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This paper rests on three premises: First, ongoing digitalization is increasing the scale of visualization (still or moving images)¹ and audiovisualization (e.g., videos, audiovisual animations).² This massive technological development is also initiating multisensorization (e.g., humanoid robots and virtual realities).³

Second, many legal and non-legal actors are still unaware of visual law and legal design as fields of scholarly inquiry. I therefore use “visual law” and “legal design” as working terms to delineate these fields. Santuber, Krwawietz, Owoyele, and Edelman recently presented a “framework theory” of legal design. Its “elements are a complex systems approach, Luhmann’s social systems theory and Iba’s work on creative systems, as well as design theory.”⁴ Nevertheless, visual law and legal design remain largely undertheorized. Various attempts to describe and analyze visual law⁵ and legal design⁶ have been made: The title of my PhD thesis (2001) was Visualisierung von Rechtsnormen: Legal Design [Visualization of Legal Norms: Legal Design].⁷ At the time, I regarded the visualization of legal norms as one of many subject matters that formed part of “an unknown and hence hazardous territory, which I called ‘legal design.’”⁸ Originally, I had intended to use “legal design” as the main title and “visualization of legal norms” as the subtitle of my book (yet did not receive my supervisor’s permission). In hindsight, I suspect that my “unconventional” idea was too premature at the time. What I meant by “legal design” was verbal and verbo-visual legal communication design. I was unaware that I had “breached” the boundaries of a much larger legal territory that was waiting to be explored. Today, almost twenty years later, Perry-Kessaris describes legal design as “a nascent field of thinking and practices, the contours and content of which are emergent and contested.”⁹ Central to this field is “a shared interest in how design-based methods and attitudes might be developed in relation to legal matters.”¹⁰ Thus, there is “a commitment to communication, an emphasis on experimentation, and an ability to make things visible and tangible.”¹¹ Based on their framework theory, Santuber, Krawietz, Owoyele, and Edelman define legal design “as a network that articulates the coupling of autopoetic systems. The constructs are (a) human being, (b) creative process and (c) Law [sic].”¹² They perceive legal design “as the redesign of legal systems.”¹³ Hagan calls legal design a “thing,”¹⁴ an “approach,”¹⁵ whose purpose is “to improve the legal system.”¹⁶ She considers legal design “a nascent movement to make the legal system work better for people”¹⁷ or even a “discipline.”¹⁸ While I am unsure whether I understand what Hagan means by “thing,”¹⁹ I grasp her intention to highlight the various ephemeral aspects of the term. These days, “legal design” seems to be a path that we need to take. In itself, the term alludes to an existing community and increasingly implies a field of legal study and practice. Legal design aims to improve the legal system. This goal involves, for instance, making the law “more accessible to lay people,” serving “corporate professionals,” and assisting “policy makers and government officials.”²⁰ Most publications on legal design are concerned with its applications. These include contracts,²¹ access to justice,²² dispute prevention and resolution,²³ e-government,²⁴ legal education,²⁵ and data protection.²⁶ Yet we still lack legal scholarship on the relations between visual law and legal design (i.e., their similarities and differences). The few existing studies fail to clearly distinguish these areas.²⁷ This is, of course, barely astonishing at this nascent stage of research.

Third, I approach the idea of responsible digitalization etymologically. The adjective “responsible” originates from Latin respondēre, that is, to answer (respond) and correspond to something.²⁸ Responsible, then, implies a quality that is required of digitalization.

Based on these three premises, I ask four key questions:

• How does legal research respond to visualization?
• What are visual law and legal design?
• How are visual law and legal design similar or different?
• How might visual lawyers or legal designers act responsibly in the face of ongoing digitalization?

I approach these questions against the background of the basic legal disciplines and law-and areas. I do not, however, focus on any specific legal systems or jurisdictions.

As my working definition of “visualization” (i.e., “legal visualization) is rather abstract, let me illustrate its key elements with a miniature from of the Heidelberg Illustrated Manuscript of the Saxon Mirror folio 28 recto 3 (early 14^th century; see Figure 1).

Figure 1

The mind map beside this illustration shows the core elements of my working definition. On the one hand, “legal visualization” denotes the visualization process (i.e., the production of visualizations; see the right branch of the mind map). On the other, “legal visualization” means the products of that process (see the left branch of the mind map).

From a legal perspective, the visualization process (i.e., producing visualizations) raises several basic questions:²⁹

• Who visualizes legal contents³⁰ – legal professionals, law students, lay persons (e.g., illustrators, designers, computer scientists, or even humanoid robots)? Do these actors freely visualize the law or are they assigned this work? In the latter case, who assigns them? In our example, who illustrated the Heidelberg miniature? Was the illustrator commissioned?
• Why are legal contents visualized (reasons and purposes)? Why, for instance, was this miniature of the Saxon Mirror visually adorned, explained, and illustrated?
• What kinds of legal contents are visualized? Contents can be normative, descriptive, or both. Examples include enacted norms, sections of court orders and rulings, legal scholarship (research and teaching), state and private legal practice (e.g., contracts), legally relevant facts, and so on. In our example, Landrecht (Land Right) III 84 § 3 was visualized.
• Which media (analog, digital, or both, e.g., humanoid robots) are used to visualize legal contents? In our example, the illustrator probably used a quill (Federkiel) to draw the miniature and incorporated it on parchment (I have no details on the colors used).
• Which semiotic codes are chosen? Our example shows that the visual code was used to produce folio 28 recto 3.
• Which visualization methods are applied?³¹ Our illustrator intuitively followed the methods of textual visualization. Today, these relate, among others, to visual rhetoric,³² graphic design, and information design. In our example, the ears (Ähren) are a pars pro toto for the property to be inherited from the man being slain in the image. The illustrator used two methods to visualize these ears: pars-to-toto synechdoche and symbolization. The ears, as the partes of the victim’s estate and as symbols of his estate.

As products, legal visualizations also raise various basic questions:

• Which legal contents appear in verbo-visual or visual form? – In our example, the Heidelberg Illustrated Manuscript of the Saxon Mirror folio 28 recto 3 visualizes Landrecht III 84 § 3. The Heidelberg Illustrated Manuscript of the Saxon Mirror visualizes the contents of territorial or rural law (Landrecht) and feudal law (Lehnrecht).³³
• What are the purposes of legal visualizations? – In essence, the miniatures of the Illustrated Manuscripts of the Saxon Mirror serve to illustrate, explain, and adorn the visualized legal text.³⁴ This also applies to the present example.
• How can we categorize legal visualizations? One’s answer depends on one’s categorization criteria: e.g., image types, visualized contents, purposes of legal visualizations, the types of media used. With the Illustrated Manuscripts of the Saxon Mirror, it makes sense to categorize the miniatures according to the visualized legal contents. “In the Saxon Mirror, one searches in vain for categorizations and systematizations that are common in modern law.”³⁵ Roughly speaking, the miniatures of the Heidelberg Illustrated Manuscript of the Saxon Mirror include either rural law or feudal law.
• In which media do legal visualizations or verbo-visualizations appear (mediality)? – Essentially, the media are analog (e.g., paper, parchment) or digital (e.g., computer screens). Thus, the Heidelberg Illustrated Manuscript of the Saxon Mirror folio 28 recto 3 now manifests in three media: parchment (original version), facsimile (on paper), and digital media (e.g., computer screens).
• How do legal visualizations or verbo-visualizations manifest semiotically (codality)? – They materialize in two codes: visual and verbo-visual. So does our example.
• Which perceptual mode do visualizations or verbo-visualizations appeal to, or which mode are they capable of (e.g., a camera connected to visualizations that records recipient interaction. Thus, the device is capable of “sight.”) (modality)? – Legal visualizations, such as the Heidelberg Illustrated Manuscript of the Saxon Mirror folio 28 recto 3, appeal to the sense of sight.
• Whom are legal visualizations addressed to? – Several renowned princes (Fürsten) are said to have commissioned the Illustrated Manuscripts of the Saxon Mirror.³⁶ The manuscripts even bear traces of their usage.³⁷ However, it seems unclear who the actual addressees were. That aside, and with today in mind, contemporary legal visualizations address both legal actors (e.g., lawyers, law students, judges, prosecutors) and laypersons.
• How do legal visualizations or verbo-visualizations affect their addressees? How do they experience visualizations? How do they behave toward them? With which attitude? – Not knowing their addressees, we are unable to establish the impact of the Illustrated Manuscripts of the Saxon Mirror. Regarding modern legal visualizations, this question might best be answered based on empirical research.
• Which methods help to describe, analyze (interpret), and evaluate legal visualizations and verbo-visualizations? – As a rule, the methods of legal interpretation apply only to texts, such as rules and contracts, last wills (i.e., verbocentric legal hermeneutics). Different types of legal visualizations call for distinct methods of interpretation and evaluation. In our example, I use the (legal) iconographical method to describe and interpret folio 28 recto 3 (see 4.2.1.).

Legal scholars do various kinds of research.³⁸ Among these, doctrinal research is the most important. As a rule, doctrinal legal scholarship starts from controversies over facts (“factual elements”³⁹), from normative problems (“legal elements”⁴⁰), or from other subjects.⁴¹ As Epstein observes: “There is much to dispute in all the areas of law that are part of the modern landscape, including environmental law, antidiscrimination law, antitrust and trade regulation, pensions, taxation, and family law. Each area raises distinctive questions […].”⁴²

Doctrinal legal scholarship analyzes, systematizes, and critically examines positive law (its development and status quo, concepts, principles).⁴³ It acts or proceeds like this in case law (e.g., court, administrative, and governmental practice).⁴⁴ Cases are either real or hypothetical. Further, doctrinal legal scholarship analyzes, systematizes, and critiques other doctrinal legal scholarship (published, for instance, in monographs, collected volumes, and journals). Doctrinal legal scholarship reconceptualizes law by proposing new legislation.⁴⁵ Occasionally, it even drafts new legislation. As a rule, legal scholars, be they academics, practitioners, or legislative actors, neither draw on nor integrate the insights of the humanities, social sciences, and other university disciplines into their research.⁴⁶

Doctrinal legal scholarship intersects with visualization in examining how, for instance, trial lawyers paint mental pictures with words. It also explores how such lawyers use visual metaphors to advance their client’s cause before civil, criminal, or other courts.⁴⁷ Especially US-American legal scholarship deals with these issues because juries – consisting of laypersons – need to be persuaded with words and pictures, whether mental or material.⁴⁸

Figure 2⁴⁹

Otherwise, however, visualization does not seem to be part of doctrinal legal scholarship. Mulcahy confirms this: “the complex interface between law and visual culture continues to be a marginal aspect of legal scholarship.”⁵⁰ Visualization therefore raises several meta-questions: What is and what is not legal scholarship? What is its mission?⁵¹ “[H]ow do we identify a fit subject for legal inquiry?”⁵² Is visualization really fit for legal inquiry?

Epstein finds that “legal scholarship cannot be confined to housekeeping duties.”⁵³ Thus, its agenda cannot be limited to doctrinal legal scholarship but also encompasses (or needs to encompass) interdisciplinary legal scholarship. Such work transcends disciplinary boundaries by drawing on “techniques, vocabulary, and insights from other fields.”⁵⁴ Visual research requires interdisciplinary scholarship. Both the basic legal disciplines and law-and areas conduct visual research.

The basic legal disciplines include visual legal-historical studies. These are oriented toward visual historical studies and art history (iconography studies, a branch of art history, serves as a model for legal iconography). These disciplines also include visual legal theory (visual jurisprudence) and visual sociology of law (which leans on visual sociology).⁵⁵ It is beyond my present scope to consider other basic legal disciplines (or their branches) that deal with visualization (e.g., visual legal pedagogy,⁵⁶ visual legal informatics,⁵⁷ visual philosophy of law⁵⁸).

The law-and areas involve, for example, law-and visual art, law-and visual persuasion, law-and visual culture, law-and sight, and law-and graphic design.

Figure 3⁵⁹

Generally, these fields consider legal visualization “from the outside, from perspectives shaped by other fields of inquiry, […].”⁶⁰

Defining and thus delimiting a research area requires identifying its subject matter and deciding how to establish subareas. Two paths seem feasible with regard to subject matter: First, to establish key concepts.⁶¹ Second, to identify prototypical situations and establish characteristic components.⁶²

In this paper, I have already taken both paths: First, I have mind mapped “legal visualization” as a key concept of visual law (see above 2.). To repeat the key point: “Legal visualization” is both process and product. Legal visualization as a product is a mode of communication that relates to legal or legally relevant contents. Second, my mind map shows the prototypical situation of legal visualization and its characteristic components.

Figure 4 also presents another visualization of the prototypical situation and its characteristic components: actors, processes, contexts, products.

Figure 4

Figure 5 (see below), though not exhaustive, suggests how visual law might be divided into subareas. Visual law, I posit, chiefly includes the interdisciplinary research of the basic legal disciplines and the law-and areas. The former include visual legal-historical studies, visual jurisprudence (visual legal theory), the visual sociology of law (as practiced by legal scholars and by sociologists), and so forth. Among others, the latter comprise law-and visual art, law-and visual persuasion (including visual evidence and visual argumentation), law-and visual culture, law-and sight (an approach common within law-and the senses), law-and graphic design (common in legal design). These subareas have special subject matters, which are related to the subject matter of visual law (see Figure 4).

Figure 5

Before outlining visual legal-historical science, I consider two visual approaches in or subareas of historical science: historical image research (historische Bildforschung) and visual historical studies (visuelle Geschichtswissenschaft). Legal-historical science as a rule adopts insights from historical science, a significant neighboring discipline.⁶³ Hence, it cannot afford to disregard historical image research and visual historical studies.

Historical science assumes that history also manifests visually and investigates how images relate to history. Under the label “historische Bildforschung,”⁶⁴ German-speaking historical science explores this relationship from various perspectives and studies diverse topics, including “pictorial material as sources of historical facts and circumstances”⁶⁵ and the “critical evaluation of image sources.”⁶⁶ Such source criticism collects visual sources,⁶⁷ determines their theme(s),⁶⁸ and classifies them.⁶⁹ In doing so, historical image research considers in which spatial, temporal, social, economic, political, legal, technical, and cultural contexts these images emerged. Historical image research also explores textual sources, which describe and analyze how images relate to history.⁷⁰ Adopting approaches from historical science and art history, this research area understands “works of art and visual works in general as bearing witness to a historical era […] and attempts to derive knowledge from them about the past.”⁷¹

Modern recent history and contemporary history have been transcending historical image research by setting forth visual history⁷² or rather visual historical studies.⁷³ This field reflects on “images in a broad sense both as sources and as independent objects of historiographic research.”⁷⁴ Visual historical studies examine the “visuality of history” and the “historicity of the visual.”⁷⁵ The ongoing large-scale expansion of visual media and their contents, especially moving images (e.g., visual animations, video and film images), has initiated the transition from historical image research to visual historical studies. The former predominantly focuses on medieval and early modern visual sources⁷⁶ (e.g., paintings and printed graphics,⁷⁷ drawings, reliefs, etc.). These works are still (i.e. unmoving) images.⁷⁸ Visual historical studies, however, investigate the entire spectrum of visual sources.⁷⁹ This also includes moving images⁸⁰ – regardless of whether these are works of art, or what Elkins calls “nonart images.”⁸¹ Hence, visual historical studies suggest a “new” notion of what images are.⁸² This leads visual historians to inquire: “Are the images used in the research [on; my insertion] historical artifacts, or are they constructed by others and used as a way to view historical artifacts?”⁸³ Visual historical studies also focus on the mediality⁸⁴ and communicative features⁸⁵ of images. Investigating what images mean historically,⁸⁶ visual historians consider content (e.g., persons, objects, animals, plants, space, time, and other contextual elements), form (perspective, composition, framing), and narrative elements (e.g., actions, conditions, processes).⁸⁷ Visual historians thus aim to answer questions such as “What is the approach to the evidentiary value of the visual image? Is it analysed as a displayer of facts or purposeful construction of a particular viewpoint?”⁸⁸ Other questions include: What was or is the historical purpose(s) of these visual sources?⁸⁹ How do they refer to other images (interpictoriality)? How (and by whom) were these sources distributed,⁹⁰ and received?⁹¹ How were they perceived?⁹² How were they used?⁹³ And how do they not only represent but also construct realities?⁹⁴

Visual historical studies also explore the (historical) impacts of visual sources,⁹⁵ as well as the digitalizing of these sources and their long-term archiving.⁹⁶ In order to analyze and evaluate the historical meaning of visual sources, visual historical studies adopt a methodological pluralism, which includes iconographic and iconological methods,⁹⁷ semiotic methods,⁹⁸ and the methods of (visual) sociology.⁹⁹ This pluralism seems to contrast with historical image research, which limits itself to the iconographic and iconological method.¹⁰⁰ The questions and reflections of visual historical studies go beyond historical image research and include: “How does the setting of the presentation affect the image’s presentation?”¹⁰¹ Production-related questions include who created visual sources, who influenced their creation,¹⁰² how they were created,¹⁰³ and in which contexts.¹⁰⁴ Given the great variety of topics, visual historical studies rely on insights from various disciplines (e.g., art history, communication studies, media studies, (visual) sociology, semiotics, and Bildwissenschaft, i.e., image science).¹⁰⁵ The growing significance of visual historical studies might lead to a new research direction within legal-historical studies: visual legal-historical studies (see next section).

The legal past has handed down various kinds of sources, including images and texts. Although legal-historical studies examine the relations between legal history and images,¹⁰⁶ they mainly focus on verbal sources and hence consider legal-historical images to be secondary sources.¹⁰⁷ These “secondary” sources visualize past law.¹⁰⁸ Two branches of legal-historical studies in particular explore the relationship between images and legal history: (historical) legal iconography and legal iconology. German-speaking Rechtsikonographie (legal iconography) emerged in 1989.¹⁰⁹ Legal iconographers speak of “Rechtsikonographie,” implying that this field also involves iconological issues. To simplify matters, I will do so, too, although I usually distinguish legal iconography and legal iconology.¹¹⁰ Legal iconography has an intradisciplinary and an interdisciplinary orientation. It draws on legal archaeology (Rechtsarchäologie),¹¹¹ legal folklore (Rechtliche Volkskunde),¹¹² and legal symbolics (Rechtssymbolik),¹¹³ as well as art studies¹¹⁴ and the historical sciences. In German-speaking scholarship, the book series signa iuris promotes legal-iconographical and legal-iconological research.¹¹⁵ The key issues of (German-speaking) legal iconography include establishing what legal images are,¹¹⁶ which criteria might serve to classify such images,¹¹⁷ and how they might be delimited from non-legal images.¹¹⁸ Legal iconography studies the purposes of visual sources (functional approach),¹¹⁹ as well as creates and makes accessible collections of analog and digital legal images. Legal iconography contributes to curating image collections and plays a significant part in scientifically supporting and evaluating legal image databases.¹²⁰

The term “legal iconography” not only denotes a legal-historical subdiscipline. It also means to methodically describe and interpret legal images (iconographic approach),¹²¹ as well as to understand such images in terms of the legal, religious, social, and other contexts from which these visual sources emerged (iconological approach).¹²² The iconographical approach aims to determine the legal content and, if required, the deeper legal meaning of visual sources. In illustrating the iconographic approach, I follow van Straten’s multi-phase procedure.¹²³ This approach differs from Kocher’s: In order to deduce an “overall legal message”¹²⁴ from visual sources, the Austrian legal iconographer suggests “squeezing” the multi-phase procedure into a single phase. Yet this approach risks confounding the three iconographical phases and the iconological phase, and thereby neglecting important aspects of iconographic or iconological analysis.

Figure 6 shows folio 28 of the Heidelberg Illustrated Manuscript of the Saxon Mirror. I have highlighted the third row of the miniatures (see rectangle) and raise three questions: What does this miniature show (first phase, pre-iconographical description)? What is its legal subject matter (second phase, iconographical description)? Does it or do some of its elements have a deeper legal meaning (third phase, iconographical interpretation)?

Figure 6

We see three men. The first man has a beard and is falling on his back. With his right hand, the man in the middle stabs the bearded man to death, while his left hand reaches out to clutch some ears (Ähren). Both men are wearing similarly colored clothes. The third man on the right grabs the ears while touching or pushing away the man in the middle.

The illustration gives Landrecht III 83 § 3 as its textual source: “Totet ouch ein man sinen vater. Ader sinen bruoder. Ader sinen mac ader immman de des eigenes. Ader lenes wartende is. Al sine wartunge hat he vorlorn. […].” “If a man kills his father, his brother, his kinsman, or someone belonging to the allod [fully owned estate] or fief [feudum] for which he is awaiting, he voids his grant in expectancy totally. […] [insertions added].”¹²⁵ The respective miniature transcodes this text, while specifying it with a concrete case.

Both the left man’s beard and the ears have a symbolic meaning. The beard denotes that an older man is represented, i.e., the father of the young man in the middle. The ears stand as a pars pro toto for the property to be inherited. The facts of the case are that a son kills his father. The legal consequence is that since the son’s action disqualifies him as a heir under applicable law (Landrecht), the third man (on the right) is entitled to the estate. His seizing of the ears symbolizes this entitlement.

Against this background (i.e., legal history’s relationship with images in the form of legal iconography), how does the latter relate to historical image research (historische Bildforschung) and visual historical studies (visuelle Geschichtswissenschaft)? By considering iconological issues, legal iconography might move in a direction similar to historical image research. But legal iconography is not (yet) systematically and critically examining how textual sources grapple with visual legal-historical sources. Nor has this field begun embracing the insights of visual historical studies. This makes it difficult to recognize what might be called visual legal-historical studies. What does this mean? Well, despite the large-scale expansion of visual media and their contents since the late 20^th century, (German-speaking) legal iconography has not expanded its traditional concept of legal images. Thus, it neither covers the entire range of visual legal-historical sources nor has it considered whether it ought – mutatis mutandis – to follow visual historical studies. Its methodological spectrum remains limited, as the field has so far not drawn on the insights of communication studies, media studies, image science, and other disciplines. Take, for example, legal elements in visual sources. Kocher has suggested four categories of elements: persons,¹²⁶ realia (e.g., movable and immovable corporal things, animals, plants),¹²⁷ gestures,¹²⁸ as well as external and internal image texts.¹²⁹ A glance at visual historical studies suggests that this classification needs to be refined. In terms of images (Abbilder), I therefore propose the following classification:

Might these these categories also be applied to non-representational images (nicht darstellende Bilder)? As a rule, such images do not contain persons, corporal things, or narrative elements. Such images include charts (visualizations of qualitative relationships and processes), diagrams (visualizations of quantitative relationships), maps, abstract forms, e.g., some types of notary signets (Notarsignete). These types of images are already or will become more significant for legal-historical science.

Visual legal-historical studies might also explore:

• Which media incorporate visual legal sources (e.g., parchment, mural, stone, canvas, wood, paper, post card, computer screen)?
  • How do the media in which visual legal sources are incorporated affect these sources?
  • How do media and their contents impact the production, distribution, reception, and perception of visual legal sources?
  • …
• The history of
  • the legal-historical discourse on visual sources
  • legal-historical image archives, image collections, image databases and “libraries”
  • the digitalization and long-term preservation of visual legal sources
  • visual legal-historical studies, their research and teaching projects, and scholarly events
  • ….

Despite the pressing challenges of visualization, my suggestions will probably still seem utopian: visual historical studies are only just beginning to establish themselves.¹³⁵ This suggests that, at some future point, legal historians will need to observe the insights of historical science, its neighboring discipline, and of its visual branch, visual historical studies. When that happens, we will have to determine the requirements to be met by visual legal-historical studies.

Visualization is not yet a major topic in legal theory. Even so, let us briefly consider visual jurisprudence – that is, what might be called visual legal theory.¹³⁶

Figure 7¹³⁷

I make six fundamental points:

First, legal theory examines (basic) legal concepts.¹³⁸ For instance, it asks “What is law?”¹³⁹ By analogy, it could also ask: What is “visual law”?

Second, legal theory is “not confined to positive law;”¹⁴⁰ it “transcends [legal; my insertion] systems.”¹⁴¹ It concentrates neither on a particular legal system¹⁴² nor on a specific branch of law.¹⁴³ According to McLeod, “[…] legal theory involves a progression from the study of laws to the study of law.”¹⁴⁴ Visual law could thus be studied beyond the confines of a specific legal system or a particular branch of law.

Third, legal theory describes how law is organized.¹⁴⁵ It could thus suggest how to systematize visual law (see Figure 5).

Fourth, legal theory is not oriented toward doctrinal legal research.¹⁴⁶ This also applies to visual jurisprudence.

Fifth, legal theory is concerned with methods.¹⁴⁷ It involves, for instance, methods aimed at determining the meaning of oral or written legal statements (i.e., hermeneutical methods).¹⁴⁸ Where producing written or oral texts is concerned, legal theory investigates rhetorical methods.¹⁴⁹ Regarding visual jurisprudence, the method of visual rhetoric is paramount for producing visualizations.¹⁵⁰ With respect to interpreting legal visualizations, traditional legal theory (which focuses on written or oral texts) has not (yet) been developing what I would tentatively call visual legal hermeneutics.¹⁵¹ Thus far, legal methods and legal methodology are verbocentric.

Sixth, legal theory is concerned with theories¹⁵² and could therefore develop descriptive and explanatory theories, for instance, of visual law. The structural models presented here approach a descriptive theory of visual law, because they make explicit assumptions about its subject matter (see Figure 4) and its branches (see Figure 5). Media theory, for instance, offers visual law an explanatory theory because it seeks to explain why legal visualization emerges. More specifically, media theory shows how digital media and their contents affect law. Thankfully, Collins, Skover, and Katsh predicted some time ago that “the coming age of electronic media will rework law as profoundly as the printing press once did.”¹⁵³ Considering law in a digital world, Katsh states: “The varied possible uses of visual communication mean that different facets of law will likely employ the visual in different ways.”¹⁵⁴ Elsewhere, he observes that the “new technologies bring us closer to graphical means of communication, […].”¹⁵⁵ These reflections constitute one of the first important components of an explanatory theory of legal visualization, and hence also of visual law.

Status and scope

Sociology consists of general sociology and specific branches.¹⁵⁶ Although mainstream sociologists still consider images to be peripheral,¹⁵⁷ visual sociology has emerged in recent decades as one branch of sociology,¹⁵⁸ is increasingly gaining recognition,¹⁵⁹ and producing more and more publications.¹⁶⁰ The progressively greater significance of visual sociology might contribute to establishing a new research direction within the sociology of law: the visual sociology of law (see below).

What might “a decidedly sociological perspective on images, films, and other forms of visual communication”¹⁶¹ look like? Visual sociology focuses on images as “objects of investigation in their own right.”¹⁶² As such, these artifacts introduce “an entirely new type of information into the discipline of sociology as a whole.”¹⁶³ As a field of research and teaching,¹⁶⁴ visual sociology “employs images […] to analyze society […]”¹⁶⁵ because it views them as social phenomena.¹⁶⁶ As such, it explores how images relate to society¹⁶⁷ and are sources of social information. Visual sociology explores visual society or, put differently, the visual in society. It comprises manifold approaches.¹⁶⁸ Despite its image-based epistemological thrust, visual sociology also raises meta-questions: “Are images per se a proper object of inquiry for sociologists […]? Or is it more appropriate to treat them as an important, but hardly defining, dimension of traditional subject areas [of sociology, my insertion]? What about the visible social world, or imagery of the social order? Are these at the heart of sociological inquiry, or are they footnotes, appendices, oddities?”¹⁶⁹ Below, I concentrate on images, methods, and theories.¹⁷⁰

Visual sociology studies the production of images and images as productions or products.¹⁷¹

Visual sociology regards image production as a social practice¹⁷² and investigates the contexts in which this creative visual acting or doing occurs.¹⁷³ It is also concerned with its own visual practice, which involves gathering visual data and visualizing sociologically relevant contents. Today, sociologists gather visual data, particularly by photographing or filming “the visual dimensions of social life.”¹⁷⁴ In visualizing mental, spoken, or written contents, they produce, for instance, “maps, graphs, tables, charts and models […].”¹⁷⁵ Visual sociologists also reflect on (their own) visual practice, considering visual media (e.g., photographic cameras, video cameras, and film cameras) and their deployment in the research process.¹⁷⁶ They examine why they or other actors produce images, for instance, “to communicate within a community that can understand that information and for which it must have some importance”¹⁷⁷ and “to manage social relations.”¹⁷⁸

In order to reflect on society, visual sociologists use images,¹⁷⁹ which provide the framework for visual-sociological analysis.¹⁸⁰ Key issues include sociological concepts of images,¹⁸¹ the various types of sociologically relevant images,¹⁸² sociologically relevant image contents and their functions,¹⁸³ the social significance of images,¹⁸⁴ observing and explaining the social effects of images,¹⁸⁵ communication with images (e.g., usage,¹⁸⁶ distribution, contexts, visual strategies¹⁸⁷), and how social actors, above all sociologists, relate to images.¹⁸⁸

Given these many issues, I confine myself to sociologically relevant contents, i.e., images that contain social contents.¹⁸⁹ In other words, “images [can; my insertion] constitute rich sources of information about quite varied aspects of social […] life.”¹⁹⁰ Such images visually describe, interpret, and construct those aspects.¹⁹¹ They involve, for example, “social issues,”¹⁹² “portraits of sociologists”¹⁹³ or other social actors, social roles,¹⁹⁴ social status,¹⁹⁵ social problems,¹⁹⁶ interpersonal relations,¹⁹⁷ person-object relations,¹⁹⁸ social behavior¹⁹⁹ (“social interactions,”²⁰⁰ communicative actions) in various contexts, social processes,²⁰¹ and the effects of social and legal norms.²⁰² In summary, “images focus on the visible aspects of objects and social situations, that is, they shape abstract ideas, thoughts, notions, phantasies as visible.”²⁰³

Essentially, sociological methods are verbocentric.²⁰⁴ Visual sociology, however, “[…] is committed to using visual methods for research […].”²⁰⁵ On the one hand, these methods involve visually analyzing society by producing images; on the other, they concern analyzing visual society, i.e., socially relevant images.

Visual sociology considers image production theoretically and practically. Both approaches inquire how to produce images and seek to fathom “the intellectual prerequisites of this activity […].”²⁰⁶ Further, it considers visual media (e.g., “cameras, minidisk recorders, handheld positioning system receivers, eye-tracking machines, and many other emerging technologies”²⁰⁷) to be “methodological instruments to achieve empirical data and produce new sociological knowledge ([…]).”²⁰⁸

There seem to be two main approaches: visual social data gathering²⁰⁹ and visualizing sociologically relevant mental, oral, and written contents.²¹⁰ Sociologists perform the first task themselves or assign others (often the subjects of sociological research) to produce relevant images: “In this type of research, recording devices are handed over to subjects. Examples include drawings by children ([…]), their photographs ([…]), […].”²¹¹ Sociologists gather visual data by taking a certain perspective and by embedding the selected persons, objects, events, actions, situations, etc.²¹² in the image frame (composition).²¹³

Applied visual sociology produces images in practical contexts. For instance, in child abuse investigations images or imaging techniques are used as they apparently “elicit the most reliable and valid information” and “encourage free recall by jogging children’s memory with photographs or imaging excercises.”²¹⁴

Analyzing visual society has many facets. These include visual data acquisition, the visual perception of the social environment, describing and interpreting images, and visual communication, which “is organized socially.”²¹⁵

Visual sociologists search for and collect images,²¹⁶ and hence also have recourse to visual databases.²¹⁷ They select images that enable investigating specific research topics²¹⁸ and “working on a specific research problem […].”²¹⁹

Visual sociologists explore how people perceive their (social) environment. Images may be part of this context and hence allow scholars to study perceptions²²⁰ and inquire how a specific environment impacts image perception.

How social actors perceive images affects their descriptions and interpretations. Visual sociologists are “concerned with the meanings of a culture’s visual representations […].”²²¹ They also describe and interpret “the content of a set of images […]”²²² or the content of particular images.²²³ Performing this analytical work, visual sociologists do “not focus on images alone but take the social practices and contexts of image production, interpretation, and use into account.”²²⁴ Therefore, apart from image content, contextual aspects play a role in more deeply understanding images.²²⁵ Regarding image content, “various dimensions and aspects of social worlds are analyzed.”²²⁶ Visual sociologists raise various questions:

According to Breckner, (visual) sociology has not yet developed a comprehensive visual theory.²³⁹ Based on a growing number of studies, visual sociologists are attempting to advance a visual theory, among others, by systematically revealing the subject matter and methods of visual sociology.

Their descriptive theoretical approaches address various questions: What are sociologically relevant images? How does visual sociology delineate them against sociologically relevant texts? What functions do images have in society, particularly in sociology?²⁴⁰ How significant are images in society, specifically in sociology?²⁴¹ Descriptive theoretical approaches develop visual methods and therefore a visual methodology.

Explanatory theoretical approaches: “Explanatory theories formulate a hypothesis about the causal connections between something requiring explanation and a factor that serves as the explanation for the phenomenon under scrutiny.”²⁴² In reality, however, mostly more than just one hypothesis or factor are at stake. Visual sociology connects the social sphere with images, and thereby also considers the technological and economic factors impacting this relationship. Visual sociology as such seeks to understand and explain why images are increasingly emerging in society and sociology. Today’s ongoing digital transformation is creating images by technologically facilitating visualization.²⁴³ Straightforward access to visual media (and their affordability) is also fostering visualization.²⁴⁴ The increasing permeation of everyday life with moving and still images is also generating new ways of dealing with visual phenomena.²⁴⁵

Status and scope

The sociology of law is a subdiscipline of both law and sociology. It is practiced by legal scholars and by sociologists, although with different epistemological interests.²⁴⁶ In this paper, I concentrate on the sociology of law as practiced by legal scholars. Drawing on the insights of law²⁴⁷ and sociology,²⁴⁸ the sociology of law investigates how law and social life impact each other.²⁴⁹

The sociology of law studies the interplay of law and human visual actions (which are increasing in today’s increasingly visual world). Another reason for investigating this interplay is that sociology understands “manners of acting, thinking, and feeling in society”²⁵⁰ as social facts requiring empirical exploration. Legal facts are relevant to the sociology of law.²⁵¹ “Empirical social research on law is also called research of legal facts.”²⁵² Legal facts relate to legal reality²⁵³ or legal life.²⁵⁴ Given that legal and other actors act with and through images, the sociology of law examines the resulting visual legal facts. It describes, analyzes, and explains in which contexts, how, and to what extent legal and other actors act with and through legal images. Here, “contexts” are both legal contexts – legislation, positive law, legal practice (e.g., visual court practice, visual e-justice, visual lawyering, visual prosecuting, visual e-government and administration, visual policing), and legal science (e.g., visual legal research and visual legal education) – and extra-legal contexts (e.g., mass media, visual art).

In 2001, Röhl and Ulbrich observed that “sociology is only now beginning to discover the significance of visual communication.”²⁵⁵ This view is somewhat astonishing given that “modern visual sociology began as part of the rejection of dominant paradigms during the 1960s.”²⁵⁶ There appears to be a time lag of at least 40 years in (German-speaking) sociology of law. Whereas German-speaking sociology of law does not explicitly have recourse to visual sociology,²⁵⁷ English-speaking scholars have pointed to visual sociology²⁵⁸ and suggested how to outline a visual sociology of law.²⁵⁹

The analog age, which preceded today’s digital world, can be divided into three periods: oral-aural, manuscript, and print.²⁶⁰ Considering the analog-to-digital transition, Struck notes: “On the edge to a new era, we feel like fish that have lived in the Niagara headwaters and are now sucked into the waterfall; these fish will not know what hit them and, being halfway, will struggle to develop a theory of the waterfall.”²⁶¹ Although visual sociology is not strongly present in German-speaking legal-sociological discourse, it discusses issues that touch on the visual sociology of law. I introduce some of these issues below and suggest which other points of visual sociology that the visual sociology of law could take up mutatis mutandis.

Production

Sociologists of law collect visual data that have been produced for various legal contexts. Langer, for instance, reviewed legal-educational literature (181 publications) to establish whether, how many, and which types of images this literature contains.²⁶² To my knowledge, sociologists of law have not yet photographed or filmed “the visual dimensions of”²⁶³ legal life or legal reality. Sociologists of law consider the visual actions of persons or institutions within and outside the legal context. Extra-legal actions include the images of law created by artists, the mass media, and other non-legal actors (e.g., laypeople). While sociologists of law have thus far not reflected on their own visual actions, they nevertheless visualize the content of their (empirical) studies (e.g., in form of tables or tabular overviews,²⁶⁴ column diagrams,²⁶⁵ and other types of legal images). Further, they examine the intentions of the authors or users of legal images, among others, in legal-educational literature²⁶⁶ or legal teaching.²⁶⁷ In conclusion, I posit first that (legal) actors produce legal images to convey knowledge or information about the law and second that legal images are produced to enable people to better cope with law.

Sociologists of law study legal images to reflect on legal life. They consider and develop the legal-sociological concept of “image.” They also discern the types of such images,²⁶⁸ the image contents relevant to the sociology of law, the functions of legal images,²⁶⁹ their significance²⁷⁰ and (potential) effects,²⁷¹ how and to which extent (legal) actors communicate with and through legal images (e.g., usage, distribution, persuasive strategies²⁷²), and how legal actors (e.g., sociologists of law) behave toward these images.

In terms of contents, images relevant to legal-sociological discussion convey information about various aspects of legal life or reality – i.e., how does the living law manifest visually? Examples include visually apparent law in action, i.e., “[…] what legal institutions [and legal actors; my insertion] do, and how they do it.”²⁷³ Further, depictions of legal actors and legal institutions may visualize legal roles: “Who occupies legal roles – lawyers, judges, policemen [prosecutors, law professors; my insertion] – and what do the role-players do?”²⁷⁴ These visuals may also provide information about the status of legal actors. Considering judges, Moran raises various questions: “What images of judges are used in the news stories that are made under the current prohibitions on image-making in courts? What aesthetic traditions do these images draw on? What role do these images play in telling (and selling) news stories? What do pictures of the judiciary in newspapers tell us about the judiciary and judicial authority?”²⁷⁵ These questions could also apply mutatis mutandis to other legal actors. Images that pertain to the sociology of law may visualize legal problems, interpersonal legal relationships, legal relationships between persons and things, interactions among legal actors in various contexts, legal events, visible social functions and effects of law, etc. Which media convey images with such contents?

The visual sociology of law examines how (legal) actors produce legal images²⁷⁶ and which knowledge these actors must have for this purpose. It also explores the methods that need to be applied in order to cope with already created images that are relevant to the sociology of law.

Regarding the production of legal images, the sociology of law needs to query how its actors could apply the methods of visual sociology mutatis mutandis to the sociology of law.²⁷⁷ In analyzing the visual dimensions of legal life, the aspects that I mentioned above are also relevant: visual legal data acquisition, visual perceptions of legal life, describing and interpreting legal images,²⁷⁸ and visual legal communication. Visual sociologists of law search for and collect images that help explore the visual dimensions of legal life (as yet, however, there seem to be no databases of modern legal images). Based on such images, they study how people perceive and interact in legal life. Further, they focus on how legal situations impact perceptions and hence how actors describe and interpret these images. According to Silbey, “Translating images into words in order to compare them to what we understand through sight is a troubling problem for law. We need to be sure of the facts contained in the image, the relevance of the image, its perspective, its potential bias, its partiality, and its ambiguities.”²⁷⁹ In turn, Röhl observes that legal images “acquire meaning from the history of their making and from the way they are used.”²⁸⁰ The questions relevant to visual sociology (see above) could be transferred mutatis mutandis to the sociology of law. They include: What kind of legal-sociological knowledge is needed to describe and interpret legal images? What information can we gain from legal images that is relevant to the sociology of law? For instance, what is the factual or normative meaning of such images? Do they help answer factual or legal questions, or both?²⁸¹ How do these images represent legal actors and things? What kinds of legal events are visually evident? How do the legal or extra-legal contexts of legal image production influence how such images are described and interpreted?

Visual sociology, as suggested, has thus far not developed a comprehensive visual theory, even less so the sociology of law. Two approaches might help advance theorizing. The first are descriptive approaches, which raise questions such as: How might we describe images that are relevant to the sociology of law? How could we define such images in the context of texts that are relevant to this discipline?²⁸² How significant are (legal) images in legal life or reality for the sociology of law? How to develop visual methods or a visual methodology for the sociology of law? Second, explanatory approaches seek to understand why images are increasingly pervading legal life,²⁸³ that is, why “the law as well – has gone visual.”²⁸⁴ Both approaches (descriptive and explanatory) concern how digitalization is visually impacting legal life. Obviously, technical factors play a part: “[…], digital technologies make it much easier to produce, modify, and disseminate pictures (and sounds), people without special training or skills can express their thinking visually and share it with others.”²⁸⁵ With society relying increasingly on visual communication, societal factors are also contributing to legal visualization.²⁸⁶ Economic factors, too, are promoting the growing visualization of law: “What is different today is that digital tools have made it […] cheaper for just about everyone to create, modify, and deploy pictures of all kinds.”²⁸⁷ Explanatory approaches belong to “social theories of law.” These “deny, altogether or in large part, any notion of legal ‘autonomy.’ That is, these theories try to explain [visual; my insertion] legal phenomena by searching for causes and causal factors ‘outside’ the legal system.”²⁸⁸ As such, they regard law as a dependent variable. They “assign a leading role in molding the shape of legal institutions and legal arrangements to systems or subsystems that society defines as ‘non-legal,’ that is, as economic, social, cultural, or political.”²⁸⁹ Present and future theoretical approaches are likely to produce a theory of visual sociology of law at some stage.

In the English-speaking world, law-and visual art is rooted in law-and the humanities (see Figure 5). It is a subfield of this area.²⁹¹ Law-and the humanities also encompasses, for instance, law-and the image, law-and architecture, as well as law-and literature.

Douzinas and Nead have observed that “The relationship between law and [visual; my insertion] art can be analytically distinguished into two components: law’s art, the ways in which political and legal systems have shaped, used, and regulated images and art, and art’s law, the representation of law, justice, and other legal themes in art [my emphasis].”²⁹² “Art’s law” amounts to “engaging with what works of art can reveal about law, […].”²⁹³ Taking up this classification, Behrmann calls the representations of law, justice, and other legal themes “image-rules.”²⁹⁴ Her concept implies, however, that all these representations have obtained legal force, which is not always the case. For example, pictures of (Lady) Justice, court buildings, legal norm images used for educational purposes, contract visualizations, and so forth do not enter into legal effect like νόμοι (nómoi, statutes). Instead of “image-rules,” I propose the term “legal images.” Law-and visual art appears to be limited to works of art.²⁹⁵ However, legal visualizations without artistic value seem to fall off its epistemological grid. Unlike legal iconography (i.e., visual legal-historical science), law-and visual art focuses on doctrinal legal research, that is, the legal regulation of (legal) images.²⁹⁶

Especially in the United States, “adventurous lawyers and receptive courts are now taking advantage of ubiquitous picturing tools to argue, explain facts in litigation documents.”²⁹⁷ In order to advance their case, trial lawyers apply “visual strategies,”²⁹⁸ among others, using images as evidence or as arguments.²⁹⁹ If courts embed images in their opinions, to underscore their factual or legal considerations, I would not subsume this practice under law-and visual persuasion.³⁰⁰ In calling this visual judging, I am aware of using a term that falls out of the law-and discourse.

Friedman ekes out two meanings of the term “legal culture.” First, “ideas and attitudes about law which […] lay people hold.”³⁰¹ Second, “books, songs, movies, plays and TV shows which are about law or lawyers, and which are aimed at a general public.”³⁰² Law-and-visual-culture studies take into account both meanings³⁰³ and examine their interrelations.³⁰⁴ Hence, on the one hand, this concerns laypeople’s mental images of law and lawyers. On the other, visual legal culture manifests in “material” (still and moving) images of law. Other (mass) media besides those listed by Friedman include journals, magazines, and the Internet.

In high visual culture, law appears as a visual phenomenon (i.e., as visual legal art). As observed, Douzinas and Nead call this “art’s law, the representation of law, justice, and other legal themes in art.”³⁰⁵ Take, for example, paintings of Lady Justice, or graphic illustrations of courtroom scenes and executions. Thus, the two law-and areas, law and high visual culture and law and visual art, form an interface.

Mass media that visually communicate about the law³⁰⁶ mostly participate in “low” (i.e., popular) visual culture. As such, they publish legal or legally relevant pictures. Without claiming to be art, they portray legal actors (e.g., lawyers, judges, law professors, prosecutors, defendants, litigants), represent legal objects (e.g., the inside or outside of courthouses, prisons, parliaments), or legal events (e.g., court scenes, execution of sentences, conclusion of contracts, negotiations). Studies in law-and-visual-culture examine how images of the law correspond to law, as well as resemble or differ from it.³⁰⁷ Examples include “the images of law in popular visual forms, highlighting the disjunction between the stories and characters on-screen with the reality of legal practice.”³⁰⁸ Legal images of popular culture “may distort the law and its admirable purposes and processes.”³⁰⁹ On one side, law-and-visual-culture studies explore how and to which extent images of the law affect laypeople.³¹⁰ Such images may lead laypeople in particular to form negative ideas about legal life.³¹¹ On the other side, law-and-visual-culture studies consider how and how far images of law affect legal actors: “The shift in communication practices toward visual representations, including videos, computer-based animations, and reenactments, also reflects the growing influence of the visual mass media on the way trial lawyers represent their clients’ interests.”³¹² Such impact studies are part of audience research and also fall within the remit of the visual sociology of law.

Take law and the senses – in our case law-and sight: In Law and the Senses, Bently asks: “How does law sense? […] How does law control or regulate our senses? How does law use our senses? Which [of our; my insertion] senses does law use?”³¹³ Thus, how does law address sight? What does law look like?³¹⁴ Our eyes enable us to acquire legal knowledge and know-how, predominantly by looking at and reading written texts. Exceptionally, we gain such knowledge and know-how by looking at and analyzing visualizations. Visual law reinforces law’s “perceptual and epistemological bias ranking vision over other senses.”³¹⁵ It promotes and upholds legal ocularcentrism.³¹⁶ This raises concerns about audiovisualization and multisensorization in our digital world. I will return to this point.

It is impossible to determine the subject matter of legal design (its key concept and prototypical situation) without referring to design research.

Maldonado, a renowned design theorist, maintains that the term “design” is becoming increasingly fuzzy and vague.³¹⁷ In his keynote at the 2011 “INTERACTIONeleven” conference,³¹⁸ Buchanan, a well-known professor of design theory, practices, and entrepreneurship,³¹⁹ observed: “Design has no subject matter.”³²⁰ He later commented: “We make our subject matter.”³²¹ Thus, does legal design have no subject matter either? Do we also make legal design’s subject matter? And who is “we”?

Figure 8

Notwithstanding Buchanan’s assertions, I would argue that “legal design” is both process and product (i.e., what is designed during this process, something that refers to law or is related to law).

The prototypical situation of legal design consists of four characteristic components: processes, products, actors, and contexts.

• Processes:
  • Which media (analog or digital) are used to design communicative contents, products, services, interfaces, etc.?
  • Which semiotic codes does such design involve?
  • Which design methods are used? In communication design, this would include visual rhetoric.³²²
• Actors:
  • Who is a legal designer: legal professionals, law students, lay persons (e.g., illustrators, designers, computer scientists, or even humanoid robots)? Whom do legal designers act for? Design studies calls such actors users, clients, customers, and consumers.
  • Why are information, products, services, interfaces, etc. designed (reasons and purposes)?
  • Which sensory modalities (e.g., vision and touch) does the design process or receiving, using, or adopting what is designed involve?
  • How does legal design impact designers and their users, clients, customers, or consumers?
• What is designed? Tangible (i.e., material or immaterial) output (e.g., graphics,³²³ information,³²⁴ communications, (industrial) products,³²⁵ services,³²⁶ interfaces, etc).
• Contexts: In which contexts does legal design play a role? In the legal context, relevant spheres include legal research, legal education, legal practice, and legislation.

As mentioned, the term “legal design” is increasingly fuzzy and vague. It is neither clear which subareas it encompasses nor which societal levels it is relevant to. Some suggestions are therefore warranted. The insights of design research³²⁷ suggest how legal design might be subdivided. Figure 9 proposes, for instance, graphic design, product design, service design, interaction design, software design, and architectural design as important subareas (see left side). The right side indicates which societal contexts or rather levels are at stake: the micro-, meso-, and macro-level.

Figure 9

Building on these insights, I suggest that the subareas of legal design include: legal graphic design, legal product design, legal service design, legal interaction design, legal software design,³²⁸ legal architectural design,³²⁹ and so on. Other possible terms for graphic design include information design³³⁰ or communication design. The term “product design” also invokes “engineering design” and “industrial design.”³³¹

Design, and thus also legal design, can occur on a micro-, meso-, and macro-level. Hence, legal designers are “socially located actors.”³³² What does this mean? “[T]he micro-level involves individuals acting out of their own states of agency and their interactions with other individuals.”³³³ The meso-level refers to “organizations or corporate actors.”³³⁴ The macro-level encompasses “society as a whole”³³⁵ and “large-scale social structures and institutions.”³³⁶ If legal designers act on their own or interact with other legal actors or laypersons, they are working on the micro-level. If legal designers act as employees or mandatees of organizations (e.g., industry, banks, insurance companies), they do so on the meso-level.³³⁷ The same applies to legal designers employed by public authorities (e.g., administrative agencies, governments, courts). If the state as a whole, or the legal system, committed to legal design, they would do so on the macro-level.³³⁸ The boundaries between these three levels are fluid.

Let me cite d’Anjou’s apt views on design’s subareas and its association with various non-design disciplines:

In a broad sense, design refers to those disciplines involved in changing existing states of affairs into preferred ones. It concerns not only disciplines like architecture, urban design, interior design, graphic design, and industrial design, to name a few, commonly associated to design but also others like medicine, engineering, law, etc., that are equally engaged with the purpose of making a difference in and changing the state of the world. ³³⁹

The subareas of design studies have particular subject matters. These, in turn, relate to the subject matter of legal design. Below, I comment merely briefly on legal communication design, legal product design, and legal service design. There is no room to consider legal interaction design,³⁴⁰ legal software design,³⁴¹ and legal architectural design.³⁴²

As early as 1936, Rodell lamented that two things were “wrong with almost all legal writing. One is its style. The other is its content.”³⁴³ Inspired by models that represent the domains of graphic, information, and communication design,³⁴⁴ I would describe legal communication design as a field that tackles not only the problem of style observed by Rodell but also that of typography, layout, and the lack of images in legal communication.³⁴⁵

Figure 10

Legal communication designers produce verbal and visual artifacts that concern various issues: legislation, positive law, legal science (including legal education and legal research); the practices of courts, governments, and government agencies; private legal practice (e.g., the lawyering offered by law firms and by in-house counsels); legal and legally relevant facts; other legally relevant contents.

From a design perspective, “a product is usually understood to be a physical object […].”³⁴⁶ If it is a digital object, it is hardware. However, the term “product” also includes software. According to product design experts Ulrich and Eppinger, product design defines “the physical form of the product to best meet customer needs.”³⁴⁷ Within this setting, “the design function includes engineering design (mechanical, electrical, software, etc.) and industrial design (aesthetics, ergonomics, user interfaces).”³⁴⁸ Engineers and industrial designers perform this function.³⁴⁹ This raises the question whether we ought to imagine legal actors as “engineers” and “industrial designers.” I believe we should, at least to some extent. Why?

Figure 11³⁵⁰

Legal product design interfaces with legal informatics. Legal informatics addresses IT-related legal problems (legal-doctrinal focus) and transposes the insights of informatics to the legal context (interdisciplinary focus).³⁵¹ Legal information scientists develop and teach basic hardware and software knowledge and skills (tools and methods). As such, legal informatics focuses on digital legal products, that is, digital legal technology (e.g., the automated drafting of legal documents, such as contracts, wills, or bylaws).³⁵² There is an ongoing debate on the informatics knowledge and skills that legal information scientists should acquire.³⁵³ In today’s digital world, this question also applies to lawyers. Fenwick, Kaal, and Vermeulen claim that “In the digital world, […] lawyers will not only have to work closely with their traditional professional partners such as accountants or financial advisors but also with engineers, designers, architects and other technical experts and specialists (depending on the particular project/transaction).”³⁵⁴ Hence, the insights of legal product design might very well enrich interdisciplinary legal informatics in the future – and vice versa, of course.

Looking ahead to visualization, audiovisualization, and multisensorization: Should lawyers be able to code legal databases containing visualizations and audiovisualizations? Should legal actors know how to code the software of humanoid robots for the purposes of legal education or visual legal persuasion? Do they need this knowledge to work in a virtual reality law firm?

Legal services are provided by lawyers or other legal actors to clients.³⁵⁵ These actors can be natural persons or “intelligent machines”³⁵⁶ (e.g., humanoid robots). Navas claims that artificial systems such as humanoid robots do not provide legal services but automatically create legal products.³⁵⁷ Thus, legal services and legal products are now even harder to distinguish.³⁵⁸ Her assertion not only contradicts the design discourse but also the discourse of service management, which basically upholds this distinction.³⁵⁹

Figure 12

Legal services are provided in the private and public sector. In the private sector, lawyers offer clients advice and guidance on their rights and duties (provision of legal information as part of legal counseling). Other tasks include reviewing legal documents (e.g., contracts, wills, and bylaws) and representing clients in civil and public law cases. In the public sector, and from the perspective of public management, the state also renders legal services: For example, courts, governments, and administrative agencies offer legal information; notary offices certify contracts; universities as state-funded institutions provide legal education and conduct research. But what happens when the insights of design impact legal services?

Figure 12 (see above) depicts the prototypical situation of legal service design and its characteristic components.³⁶⁰ For clients, problems³⁶¹ and opportunities³⁶² are at stake. In applying the insights of design, legal actors think and feel in a client-centered way³⁶³ and approach their clients’ concerns in a solution-oriented manner. Legal design theory distinguishes a problem and a solution space.³⁶⁴ Lawyers, for example, focus on their clients’ needs,³⁶⁵ desires,³⁶⁶ and preferences.³⁶⁷ Their services are desirable,³⁶⁸ usable,³⁶⁹ and useful.³⁷⁰ My model (Figure 12) integrates the ideal traits of (legal) service providers.

Have you ever met a lawyer who was genuinely optimistic about winning a case? All I have ever heard is: “I can’t promise or guarantee anything” (or “the outcome depends on X, Y, and Z”). From a design perspective, state-funded research (e.g., research conducted at public universities), which – I repeat – could be viewed as a legal service, meets or should meet the needs, desires, preferences of the general public. Besides, such research is or should be desirable, useful, and usable. In this way, design discourse might productively intervene in the debate over academic freedom and the relevance of research for society, business, and industry. Regarding legal services in the public sector, design and particularly legal service design become additional dimensions in the discourse on public management where the dimensions of law, economics, political science, and other related fields are already playing an important role.

Both visual law and visual legal communication design or produce visualizations. The contents of these visualizations are normative, factual, or both. The actors, their aims, and their action contexts are similar.

Figure 13

Despite the similarities between visual law and legal design, several differences are worth noting. Whereas visual law focuses on production and products, legal design mainly focuses on producing.³⁷¹ As d’Anjou observes:

Science sees the world as an object to be observed, understood, and known whereas design sees the world as a project to be transformed, invented, and brought into existence. Science seeks what is out there and design creates what ought to be here. Science pretends to objectivity, design accepts subjectivity. Design, as a mode of human inquiry and practice, is concerned with bringing into existence, through projecting, making, and transforming, an artificial world in terms of both material and immaterial domains.³⁷²

Contrary to Anglo-American scholarship, I maintain that visual law is limited to visualization.³⁷³ US and British scholars subsume visual and audiovisual legal phenomena under visual law. But audiovisual law (which is also a working term like “visual law”) concerns (or at least ought to concern) audiovisualization (e.g., videos, movies, audiovisual animations). Legal audiovisuals require visual and auditory media or rather multimedia (mediality), involve visual and acoustic signs (codality), and address sight and hearing (modality). These basic factors have consequences for visualization as a process and visualizations as products or productions. For instance, the methodological requirements for interpreting legal visuals differ from those needed to interpret legal audiovisuals. Multisensory law (also a working term) concerns multisensorization (e.g., humanoid robots and virtual realities).

From a legal design perspective, the audiovisual and multisensory design of legal communication lies beyond the interface between visual law and legal design. The same is true of legal product design, legal service design, and probably legal interface design. Designing legal products, and therefore their design (e.g., virtual realities and humanoid robots), is per se multisensory.

We have thus far considered how visual law and legal design respond (or rather do not respond) to visualization, audiovisualization, and multisensorization.

Thus, in terms of responsible digitalization, the topic of the International Legal Informatics Symposium 2020, how should visual lawyers and legal designers correspond to law,³⁷⁴ professional standards, and digital (legal) ethics? According to Mitcham, “The most fundamental ethical question concerning design is this: To what extent is this new way of being in the world desirable or good?”³⁷⁵ Based on this and other questions, design research establishes human-centered criteria, regardless of whether communication, product design, or service design is concerned.³⁷⁶ As such, design must fit “the human body and mind.”³⁷⁷ Buchanan maintains that “design has a more important role to play in promoting human well-being [than just pragmatically oriented design; my insertion].”³⁷⁸ More specifically, what is designed must be needed,³⁷⁹ desirable,³⁸⁰ or at least preferable.³⁸¹ It ought to be usable,³⁸² useful (functionality),³⁸³ and sustainable. Klein and Phillips argue that traditionally “sustainability calls for policies and strategies that meet society’s present needs without compromising the ability of future generations to meet their own needs.”³⁸⁴ Sustainable design refers particularly to the impacts of the designed communication, products,³⁸⁵ and services³⁸⁶ on ecology,³⁸⁷ society,³⁸⁸ the economy,³⁸⁹ technology,³⁹⁰ and health.³⁹¹ Product design, for instance, should create artifacts that are not only socially,³⁹² economically, and ecologically³⁹³ sustainable,³⁹⁴ but also technologically.³⁹⁵ Regarding technological sustainability, humanoid robots deployed in legal education, for contract visualization, or other legal purposes, would need to be maintained, repaired, and replaced. In terms of social sustainabilty, such robots would need to be designed so as to positively affect individuals and society.³⁹⁶

Figure 14³⁹⁷

Legal communication design needs to be addressee- or recipient-centered.³⁹⁸ Thus, verbally, verbo-visually, or visually designed communication should be true, correct,³⁹⁹ clear,⁴⁰⁰ relevant,⁴⁰¹ accurate,⁴⁰² and appropriate.⁴⁰³ Accordingly, when they produce legal visualizations, visual lawyers also ought to comply with these criteria. Beyond satisfying ethical requirements, visual and verbo-visual legal information should also be aesthetically pleasing.⁴⁰⁴

According to Posner, “[d]octrinal scholarship continues […] to dominate legal scholarship.”⁴⁰⁵ Thus, this kind of scholarship does not explore visualization, audiovisualization, and multisensorization, unless doctrinal questions are concerned.

Figure 15

Levinson has called upon law to free itself “from the iron cage of doctrinal analysis and be willing to look to other approaches […].”⁴⁰⁶ These include, as I have suggested, visual law and visual legal communication design. Figure 15, however, suggests that while the two fields deal with visualization, they do not cover audiovisualization and multisensorization.⁴⁰⁷ Once again, these are the domains of the basic legal disciplines and specific law-and areas (see Figure 15).

Visual, audiovisual, and ultimately multisensory interdisciplinary research “enrich[es] the study of legal issues, […].”⁴⁰⁸ Since this research is multidimensional, its scholars strive “to advance and promote improvement of their profession and its institutions.”⁴⁰⁹ Without any problems, such research can be “subjected to the test of relevance, or practical impact.”⁴¹⁰ This makes it interesting not only for legal academia but also for legal practitioners (e.g., lawyers, judges, public servants) and legislators. Multisensory interdisciplinary research is not anti-doctrinal but aware of its own interfaces with doctrinal legal scholarship. For instance, legal norms cannot be visualized or audiovisualized without considering their interpretation by legal doctrine.

In this light, interdisciplinary legal research on visualization, audiovisualization, and multisensorization needs more recognition, including more institutional and financial support. Considering this aspect, Epstein notes that “the structure of the academic legal marketplace exerts a powerful influence on the nature and direction of legal scholarship. The largest returns from scholarship rightly belong to those individuals who break the traditional mold and find genuinely new ways of analyzing legal materials.”⁴¹¹ He adds, highly appropriately, that we “are becoming more and more a designed and a designing society”⁴¹² – and, as I wish to add, also a visualizing, audiovisualizing, and multisensorizing digital society.

Although digitalization is rapidy advancing, it is unclear how long visual, audiovisual, and multisensory interdisciplinary legal scholarship will take to adopt the insights of the relevant non-legal disciplines. Once more, Epstein wisely observes that, in the past as much as today, “intellectual developments from other disciplines have taken time to work themselves sensibly into the fabric of law. Sorting out the useful from the curious, erroneous or irrelevant takes time.”⁴¹³ It remains to be seen how interdisciplinary legal scholarship on visualization, audiovisualization, and multisensorization will evolve. Its development can be expected to depend on the level of funding and institutional recognition.

Legal academia is likely to challenge my outline of visual law and legal design. Even Buchanan, a strong advocate of design as rhetoric,⁴¹⁴ is still pondering the nature of design.⁴¹⁵

For the time being, I suggest we continue using “visual law” and “legal design” as working terms. More research is required to clearly delineate these areas. To interpret legal visualizations, we need to borrow insights from disciplines that have already developed a visual hermeneutics: humanities scholarship (e.g., iconography, learning psychology) and social sciences scholarship (e.g., educational psychology). Porter suggests that courts “should develop interpretative traditions”⁴¹⁶ for legal visualizations. Almog has extended this notion by suggesting that the “law will have to acknowledge the shifts in visual cognizance entailed by the digital condition.”⁴¹⁷ Thus, the knowledge and know-how of the basic legal disciplines will need to be linked to the law-and areas dealing with visualization. These areas will thus cross-fertilize each other and advance more smoothly as their topical, methodological, and theoretical spectrum becomes enhanced at their newly emerging interface. Visual law allows us to look at visualization from the perspective of various basic legal disciplines and law-and areas. These are bound to broaden the horizon of legal visualization, not only as a practice but also as a subject of scholarly inquiry.

To outline legal design, I have drawn mainly on insights of design studies and, in part, on perceptions of legal design studies. It would be interesting to examine publications on legal design as to whether and, if so, how they take recourse to design studies. The question about what “visual law” and “legal design” mean “is not merely a dispute about words but about subject-specific contents and thus about responsibilities and the division of labor within the basic [legal; my insertion] disciplines.”⁴¹⁸ Some day, “the need for institutionalization as an independent discipline”⁴¹⁹ will arise.

This perspective inevitably raises further questions: Will sight continue to dominate law?⁴²⁰ What would visual legal hermeneutics involve, for instance, in terms of interpreting visualizations embedded in contracts, bylaws, last wills, and so forth? So far, the “verbal discourse about drawing[s; my insertion] has remained in an unnecessarily primitive and undeveloped state. […].”⁴²¹ How to be a visual lawyer or a legal designer? What would we have to do to attain a “[p]rofessionalism based on knowledge and skills”⁴²²? Are visual lawyers and legal designers not merely amateurs who pretend to be professionals?

With respect to visualization, visual law and legal communication design (as a branch of legal design) resemble each other. Visual legal-historical studies, visual legal theory, the visual sociology of law, law-and visual art, law-and visual persuasion, law-and visual culture, law-and sight, and legal communication design are all interrelated. Delimitation sometimes proves to be difficult as visual law and legal design are subject to intra- and interdisciplinary influences. They are interconnected fields. As such, they adopt, integrate, and deploy insights from legal and non-legal disciplines. Apart from that, visual law and legal design are not congruent endeavors.

On that account, we should not play these fields off against each other. Both deserve support. Their advocates should wish that neither becomes the dominant approach to visualization. As Wagner remarks, “If new intellectual communities affirm the visual as a rejection of traditional disciplines, they lose the opportunity to build on the considerable contributions those disciplines have made to visual inquiry – even if such contributions are not central to the traditional discipline itself.”⁴²³ Otherwise, legitimate research focuses would be unnecessarily limited, just as important issues would be downplayed. At the International Legal Informatics Symposium or elsewhere, I have therefore opposed “radical” visual law or “radical” legal design.

I am under no illusion that visual law and legal design are (or will be) the solutions to all problems in the legal context. I do, however, believe that both areas are (and will be) able to tackle problems and questions that otherwise would be dismissed. Commenting on the introduction of a new term or concepts, Passini states that this “must be fully justified if it refers to new notions, or if it signifies profound changes in established practice.”⁴²⁴ I see “visual law” and “legal design” as umbrella terms that suitably cover various legal and legally relevant phenomena. Potentially, these terms will lead to “profound changes in established” legal research, legal education, legal practice, and legislation.

Design research has been developing guidelines for how legal designers and, by implication, visual lawyers might act responsibly in the face of ongoing digitalization. Future research needs to work out how these guidelines relate to law and digital (legal) ethics. The question also arises how digital legal ethics could benefit from the insights of ethics (as a branch of philosophy) in general, and of legal ethics (as a branch of legal philosophy), and digital ethics (as a branch of digital philosophy) in particular.

I have explored how legal research has been and is responding to the growing tendency toward visualization characteristic of today’s digital world. I have also outlined visual law and legal design, examined how these two areas are related (similarities and differences), and considered what visual lawyers and legal designers should do to act responsibly to digitalization.

In his textbook, Vesting, a leading German legal theorist, considers whether digitalization prompts an iconic turn in the legal context:

By constrast, it seems the diagnosis of the “visual shift” falls short. Surely, one can easily demonstrate [or identify; my insertion] a series of phenomena, which point in the direction of an “iconic turn”. Richard Sherwin has depicted [or described; my insertion] the infiltration of visual popular culture into US American law, for instance, with the example of the adoption of cinematic constructions of reality in a trial by jury [rather: in jury trials; my insertion]; Cornelia Vismann observes in the [ sic] Medien der Rechtssprechung a new openness of (international) courts to audiovisual digital technologies, which she interprets as permeability for [ sic] extrajudicial demands and influences. Moreover, it is predictable that the computer will include and change the operational mode of legislation, administration, and case law in an entirely different way, a development that may be detected on the level of administration, for instance, in the recent developments of the [ sic] “electronic government” and the [ sic] “administrative information law”. But insofar as schematic scenarios of decay of the conceptual legal culture are connected with the rise of visual media and the computer – that is, diagnoses of a visualization of juristic thought, of a “flood of images”, in which the “writing culture” of law is threatened with drowning – the thesis of the [ sic] visual shift is not convincing. ⁴²⁵

If I were a law student today, I would feel discouraged by these observations, not least because they are made with the leverage of professorial authority. I would be disheartened to ever explore visualization, let alone audiovisualization and multisensorization.

It is perhaps too early to determine whether a visual, audiovisual, or even a multisensory turn is occurring in the legal context. While I agree with Vesting that the verbal code will remain the most important in legal communication, I would challenge his denial of the significance and bearing of legal visualization and audiovisualization. Thus, somewhat astonishingly, a legal theorist specializing in media theory ignores multisensorization (i.e., virtual realities and humanoid robots).

Put mildly, visualization, audiovisualization, and multisensorization are unorthodox subjects in the eyes of doctrinal legal scholarship. They are avant-garde – or indeed “hot” – topics even for interdisciplinary legal scholarship. Yet they will potentially contribute to changing how legal scholars understand “what constitutes […] scholarship.”⁴²⁶ Those who engage with an interdisciplinary perspective risk burning their fingers. This is especially true of legal scholars. Leslie Moran’s experience resembles mine:

The multifarious gatekeepers of legal studies have responded in a variety of ways to scholarly and pedagogic projects that turn away from law’s written text and its operationalization. In my experience from giving papers and talking to lawyers and judges, these range from bewilderment, disbelief and passive aggressive indifference to more open attacks and withering denuntiations that dismiss work that touches on the visual aspects of law as esoteric, trivial, “not law.” ⁴²⁷

Such experiences make it imperative to shed more light on the digital dimension of law. Let me take this cue and conclude with some questions and brief answers (neither are final, of course):

• How far and how should interdisciplinary legal scholarship continue to explore visualization, audiovisualization, and multisensorization? It would be important for scholars to recognize the interconnectedness of these issues, which are studied by various basic legal disciplines and law-and areas. This paper marks a first attempt to demonstrate this interface in terms of visualization. Awareness of the similarities and differences between the basic legal disciplines and the law-and areas also needs to grow.
• To whom and how should such scholarship communicate its insights? I raise this question because most legal actors still only seem moderately interested in those matters – despite their relevance. It is of no use to publish if pertinent publications in legal journals and collected legal volumes do not reach a larger audience. It would make sense to publish scholarship on visualization, audiovisualization, and multisensorization also in non-legal media. A non-legal audience would probably respond more openly to these topics. It might therefore pressure the legal guild to take these issues seriously and to promote them rather than marginalize them.
• As my paper suggests, particulary the basic legal disciplines and law-and areas deal with visualization, audiovisualization, and multisensorization. In the future, will we need a discipline that encompasses all these disciplines and areas? I would say so. In the case of visualization, these would be visual law and legal communication design.
• Should law schools or design schools support legal design? And if so, how? Law schools and design schools should work together to establish curricula regarding visualization, audiovisualization, and multisensorization.

It is, of course, too premature for “final” answers and agree with Mulcahy’s suggestion: “[…] before we can begin to talk of a visual turn we need to consider how to turn to the visual.”⁴²⁸ Ex post, visual, audiovisual, and ultimately multisensory legal historians will perhaps offer later generations more sophisticated answers and undoubtedly raise further questions.

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I am grateful to Dr. Mark Kyburz for editing this paper. I wish to extend my gratitude to Professor Dr. Dr. Erich Schweighofer for inviting me to hold the first keynote lecture at the International Legal Informatics Symposion 2020, University of Salzburg, Austria. My talk prompted me to write this paper. I also thank Professor Dr. Helena Haapio for her greatly appreciated references. For the sake of concision, I have translated passages from German texts and refer readers to the original versions via the respective page numbers.