AuthorDavid W JOHNSON1 AB (Carleton College); JD (University of Miami School of Law), JSM, Law, Science & Technology (Stanford Law School); Bar Memberships (California, Florida); Lecturer-in-Law, Stanford Law School; Lecturer, Hasso Plattner Institute of Design at Stanford.
Publication year2021
Citation(2021) 33 SAcLJ 10387
Published date01 December 2021
Date01 December 2021
I. Thinking about thinking: Pragmatism

1 “At their best … lawyers serve as society's general problem solvers …”2 We will accept Brest's statement as generally true not just for the present, but looking back one hundred years and, more to the point, forward for another hundred years. This expands the state space, if you

will, for our understanding the role of the lawyer and to ask ourselves how best to prepare lawyers for this role in human systems going forward.

2 “You cannot think about thinking without thinking about thinking about something.”3 Today we will think a bit about design, as a method for investigating this particular role of lawyers in society. In a heated debate between Albert Einstein and Niels Bohr, an exasperated Bohr once hollered (at Einstein!): “You are not thinking, you are merely being logical!”4 For hundreds of years, lawyers and their teachers have used logic as a core method of teaching, thinking about and thus practising law. For some in the legal academy, logic remains the primary if not definitive standard for “lawyerly” thinking. It is certainly fair to wonder whether this continues to be good, or good enough. MIT Professor of Artificial Intelligence Marvin Minsky asks: “[W]hen do we actually use logic in real life? We use it to simplify and summarize our thoughts … to explain arguments to other people and to persuade them that those arguments are right.”5 And this is precisely what lawyers are trained to do — understand context and analyse facts in light of formal rules, then develop arguments to persuade others. Minksy continues:6

I doubt that we often use logic actually to solve problems or to ‘get’ new ideas. Instead, we formulate our arguments and conclusions in logical terms after we have constructed or discovered them in other ways; only then do we use verbal and other kinds of formal reasoning to ‘clean things up.’ … Logic no more explains how we think than grammar explains how we speak; both can tell us whether our sentences are properly formed, but they cannot tell us which sentences to make. [emphasis in original]

3 This is not criticism of logic per se. Logic, set theory and other formalist bases have produced powerful philosophies and schools of thought across civilisations, before and after the emergence of the scientific method. These tools have served, and continue to serve, society and humankind immeasurably. Yet they are not, and candidly have never been, the sum total of the useful arts for human thought, decision-making or problem-solving. Philosopher John Dewey said: “[T]he possibilities of continued and rigorous inquiry do not limit access to truth to any channel or scheme of things.”7

4 Dewey, along with William James, Charles S Peirce and (lawyer) Nicholas St John Green, developed “pragmatism”, “a philosophical movement or system … stressing practical consequences as constituting the essential criterion in determining meaning, truth, or value”.8 Certain adherents treat pragmatism as a full-blown philosophy. Others, your author included, believe its utility is better understood as analytic method.9 Characteristics attributed to pragmatism qua method are: “forward-looking”,10 “future-oriented”11 and “not a thing, but a way of proceeding”.12 Contemporary legal pragmatist Thomas Grey is more astute:13

Pragmatism is freedom from theory-guilt. To the pragmatist, theory can be general commentary aimed to teach or reform a practice, or it can be a separate practice itself, pursued for its own rewards. Most often, it will be some mix of the two. So conceived, theory runs alongside rather than ruling over worldly practice. [emphasis added]

5 Designers working with law and policy, and their normative consequents, will gladly embrace any licence granting additional freedom from theory-guilt. It is important to note here that Grey does not say freedom from theory, but rather freedom from the kind of sand-in-the-gears attachment to theory that can lock up the problem-solving

process in law and policy work. Moreover, the relocation of theory to the value-additive function of “run[ning] alongside rather than ruling over” practical work is, as we will come to see, particularly useful for design work in human systems.

6 For some old-school pragmatists, any embrace of the force and effect of theory runs hard against the grain. The extent to which these adherents reject the idea that pragmatism might need any formal touchstone or baseline ruleset is precisely the extent to which their pragmatism abandons its ownmost aim — utility — wherever it may be found. There must be a formalist component to any meaningful pragmatism, whether dubbed method or philosophy. And that pragmatism knows an immutable touchstone is the actual source of its freedoms, for it is precisely that touchstone which grounds the pragmatist in making their fundamental choice for any given domain: “sometimes one of the opposing modes of thought is appropriate, and sometimes the other, and no theory — only situated judgment — will tell us which one to adopt and when”.14 This idea is sometimes conveyed with a metaphoric moral compass with which to make this situated, or context-dependent judgment. And that moral compass must have a magnetic north. Thus the metaphor strengthens the case that a useful pragmatism depends on theory, as Grey embraces, to run alongside worldly practice. Indeed, it is this application of theory that frees the pragmatist to apply context-dependent judgment in an uncertain domain.

7 The theory selection process is not to be taken lightly. One has to refer to something grounded in order to make that decision. And to say merely that we refer to morals, or ethics, or conscience may not be entirely wrong, but it elides the import of the question.15 On this idea, famed pragmatist Rorty is unconvincingly dégagé:16

Pragmatist theory ab out truth. says that truth is not the sort of thing one should expect to have a philosophically interesting theory about. For pragmatists, ‘truth’ is just the name of a property which all true statements share.

8 In the midst of declaiming a pragmatist's disinterest in a theory of truth, Rorty in fact admits the need for just such a foundation. He tries to deny its importance by going meta, asserting that truth is merely the name one applies to a property held by all things true; a maddeningly self-referential pass. The irony is that for one to know when to apply a usefully definitive label to any such Rortian “property” one must still have some reliable metric for said property, if for no other reason than to measure all contenders.17 In other words, even accepting a demotion to mere property, truth still requires a paradigm to which one can look — for comparison, as a model, to see if a statement is possessed of a consensible, essential nature of said property (eg, trueness). So the pragmatist must maintain a referent from which to calibrate context-dependent judgment scenarios.18 That stable base is not merely useful for pragmatism, it is dispositive of success in coping with one of the most consistent traits of complex human systems — uncertainty.

II. Uncertainty: From avoidance to acceptance

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.[19]

9 Uncertainty in any problem domain cannot, of course, be escaped; it also ought not be ignored.20 No theory can do away with uncertainty in human behaviour any more than theory can do away with “friction in mechanics”. “Consider the range of social behaviours we engage in every day. In each case, there are a multitude of unknowns,

reflecting the many sources of uncertainty inherent to social inference.”21 It is, just as Nikiforuk describes, verily ubiquitous.

10 What we can do is choose how we engage uncertainty in human behaviour, how we go about making that discomfiting reach for a “grasp” on uncertainty. Law, as a discipline both academic and applied, works around uncertainty in various ways, some highly appropriate, some not so much. For lawyers, “[a]voiding, ignoring or misplacing uncertainty as a default response is particularly easy given the dominance of legal thinking which contains a knowledge and certainty-seeking worldview”.22 Precisely because uncertainty is peculiarly inherent in our discipline, we would do well to revisit the ways we have collectively viewed and dealt with legal uncertainty, and reconsider how we might better engage and manage it.23

11 Design can help. Designers have developed tools to address the kinds of uncertainty that arise in their problem domains. So, just what is design? Dominique Sciamma, Dean of the Strate School of Design in Paris and Singapore, answers it this way:24

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. [emphasis added]

12 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, the “Design Thinking Approach” has developed into an active, interdisciplinary domain. For our purposes, we can start by seeing design thinking as (part of) the

process by which design work gets done.25 Apple co-founder Steve Jobs said:26

Most people make the mistake of thinking design is what it looks like …. People think it's this veneer...

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