How and why might we draw on designerly ways to support conceptual prefiguration in law?

This post summarises my contribution to an online Roundtable on ‘Conceptual prefiguration / prefiguring concepts’ organised by Davina Cooper as part of the Utopian Legalities, Prefigurative Politics and Radical Governance Collaborative Research Network on October 15, 2021.

I have spent the last few years exploring the idea of ‘doing sociolegal research in design mode’. My central question has been how sociolegal researchers might draw on mindsets, processes and strategies that I see as characteristic of Design (‘designerly ways’); and with what substantive, conceptual, empirical, analytical, processual and relational risks and rewards. When I use the term ‘designerly ways’ I am referring specifically to (1) mindsets that are simultaneously practical, critical and imaginative (here I am building on Ezio Manzini); (2) as supported by and reflected in processes that emphasise experimentation; and in (3) visual and material communication strategies.

One of my findings has been that these designerly ways are especially helpful to sociolegal researchers; especially when working between pasts, presents and futures, which includes prefigurative work.

Working with/for futures is hard because it requires more/different imagination than other forms of (already imaginative) legal thinking. It seems to me that explicitly embracing and activating imagination is relatively unfamiliar to sociolegal researchers, perhaps because they tend to be committed to exploring, even promoting, ‘law as a practical idea’ (Roger Cotterrell)—that is, as something that could be (but often is not), associated with changing the lives of particular, concrete, people for the better. It is perhaps more familiar those who take more theoretical approaches law (whether doctrinal or critical) because they are experts in the (relatively) abstract work of conceptualisation; and so they are more practiced at playing with concepts, moving them around with relative freedom.

Conceptualisation is central to all forms of legal thinking and practice. It is/ought to be a process of iterative, experimental making (See Margaret Davies). ‘Experimental’ here is (for me) meant both in the ‘scientific’ sense of testing and in the ‘creative’ sense surrendering to serendipity or happenstance. It generates what I think of as ‘structured-yet-free’ spaces in which we can communicate with ourselves and each other. It is performative and often prefigurative, bridging the ‘actual-potential’ (See the ProtoPublics project led by Guy Julier and Lucy Kimbell in 2016). These features are replicated in design thinking and practice; and can be prompted and facilitated by designerly processes and strategies.

How?

Designerly processes emphasise experimentation. They work in iterative sequences of divergent and convergent thinking, creating and destroying ideas, first to clarify what issue / problem situation they are seeking to address, then to develop and implement responses / solutions.

Designers are skilled makers. They make things, systems, spaces and so on. In so doing the make ideas visible and tangible. And they use making as a form of inquiry along the way: to think ideas through, to test, to see, to share, for example in the form of models or prototypes.

Lawyerly types can use these processes and strategies (work in design mode). They can adapt design processes (individually or collaboratively) to prompt, facilitate and enhance the (necessarily experimental) process of conceptual prefiguration—first to clarify what concept they wish to prefigure and why, then to develop and implement such prefigurations. They can use designerly strategies (as non-experts or working with expert designers) to make those ideas visible and tangible, for example, in small-scale rough LEGO models, or full-scale staged scenarios. Instances of designerly and proto-designerly legal prefiguration already exist—see, for example, In the Shadow of the State (2016), a project by artists Sarah Browne and Jesse Jones ‘exploring statehood from the perspective of the female body’ that emerged out of extensive collaboration with experts the fields of medicine, law and material culture as well as music and deployed designed fictitious documents and embodied practices; and Four Legs Good (2018), a project by artist Jack Tan, in which a fictitious Animal Justice Courtcomplete with case files, personas and documentation was created in the old Victorian courtroom at Leeds Town Hall.

To underscore and celebrate these and other past examples, and to encourage their future proliferation, I will conclude with three propositions, framed around Davina’s prompts. First, designerly mindsets, processes and strategies can be used to ‘prompt’ conceptual prefiguration, as well as to overcome, even to activate, some of the ‘constraints on imagining concepts otherwise’. Second, the technical creative skills of designers can be directed to ‘manifest new conceptual imaginaries’ in visible and tangible, albeit partial and temporary, form. Third, the resulting designerly ecosystems ought to be of particular use to those wishing to move between theoretical, empirical and applied legal work.

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