legal analysis. According to Pamela Gray, in her paper
with video, "Three Dimensional Maps of Legal Logic", the proliferation
of statute and reported caselaw in the modern beurocratic administrative state
at once adds to information overload and the ability of linear logic to decode.
"As the judiciary embraces integrated databases that will permit speedy cut
and paste judgements, mixing extracts from black letter law with extracts from
transcripts of evidence, the legal system is likely to produce faster justice
that might be more complex and more chaotic." 16
She expounds a three dimensional approach to mapping
legal logic, which defines each element emblematically, with tree structures and
one-to-many relationships. The benefits of this system "allow a legal
knowledge engineer to distinguish and manage " not only the "pathways
of reasoning" but also "the adversarial and hierarchical aspects of
the rules of law". 17
Traditional, paper-based methods of collation and reference are inadequate: "The graphical representation of legal logic requires the three dimensional cyberspace of virtual reality." 18
In conclusion, as the word becomes icon, becomes
brand, in the globally-networked, multi-glot world of the Internet, law will
thrive. Not just because of the proliferation of legislation arising out of
e-commerce disputes, or because of the expansion of markets for traditional
legal firms used to trawling for clients only within the compelling media of
their Law Society membership lists, but because the modern adoption of icons for
legal expression will enhance communication, enfranchise citizens and facilitate
analysis. If text is required, there will be reams of it on-line, bringing
hitherto obscure sources of statute and case law to the public view. But the
flexibility of interpretation which icons allow, most importantly, will permit
the law to evolve at the speed which is required in the digital era.
"After this, God gave the creatures of the
earth to Adam to name: "And out of the ground the LORD God formed every
beast of the field, and every fowl of the air; and brought them unto Adam to see
what he would call them: and whatsoever Adam called every living creature, that
was the name thereof." 19
In the branded world, things morph. 20 And the boundaries between words and icons are blurred. 21