Abstract
In 2008, the website Psychology Today posted a blog titled “Advertising is Magic” (Hutson, 2008). The first line read: “It's been said that advertising is a form of sorcery”. The historical foundations of this idea – that advertisers wield magic – are critically examined in The Rise of Mass Advertising: Law, Enchantment, and the Cultural Boundaries of British Modernity by Anat Rosenberg. Her analysis shows how key cultural beliefs about advertising, including what it was and what made it different to other cultural outputs, formed during the growth of mass advertising in Britain c 1840–1914. Her book is therefore an in-depth study of the cultural history of advertising, but it is more than that. It is, specifically, a cultural legal study. The law, as argued by Rosenberg, was a constitutive force in the creation of these ideas and beliefs. Those with a vested in advertising – including newspaper owners, public authorities, businesses, and professional advertisers – all mobilised law as the place and nature of advertising in modern society was contested, formalised and ultimately theorised. Law thus became a “compound element of cultural dynamics” (p. 30).
It is important, though, to clarify what “law” means in The Rise of Mass Advertising. Law is understood as a “diffuse mode of activity” used by multiple actors to “formulate social meanings, resolve cultural dilemmas, and frame normativity with the backing of legitimate coercive power” (p. 30). As such, the law discussed in this text includes legislation, litigation, contracts, actions of committees, policies, rights of ownership and administrative legal powers. Having such an expansive understanding is central for the role that Rosenberg ascribes to law: performing boundary work that differentiated advertising from other cultural domains, thus shaping the status of advertising in the process. Such boundary work resulted in the view that advertising was legitimate and indispensable, but also worthy of ridicule and critique.
Equally significant in Rosenberg's analysis is the way in which law supported “modernity-as-disenchantment”, which is a concept informed by the theories of Max Weber. Enchantment (as opposed to disenchantment) can be described as “possibilities for metamorphoses, magical efficacy, animated environments, affective connections between humans and things, imaginary worlds and fantasies informing mundane life” (p. 10). Such opportunities were rampant in advertising in the nineteenth and early twentieth centuries, as the book illustrates. Yet mastery of reason and a rational outlook on life, both disenchanting forces, became associated with modernity at this time as well. Rosenberg seeks to uncover how law, in performing boundary work, focussed on advertising's rationalist qualities. This constituted a legal “disavowal of enchantment” that, ironically, allowed enchantment in advertising to flourish free from direct legal attention (p. 12).
These key arguments are set out in the book's introductory section. The remainder of the book is divided into seven substantive chapters. Chapter One explores the centrality of enchantment in experiences of advertising during the nineteenth and early twentieth centuries. Through a variety of sources – including plays, novels, testimonials of consumers in fraud cases, and newspaper content – Rosenberg shows how mass advertising “brought forth a range of experiences based in non-rational ontologies and a sense of mystery” for many people (p. 35). One example is a 1904 newspaper advertisement that informed readers of buried medallions which – if found – could be exchanged for cash. This inspired a number of readers to become treasure hunters (p. 52–55). Chapter One emphasises that advertising's ability to conjure enchantment depended on factors including the sheer accumulation of mass advertising and consumer's own “will-to-enchantment”. This information provides important context for the ensuing discussion.
Chapters Two to Six are where the bulk of discussion concerning law's boundary work takes place. Each chapter focusses on advertising's interaction with a different domain, and how law was used to distinguish advertising from it. Chapter Two concerns advertising and news. It examines the tussle for control of newspaper content that took place between newspaper owners and advertisers following the abolition of advertising duties in the 1850s. Newspaper owners, supported by industry circulars, utilised their proprietary power to characterise advertising as “biased information” that was distinct and inferior to “news” (although still necessary to publish). Chapter Three reveals a similar legitimisation and inferiorisation of advertising, this time in relation to art. The chapter focusses on hoardings: outdoor surfaces utilised by billposting companies to display poster adverts. The billposting trade aspired to sustain hoardings as aesthetic spaces and used legal means (such as contract) to achieve this. Yet this posed a potential threat to art, leading to the enactment of the Advertisements Regulation Act 1907. This legislation created a regime that characterised hoardings as “low aesthetics”, appropriate in urban areas yet inferior to “art”.
Chapter Four deals with advertising and science, particularly tensions over “quackery” in relation to adverts that promoted medical products and services. The chapter discusses a cultural division where “science” was characterised by logic and restraint, as evidenced by ethical codes that warned doctors not to advertise. By contrast, the consumer “market” – where advertising of unregulated medicine existed – became associated with excess and lack of seriousness, as revealed by defamation and fraud litigation. Advertising consequently came to be perceived as exaggeration. Chapter Five extends this discussion by analysing the doctrine of puffery, a defence used in multiple areas of law (including contract and tort) to excuse a speaker for what they had said when the language was used to promote a sale. Rather than assuming the doctrine represented preference for the seller over the buyer, Rosenberg instead argues that it was a form of legal ridicule that showed the “markdown in the cultural capital of advertisers” (p. 238).
Rosenberg thus establishes that, in differentiating advertising from other domains such as news and science, law was appraising advertising against rationalist values such as truthfulness and restraint. Law consequently failed to engage with or conceptualise advertising's enchanting qualities, which constituted a “legal disavowal” of enchantment. Chapter Six, however, explores advertising's interaction with issues concerning morality, where the law did, at times, come close to recognising enchantment – although ultimately failed to do so. Gambling is first considered, with a focus on litigation that examined whether advertisements for prize competitions constituted illegal lotteries. Gambling was redolent with enchantment, yet the “courts confirmed that the advertising culture of competitions was not the same as gambling and therefore was not enchanted – it was just low culture” (p. 265). Censorship of indecent posters and advertisements for abortifacients is also examined, with a similar conclusion: that the law minimised enchantment in relation to these forms of advertising too.
All of the various threads presented in the previous chapters come together in Chapter Seven, where Rosenberg shows how law's neglect of enchantment actually attracted and enabled professional advertisers to mobilise advertising's enchanting qualities, as they could do so without direct legal attention. In particular, advertisers utilised the emerging field of psychology to “attain cultural authority” (p. 326) and brand advertising as expertise in the human mind. Early advertising professionals, therefore, laid the foundations of an important cultural myth: of “advertisers as the sorcerers of capitalism” (p. 356). Yet Rosenberg is keen to point out that professional advertisers were not sole authors of enchantment but were instead “participants in a structural phenomenon that depended on the advertising environment as a whole, and on consumers’ own will to enchantment” (p. 357). This highlights the insights of Chapter One and the reasons set out there for the potent enchantment exerted by advertising, so bringing the discussion full circle.
The Rise of Mass Advertising thus delivers a carefully constructed and layered cultural legal history of mass advertising in Britain c 1840–1914. It is unique as it is the first to do so in book form. Rosenberg has already published some of this material in various journal articles, but combining this research into a single text allows the component parts to build upon each other and tell a more developed story, particularly about enchantment. The book is not, however, an exhaustive analysis of the cultural history of British advertising: by her own admission, Rosenberg has concentrated on areas where anxieties around cultural boundaries were most acute (p. 20–21). Her book nonetheless displays the multifarious legal issues posed by historical advertising, which engage public law, intellectual property, criminal offences, contract and leases, among others. It draws these together into a seamless whole by focussing on the boundary work performed across multiple legal loci in sustaining “modernity-as-disenchantment”. Clarity is also maintained by the large number of images in the book (over 100 in total), many in colour, which show the historical advertising being discussed and are an excellent visual aid.
The Rise of Mass Advertising is also notable for the role it conceives of law in relation to culture. In some studies, “law” and “culture” are autonomous concepts (Wagner, 2018, p. 196–198). Rosenberg has a different vision, however. “Law” (as explained earlier) has a diffuse, expansive meaning. It is conceived not as a predefined institution or mere adjudication from above but as “a dynamic part of cultural negotiation” (p. 10). This interpretation, which sees multiple actors “create, adapt, and perform normativity” in legal environments (p. 30), reminds us that “particular social norms are embedded in particular cultures, from which legal culture cannot be easily separated out” (Gross, 2001, p. 687). Moreover, Rosenberg does not treat it as inevitable that law would disavow or minimise enchantment in advertising, even if utilised in this way (p. 30). This suggests a fluid, flexible approach to identifying and discussing law in the context of cultural studies.
The result – particularly for aspiring legal historians like the reviewer – is that The Rise of Mass Advertising has tremendous value in showing how research into historical law can be extended beyond a purely doctrinal analysis and unearth fresh perspectives. Take the example of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, a well-known English contract law case which is analysed in Chapter Five for what it reveals about puffery (p. 246–248). Carlill is typically seen as an authority for when an advertisement can, exceptionally, constitute an offer rather than an invitation to treat for contract formation (MacQueen and Thomson, 2020, p. 64). Rosenberg's analysis, in locating Carlill within a cultural history of advertising, shows a new way to read this case: as symptomatic of the way the law legitimised but also demeaned advertising. Such an analysis, by taking account of law's boundary work in cultural debates, also unveils the historically constructed nature of seemingly axiomatic views about advertising that still resonate today (for example, that it contains biased or exaggerated information). The Rise of Mass Advertising consequently makes an important contribution not only to historical understandings of advertising, but in illustrating the insights offered by cultural legal history. In this way, it performs its own kind of magic.
