January 29, 2020 davidWJ

How Might Design Inform Law and Policymaking?

Uncertainty is the stuff of life, the world we live in. It is the subtle smile, the half-sensed pattern, the vexing decision. It is tomorrow’s stock market, the best chess move, the baffling ailment. It is so ubiquitous that scholars for centuries have studied how to escape it rather than to work with it.  They have preferred the solace of certainty to a grasp of uncertainty.[1]

Uncertainty in any problem domain cannot, of course, be escaped; it also ought not be ignored.[1]  “Consider the range of social behaviors we engage in every day. In each case, there are a multitude of unknowns, reflecting the many sources of uncertainty inherent to social inference.”[2]  It is, as Professor Nikiforuk describes, seemingly everywhere.  No theory can do away with uncertainty in human behavior any more than theory can do away with friction in physics. What we can do is choose how we engage uncertainty in human behavior, how we go about making that discomfiting reach, for a “grasp” on uncertainty. Design can help.  Designers address uncertainty regularly in their myriad problem domains. So, just what is design? Dominique Sciamma, Dean of the Strate School of Design in Paris and Singapore, answers it this way:

Generally speaking, it is the process of envisioning and planning the creation of objects, interactive systems, buildings, vehicles, etc.  It is user-centered; users are at the heart of the design-thinking approach.  It is about creating solutions for people, physical items, or more abstract systems to address a need or a problem.[3]

Design has many homes in the academy, with significant grounding in engineering. This is appropriate and good, as far as it goes. But design has much more to say and much more difficult work to do than the making of things. In just the last decade, design thinking has developed into an interdisciplinary field on its own.[4] Apple co-founder Steve Jobs:

Most people make the mistake of thinking design is what it looks like… .  People think it’s this veneer – that the designers are handed this box and told, ‘Make it look good!’ That’s not what we think design is.  It’s not just what it looks like and feels like. Design is how it works.[5]

Suppose the ‘it’ of which Jobs speaks is a human system; its design, then, is to be found in how it works. More to our point, the quality of its design is seen in how well the system works. Design is beginning, ever so timidly, to entertain work on the “more abstract systems” to which Sciamma refers, one of which is surely complex human systems. As design engineers Meinel and Leifer have noted:

With the integration of design thinking into engineering education, a missing link has been created between the science-focused, context-independent part of engineering and the human society focused, context-dependent aspect. The latter area has long been neglected, partly due to the uncertainty that comes with the unpredictability of human behavior.[6]

This observation could easily slide by unnoticed, so let me amplify. These two global thought leaders in science-focused design are telling us that design thinking has long overlooked human systems, due in part to uncertainty in human behavior. They go further to  expressly recognize that the human behavior aspect of design thinking is context-dependent, and not science-focused.[7]

In my view, we should stand in admiration of those physical scientists, engineers and others, willing to speak out and identify areas of inquiry for which their particular sciences have proven suboptimal.  Conversely, we must listen to their input on how social scientists (and non-scientists for that matter) might do better. Physicist John Ziman:

What we ask of a science of society is a body of knowledge, a guide to action, that is significantly more reliable, significantly broader and deeper in scope, than the agglomerations of practical wisdom with which most of what we do is still decided.[8]

In law and policy, too many practitioners have failed, or flatly refused, to see this tendency towards mere agglomeration – and not always agglomerations of wisdom, as Ziman generously suggests.  Science is of tremendous value when applied to a context for which it is well-suited, when it maps well over the substrate of investigative work.  Indeed, the life sciences have been nothing short of astonishing in their application of physical science to the human body. But the missing link noted by Meinel and Leifer evinces itself as we begin looking at the behavioral aspects of human beings, at the design of systems comprising human behavior. This philosophical diagnosis, though dense, rings particularly true:

For better and for worse, philosophical thought has repeatedly been influenced by its close dealings with the specialized sciences. In the decades following World War II, the predominant influence on American philosophy came from the formal and physical sciences. … The end result of this (and other factors too complex to guess at) was the very peculiar post-war spectacle of mainstream Anglo-American philosophy flowing along for decades with virtually no influx from the human sciences.  Not only was it distinctive of analytic philosophy that after a century of development of the specialized modes of inquiry tailored to comprehending sociocultural phenomena, it all but ignored them except for persistent attempts to assimilate them to the natural sciences.[9]

The physical sciences, which is to say their methodology and bent for empiricism, have primarily defined the investigative paradigm for the social sciences.  Science successfully attained a position of prominence in human thought, so much so that it verily filled the field in a fashion well captured by Matsuda: “Power at its peak is so quiet and obvious in its place of seized truth that it becomes, simply, truth rather than power.”[10] This is not pejorative of science per se, science as method. It is, rather, the sometimes indiscriminate application of science over inapt terrain that has extended its position of power, at least in many western societies, glazing it with an undeserved patina of truth.  And, the physical sciences’ position of power in the investigative model, whether in academic, government or private sector inquiry, is so fully accepted that it has, ironically, become the baseline against which the perceived failings of the social sciences are sometimes measured:

The fundamental issue for the behavioral sciences is whether the theory-building process can produce a strong, sure, unambiguous framework of concepts and relations as reliable in its own domain as the physical and biological sciences are in theirs.[11]

Without digressing into the argument, let us nonetheless contest here the silent premise that the positive characteristics of the physical science framework – ‘unambiguous framework of concepts and relations’ – are necessarily the right ones for the behavioral sciences. “Assuming that humans are rational often makes it easier to construct a theory of how they act, but such a theory is often not very realistic. There, alas, is the chief flaw in much of today’s social and behavioral science.”[12] That said, and for now left safely aside the road for another day, the larger point is fair and honestly appreciated. The study of human behavioral systems has struggled, on many fronts, to produce a “framework of concepts and relations … reliable in its own domain.” Gupta explicates:

No doubt, one can estimate the volume of snow or the heights of the mountains, or the frequencies of vibrating musical strings using statistical theory, but the conventional mathematical methods cannot be used to narrate logically the feelings and emotions associated with their perceptions.[13]

Even Stephen Hawking concurs: “Love, faith, and morality belong to a different category than physics. You cannot deduce how one should behave from the laws of physics.”[14] The intellectual world is not zero-sum, and we must not make any categorical mistake to that effect, no matter how powerful one stripe of intellectual method has become in its position as seized truth.  Intellectual space is not materially finite. Different ways of seeing the world, creative methods of analysis, and novel approaches to measurement and understanding possess equal claim to that space.  “Non-scientific” is, blessedly, no longer pejorative.

Here is where we can come full circle. We can engage a meaningful pragmatism and its recognition that science as theory may, for appropriate purposes, be relocated from its position of ‘seized truth’ to a stabilizing role operating in parallel with real work:

Pragmatism…does not erect Science as an idol to fill the place once held by God.  It views science as one genre of literature – or, put the other way around, literature and the arts as inquiries, on the same footing as scientific inquiries.[15]

By relocating scientific inquiry on the same footing as literature or the arts, Rorty implicates another methodology, seemingly long dormant – interdisciplinarity. Fragments of interdisciplinary inquiry are found among the ancient Greek academics. But as a methodology of post-modern import it lay unexamined until a well-deserved resurgence in the early 1990s. One notable proponent, and my personal favorite, was world-renowned climatologist Steven Schneider, who championed interdisciplinary academics as:

… a process that will become increasingly necessary to address real-world problems where they exist – not within the boundaries defined historically by disciplines, but in the overlapping domains defined by the problems themselves.  This kind of work may be politically incorrect, uneconomic, hard to evaluate for quality or threatening to existing status hierarchies. Nevertheless, that is no excuse for an open-minded institution to shirk its responsibility to study the world as it is, rather than through the traditional structures of discipline-dominated institutions.[16]

The speed and spread of innovation and implementation in science and technology, and their infusion into virtually all human systems, are powerful forcing factors, well-nigh demanding that we ‘address real-world problems where they exist…[in the] overlapping domains defined by the problems themselves.’ If we accept that law and policy designers are “society’s general problem-solvers,”[17] then we cannot shirk Schneider’s admonition qua prescription. And this means more than just a select few of the most curious law students exploring interdisciplinary space. Nor are just a few adventurous faculty enough to develop the coming generations of society’s problem-solvers. The academy and all attendant institutions must embrace the world interdisciplinary. For it is only the institutions that can dissolve disciplinary boundaries and replace them with relationships that map more usefully over the tightly-blended fields of science, business, engineering, computing, design and, yes, law as they operate and innovate in worldly practice.  Reluctance is not, alas, a viable option:

Companies, professions, institutions that insist on clinging to obsolete techniques and habits look attractively stable/traditional for a while – tweed and pipes and solid oak desks, that sort of thing; then they look charming; then quaint; then ridiculous; then dead. The question is not whether we adjust … but whether, as a society, we do it enthusiastically and well.[18]

Those of us in law, policy and governance must ask ourselves whether we have fully embraced the coming change that the global technology diaspora is forcing into our human systems and, thereby, the practice, pedagogy and institutions of law. If not, the fault lay with us, a failing in our own roles as society’s most experienced problem solvers. For the change wrought by technology has already arrived and, in a significant way, it is already ahead of us.  It cares not a whit whether we accept the responsibility to solve for it. The larger question is no longer if human systems are in the midst of technologically-mediated disruption. They are. The question is how, through our institutions – academic, governmental, corporate or religious – we will identify the disruptions, model the affected systems, design the requisite improvements and implement those solutions.

 

[1]P.N. Nikiforuk quoted in Fuzzy Automata and Decision Processes, Gupta, Saridis, and Gaines, eds., at p. ix (Elsevier North, 1977), at p. 175. (emphasis added).  Cf., “[M]ost of us are aware that there is much uncertainty in the world, and one of our most basic choices is whether we will accept that uncertainty as a fact or try to run away from it.”  Robyn M. Dawes, Rational Choice in an Uncertain World (Harcourt, 1988) p. 273 (e.a).
[2]“Vagueness, said Charles S. Peirce, is no more to be done away with in the world of logic than friction in mechanics.” Heinrich Scholz, Concise History of Logic (N.Y. Philosophical Library, 1961) p.1.
[3] Feldman-Hall and Shenhav, “Resolving Uncertainty in a Social World” Nat Hum Behav 3, 426–435 (2019). https://www.nature.com/articles/s41562-019-0590-x
[4] Dominique Sciamma (emphasis added). https://www.strate.education/gallery/news/design-definition.  He adds: “[i]t is a very broad concept and its meaning can greatly vary from one field to another. It permeates many aspects of our lives and branches out into many different subgenres.”
[5] The difference between design and design thinking is well captured here: “Design Thinking skills and practices…should be thought of as being appropriate to all disciplines including design. Design itself is a craft of deep specialized skills… . Each of these design specialties needs to know and practice their own specialized craft…while also knowing and practicing design thinking… .  It is the practice of design thinking by a team that leads to the opportunity for innovation and each discipline’s unique contribution, including design, that fleshes it out and realizes the potential.” Designer Karel Vredenberg, at https://www.karelvredenburg.com/home/2016/8/29/design-vs-design-thinking-explained (accessed July 6, 2020)(emphasis added).
[6] Steve Jobs as quoted by Rob Walker, The Guts of a New Machine “New York Times Magazine” November 30, 2003. https://www.nytimes.com/2003/11/30/magazine/the-guts-of-a-new-machine.html.  Walker continues: “So you can say that the iPod is innovative, but it’s harder to nail down whether the key is what’s inside it, the external appearance or even the way these work together. One approach is to peel your way through the thing, layer by layer.”
[7] Christoph Meinel and Larry Leifer, “Manifesto: Design Thinking Becomes Foundational” in Design Thinking Research Hasso Plattner, ed. (Springer, 2016) p. 1.  Christoph Meinel is the Director of the Hasso Plattner Institute for Digital Engineering (HPI) at University of Potsdam, Germany. Larry Leifer is the Founding Director of the Hasso Plattner Institute of Design at Stanford University. 
[8] Adding to the argument that a “science-focused” approach to understanding human behavior may be fundamentally flawed, sociologist Roberta Greene writes: “[h]uman behavior theory needs to be understood within the context of the history of scientific thought.  That history suggests … more than twenty major theoretical approaches. Each theory stems from a particular paradigm … [and] each paradigm is a reconstruction of prior thinking…”  Roberta Greene, Human Behavior Theory and Social Work Practice, 2nd Ed., (Aldine Transaction, 2009). p.3. Though beyond the scope of this paper, it may be useful to problematize the assumption of the science-based approach to human behavior, given the blend of inherent uncertainty and the difficulty in imposing the controls necessary to generate meaningful results.    
[9]John Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science (Cambridge, 1978) p. 6 (emphasis added).  
[10] Thomas McCarthy, Philosophical Interventions in the Unfinished Project of Enlightenment Honneth, McCarthy, Offe, and Wellmer, eds. (MIT Press, 1992) p. 242. (emphasis added).
[11]Mari J. Matsuda, “Pragmatism and the False Consciousness Problem” 63 So. Cal. L. Rev. 1763, 1765.
[12] John Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science (Cambridge, 1978) at 6 (emphasis added).
[13] Nobel Laureate Murray Gell-Mann, The Quark and the Jaguar: Adventures in the Simple and the Complex (Freeman, 1994) p. 323.
[14] M.M. Gupta, “Intelligence, Uncertainty and Information” from Analysis and Management of Uncertainty: Theory and Applications, Ayyub, Gupta and Kanal, eds., (Elsevier Science, 1992) p. 5.  Feynman once posited: “The next great awakening of human intellect may well produce a method of understanding the qualitative content of equations. Today we cannot.”  The Feynman Lectures on Physics II-41-12, Richard P. Feynman, Robert B. Leighton and Matthew Sands (Addison-Wesley, 1963).
[15] Steven Hawking, Black Holes and Baby Universes and Other Essays (Bantam, 1993) p. 173.
[16] Richard Rorty, Consequences of Pragmatism (University of Minnesota, 1982) p. xxxviii.
[17] Stephen H. Schneider, “Climatologist Schneider Urges Blending Context, Content In Teaching Sciences” Stanford Campus Report April 5, 1995 p. 9.
[18] Paul Brest and Linda Krieger, “On Teaching Professional Judgment” 69 Wash. L. Rev. 527, 529 (1994). https://digitalcommons.law.uw.edu/wlr/vol69/iss3/4
[19] Meg Greenfield, Newsweek February 27, 1995 p. 84.

 

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