Legal Design and the drama of the synecdoche

Legal Design is gaining its momentum. Each day several initiatives are launched, new courses emerge, businesses propose innovative solutions in the field, terms like “jams” and “sprints” have become familiar in the legaltech lexicon. 

People have apparently discovered that law is not an ivory tower - inaccessible to those that are not part of a super-exclusive circle which is perpetrating its own tradition, speaking its tribal language and laughing at its peculiar jokes (the so-called “lawyers”) -, but it is a social science, a “porous” science, which is influenced by the historical context, by instances coming from society and can benefit from other disciplines. Interdisciplinarity for law is nothing new under the sun, as the scholars of “law and…” know very well. However, it is true that design is probably the latest (chronologically speaking) discipline that has reached the realm of law, giving birth to this new movement of Legal Design.

Regrettably, despite (or probably because of) the exponential success of Legal Design, there are at least 3 misconceptions that have emerged: 1) visualisation has nothing to do with THE LAW; 2) design is all about art; 3) Legal Design pretends to draw and simplify everything of THE LAW. As a consequence of these misconceptions, Legal Design is receiving some first fierce criticisms.

I do not have to, but I would like to defend the importance of visualisation in Law and for Law. People thinking that the form does not matter are making a crucial mistake in terms of legal theory (here there is the first misconception). Notably because is the law that in some cases expressly calls for that. Just to mention a couple of examples: consumer protection legislation repeatedly highlights that pre-contractual information has to be given to the consumer in a clear and comprehensible way and that the same information must be legible (there are several judicial cases invalidating contracts because of the small prints); Article 29 Working Party (now European Data Protection Board) has recently issued in its guidelines for transparency that: “Importantly, the principle of transparency in the GDPR is not limited to being effected simply through language communications (whether written or oral). The GDPR provides for visualisation tools (referencing in particular, icons, certification mechanisms, and data protection seals and marks) where appropriate. Recital 58 indicates that the accessibility of information addressed to the public or to data subjects is especially important in the online environment”.

Secondly, design does not necessarily overlap with artistic creation. Creativity, for sure, plays a crucial role (as in all disciplines, including law!), but design is a science, with its own rules, literature, scientific methods. If the final outcome is an iconographic and simplified version of a contract which is a pleasure to read is because there are tons of scientific studies, rooted in behavioural sciences, and empirical works that have tested that particular visual result.

Finally, Legal Design does not imply that everything can be visualised. In some cases, visualisation can be effective, in some others simply not. Because neither visualisation nor Legal Design are a one-size-fits-all-approach.

Legal Design is experiencing what I call the “synecdoche's drama". As known, the synecdoche is a figure of speech in which the part represents the whole. For example, we say “wheels” for “cars”, “suits” for “businessmen”, “bread and butter” for “a person's livelihood or main source of income”, etc. There is a trend in the ongoing debate to frame Legal Design in terms of mere visualisation or, worst: just because there is a fancy interface, we can talk about Legal Design. This is a huge and current misconception that can negatively affect the further development of Legal Design if not properly addressed. 

Visualisation is undoubtedly an important component of Legal Design, but it is not the only one. Legal Design is a complex discipline at the crossroad of law, technology, design, behavioural science that can be used to solve or prevent legal problems. 

With Margaret Hagan, Monica Palmirani, Arianna Rossi, Stefania Passera and Helena Haapio, we have extensively written about the foundations of Legal Design here: www.legaldesignalliance.org

The logic and scientific tools of design can be used not only to present information in a more meaningful way, but also to implement in practice the rationale of law, to restructure organisations and processes, to amend norms or propose new ones, to build alternative policy solutions, to enhance the access to justice, to solve current societal problems. The common denominator of these examples is the importance of placing the user at the centre of the process (for real).

Furthermore, and continuing in the metaphor, the whole is never the sum of all its parts. Legal Design is benefitting from many disciplines, prominently design, but this interaction is creating an added value and a set of competences and tools specific for this field. Creative thinking, empathy, problem-solving attitude, ability to work in teams, communication skills are only few examples. The list is expected to grow once we will have more data coming from legal design projects and legal design courses that are taking place.

We are still in the early stages of this discipline and the foundations, methodology and applications of it are being tested and “prototyped” right now.

But there are already some key points of reference that cannot be questioned: Legal Design is a scientific-grounded discipline and goes beyond visualisation. Or, at least, it's just the way I see things.

Credits: This post has been inspired by a very fruitful and interesting discussion occurred on a LinkedIN profile. I would like to thank all the people that have provided thoughtful insights to that discussion.