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Exploring the dimensions of participation in Legal Design

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Abstract

This article discusses the 'paradox of participation' in legal design and how to address it in practice. Law as a special social function needs multi-level participation, not only to fulfill its duty in society, but also for its own reflection and inner development. However, the legal culture, including classical legal analysis and many legal practices tend to reject anything 'non-legal', making it challenging for both lawyers, users and other professionals to initiate legal design projects and to engage in them. As described in design literature, putting multi-level participation into effect is a challenge also in design contexts other than law, and requires special mindfulness and methods to succeed. This paper shows how the model of five critical questions by Joseph Giacomin, the design matrix by Elizabeth Sanders and Pieter Stappers, and the participation ladder model by Frans Geilfus can be used to frame legal design projects from the perspective of participation, and to decide how to incorporate a more participatory approach to them, if desired.
7. EXPLORING THE DIMENSIONS OF
PARTICIPATION IN LEGAL DESIGN
Nina Toivonen and Sanago de Francisco Vela
Abstract
This arcle discusses the ‘paradox of parcipaon’ in legal design and how to ad-
dress it in pracce. Law as a special social funcon needs mul-level parcipaon,
not only to fulll its duty in society, but also for its own reecon and inner de-
velopment. However, the legal culture, including classical legal analysis and many
legal pracces tend to reject anything ‘non-legal’, making it challenging for both
lawyers, users and other professionals to iniate legal design projects and to en-
gage in them. As described in design literature, pung mul-level parcipaon
into eect is a challenge also in design contexts other than law, and requires spe-
cial mindfulness and methods to succeed. This paper shows how the model of ve
crical quesons by Joseph Giacomin, the design matrix by Elizabeth Sanders and
Pieter Stappers, and the parcipaon ladder model by Frans Geilfus can be used
to frame legal design projects from the perspecve of parcipaon, and to decide
how to incorporate a more parcipatory approach to them, if desired.
1. Introducon
For Legal Design to establish itself as a unique eld of design with a mis-
sion to improve legal systems, it is necessary to develop design methods
that serve the specic purposes and features of law.1 This paper argues
for the fundamental role of parcipatory design pracces2 in Legal De-
1 Michael Doherty, Marcelo Corrales Compagnucci, Helena Haapio and Margaret
Hagan, ‘A new atude to law’s empire: the potenalies of legal design’ in Marce-
lo Corrales Compagnucci, Helena Haapio, Margaret Hagan and Michael Doherty
(eds), Legal Design. Integrang Business, Design and Legal Thinking with Technol-
ogy (Edward Elgar Publishing 2021) 1.
2 Also understood as ‘co-design’, ‘collaborave design’ or ‘parcipatory innovaon’,
see Elizabeth BN Sanders and Pieter J Stappers, ‘Co-creaon and the new land-
scapes of design’ (2008) 4 Internaonal Journal of CoCreaon in Design and the
Arts 5-18; Jacob Buur and Ben Mahews, ‘Parcipatory innovaon’ (2008) 12 In-
ternaonal Journal of Innovaon Management 255-273.
254 Nina Toivonen and Santiago de Francisco Vela
sign building on two main insights introduced and discussed in previous
research. The rst insight is that designing legal arfacts that are part
of complex social systems requires a mul-level understanding of the
various funcons, meanings, and values that the arfacts must grafy to
be usable.3 Such an understanding is best acquired by working together
with users and other stakeholders, as they can not only help build the
technical soluon, but also its meaning, acceptability, and eects.4 This
parcipatory approach goes beyond ‘user-centricity’ or ‘human-centric-
ity’, as it regards users as decision-makers, validators and agents of the
design, not just as informaon providers.5 The second insight is that al-
though mul-level parcipaon would be a must, engaging lawyers, de-
signers and other stakeholders to design legal arfacts together can be a
parcular challenge.6 That may be due to the dierent - somemes op-
posite - expectaons, understandings and atudes of lawyers and other
stakeholders towards problem solving, knowledge formulaon and the
value of co-work.7 In parcular, the legal profession is characterized by its
legal-centric and somewhat exclusive working models.8 Students at law
3 Petra Hietanen-Kunwald, Helena Haapio and Nina Toivonen, ‘Systems Theory as
a Research Framework for Dispute Prevenon and Resoluon by Design’ in Ros-
sana Ducato and Alain Strowel (eds), Legal Design Perspecves - Theorecal and
Praccal Insights from the Field (Ledizioni 2021) 86; Andrés Polanía and Sanago
de Francisco Vela, ‘Designing Interfaces for Legal Arfacts. Using Storytelling to
Enhance Digital Legal Experiences’ in N Marns and D Brandão (eds), Advances in
Design and Digital Communicaon III, DIGICOM, 27 Springer Series in Design and
Innovaon (Springer 2022).
4 Lucy Kimbell, ‘Design-as-pracce and designs-in-pracce’ (CRESC Conference,
Manchester 2009) 9; Ezio Manzini, Design When Everybody Designs. An introduc-
on to Design for Social Innovaon (MIT Press 2015) 45.
5 Elisabeth B. N. Sanders, ‘From user-centered to parcipatory design approaches’
in Jorge Frascara (ed), Design and the social sciences: Making connecons (Taylor
& Francis Books Limited 2002) 1-8.
6 Michael Doherty, ‘The relaonship between legal and design cultures: tension and
resoluon’ in Marcelo Corrales Compagnucci, Helena Haapio, Margaret Hagan and
Michael Doherty (eds), Legal Design. Integrang Business, Design and Legal Think-
ing with Technology (Edward Elgar Publishing 2021) 32; Margaret Hagan, ‘Parci-
patory Design for Innovaon in Access to Jusce’ (2019) 148 Dædalus, Journal of
the American Academy of Arts and Sciences 120, 122.
7 Doherty (n 6) 32, and Amanda Perry-Kessaris, ‘Legal Design for Pracce, Acvism,
Policy and Research’ (2019) 46 Journal of Law and Society 185.
8 Doherty (n 6) 45; Perry-Kessaris (n 7) 185; Richard Susskind and Daniel Susskind,
255Exploring the Dimensions of Participation in Legal Design
schools are tradionally trained to analyze and solve problems on their
own, normalizing the expectaon of an independent and self-sucient
legal expert. Also, when praccing their special experse, to interpret
what is ‘legal’ or ‘illegal,’ lawyers can only turn to authoritave legal in-
formaon sources, such as regulaons or court rulings. Anything non-le-
gal has lile to no value in classical legal analysis.9 Therefore, the idea
of parcipaon embedded in legal design, that legal problems could be
solved with the help of non-legal experts and their non-legal knowledge,
may seem counterintuive or even irraonal for some lawyers.10 If not
adequately addressed and unraveled, this discrepancy between ideals
and reality, or as we call it ‘the paradox of parcipaon’, may hamper the
pracce of design in the eld of law.
This paper explores parcipaon in legal design from two eld-spe-
cic perspecves – those of law and design. In secon 2 we rst explain
why a parcipatory approach to designing law and legal arfacts mat-
ters, and secondly, what may hinder the use of parcipatory methods in
legal contexts. This overview is built on system-scienc, behavioral and
socio-legal theories, with a twist of our personal experiences and project
descripons from the legal design eld. As noted in previous legal design
studies, systems sciences provide a useful analycal lens to understand
complex human phenomena, such as the relaonship between legal sys-
tems and society.11 Systems sciences also support the development of
The Future of the Professions (OUP 2015) 136.
9 Steven Barkan, Barbara Bintli and Mary Whisner, Fundamentals of Legal Research,
Tenth Edion (Foundaon Press 2015); Kaarlo Tuori, Crical Legal Posivism (Rou-
tledge 2002) 285; Hietanen-Kunwald, Haapio and Toivonen (n 3) 79.
10 Similarly Margaret Hagan, ‘A Human-Centered Design Approach to Access to Jus-
ce: Generang New Prototypes and Hypotheses for Intervenon to Make Courts
User-Friendly’ (2018) 6 Indiana Journal of Law and Social Equity 199, 202; Per-
ry-Kessaris (n 7) 3.
11 Hietanen-Kunwald, Haapio and Toivonen (n 3); Joaquin Santuber and Lina Krawi-
etz, ‘User Research Methodologies in Legal Design Projects: Lessons from Pracce’
in Rossana Ducato and Alain Strowel (eds), Legal Design Perspecves - Theorecal
and Praccal Insights from the Field (Ledizioni 2021) 93. See also Sanago De Fran-
cisco Vela and Laura Guzman-Abello, ‘Systemic design of jusce: Transdisciplinary
approach to access to jusce’ in this Volume.
256 Nina Toivonen and Santiago de Francisco Vela
design philosophy more generally, as design itself is a systemic method,
seeking to create systemic impacts.12
In secon 3 we connue our exploraon with a more pracce-ori-
ented focus. As the design literature describes, there are mulple ways
to understand ‘human- ‘or ‘user-centric’ design, but only some of the
methods and soluons created under these concepts are parcipatory
in the sense of leng users and other stakeholders have a say about the
design outcomes. In this secon we discuss how the model of ve crical
quesons by Joseph Giacomin,13 the matrix of design by Elizabeth Sand-
ers and Pieter Stappers,14 and the parcipaon ladder model by Frans
Geilfus15 can help legal designers frame their projects from the perspec-
ve of parcipaon and decide how to incorporate a more parcipa-
tory approach to them, if desired. To demonstrate the potenal of these
models, we use method and soluon examples from three legal design
projects: the SMS tool created by the Evicon Prevenon Learning Lab
at Stanford University in San Francisco, USA,16 the digital ‘Entutela’ tool
created by Labjuscia at the University of los Andes, Colombia,17 and the
Legal Service Design Toolkit created by Hápca legal design consultancy
in Colombia.18 Our exploraon will be concluded in the fourth secon
with a summary of our main ndings, their possible uses in legal design
pracce, and ideas for future research.
12 Richard Buchanan, ‘Systems Thinking and Design Thinking: The Search for Princi-
ples in the World We Are Making(2019) 5(1) She Ji: The Journal of Design, Eco-
nomics, and Innovaon, 85, 86.
13 Joseph Giacomin, ‘What is human centered design?’ (2014) 17 The Design Journal
4, 606.
14 Sanders and Stappers (n 2).
15 Frans Geilfus, 80 Tools for Parcipatory Development: Appraisal, Planning, Fol-
low-Up and Evaluaon (IICA 2008).
16 Sarah Verschoor, ‘How can text messages help prevent evicons?’, <hps://medi-
um.com/legal-design-and-innovaon/how-can-text-messages-help-prevent-evic-
ons-77d477135bb4> accessed 8 February 2023.
17 Camila Padilla Casas and Sanago de Francisco Vela, ‘Entutela. A digital tool to
facilitate the draing and creaon of tutelas in Colombia’ in Advances in Design
and Digital Communicaon III - Proceedings of the 6th Internaonal Conference on
Design and Digital Communicaon (Digicom 2023).
18 Angelica Flechas, Jorge García and Soa Escobar, ‘Aplicación de la metodología de
Legal Service Design de cara a contextos de derecho público vs. derecho privado’
(2021) 6 RChD: creación y pensamiento 11, 1-23.
257Exploring the Dimensions of Participation in Legal Design
2. The Paradox of Parcipaon in Legal Design
Just like any other everyday objects invented by humans, legal arfacts
have specic funcons that sasfy human needs that no other arfact
sases in a similar way.19 In this paper we understand ‘legal arfacts’
in a broad sense as anything tangible or abstract that belongs to or is
closely connected to the legal system by its funcons, and which make
law visible and something that can be experienced by its human users.
The problem, however, as addressed by the legal design movement, is
that legal arfacts are seldom designed to t their actual purpose of
use, at least not from the perspecve of their laymen users.20 Design as
a pracce-oriented philosophy is interested in promong the well-being
of people by sasfying their basic needs,21 but the common design of
legal arfacts oen leaves these needs unsased. Therefore, the ques-
on of purpose is closely connected to the queson of whom the design
soluon is intended for and, therefore, whose needs, capabilies and
movaons should be considered when designing legal arfacts.22 The
arfact’s purpose also raises the queson of how it should be designed
and by whom to opmize its funconality. When seeking to understand
the role of parcipaon in legal design, it may therefore be helpful to
start with a few ontological quesons: What is law really for? What are
legal arfacts really for?
2.1. Why Law Needs Parcipaon
As understood in modern legal thinking, law as a human invented system
can have many funcons, depending on which perspecve this system is
viewed from. Law can be used to solve conicts, to protect the vulnera-
ble, to sasfy human needs, to allocate resources, to provide services, to
enforce polical ideas, or even to ensure a living for lawyers, to name a
19 Herbert A Simon, The Sciences of the Arcial (MIT Press 2019) 111.
20 Hagan (n 10) 202; Doherty, Corrales Compagnucci, Haapio and Hagan (n 1) 3.
21 Kimbell (n 4).
22 Gerlinde Berger-Walliser, Thomas Barton and Helena Haapio, From Visualizaon
to Legal Design: A Collaborave and Creave Process (2017) 54 American Business
Law Journal 2, 11.
258 Nina Toivonen and Santiago de Francisco Vela
few.23 These purposes can also manifest in dierent ways in the form of
legal arfacts. The legal arfacts that serve the purpose of conict solv-
ing, for example, can be the procedural regulaons that guide a ligaon
process, the ligaon documents, the ligaon process happening at a
courthouse, the courthouse itself, and the nal court ruling that seeks to
solve the conict.24 From a purely legal point of view, it may also seem
logical that lawyers are the primary users of these arfacts, and there-
fore their needs should be considered when designing these objects.
However, as socio-legal theories help us understand, both the scope of
users and the purposes of use for legal arfacts are more diverse due to
the specic funcon that law has in society.
If we accept the idea that law has a unique funcon in society, it fol-
lows that the arfacts that are part of that system also share the same
funcon. According to established legal and socio-legal theories, par-
cularly the theory of social systems by late sociologist Niklas Luhmann,
the specic purpose of law is to guide human behavior by establishing
normave expectaons.25 Normave expectaons, communicated for
example in the form of legislaon or court rulings, tell people how they
are supposed to (‘ought to’) behave to sasfy interests that society con-
siders worthy of protecon, such as resolving conicts or taking care of
the vulnerable. Normave expectaons also tell us what kind of behav-
ior people are entled to ancipate from others, thus helping people to
plan their future acvies and prevent possible conicts of interest.26
Only behaviors that meet the normave expectaons set by the law can
enjoy legal protecon. This is also the core requirement of legal cer-
tainty, the central element of the rule of law.27 From this viewpoint it
becomes clear that law and legal things are intended for all members
of society, or at least for everyone who needs to use them to access
23 Niklas Luhmann, Law as a Social System (KA Ziegert tr, OUP 2004) 149; Joseph Raz,
The Authority of Law, Essays on Law and Morality (OUP 1979) 164-179; Tuori (n 9)
135.
24 Luhmann (n 23) 30.
25 Luhmann (n 23) 148; Raz (n 23) 164; Hans Kelsen, The Pure Theory of Law (Max
Knight tr, University of California Press 1967) 31.
26 Raz (n 23) 169.
27 Aulis Aarnio, The Raonal as Reasonable. A Trease on Legal Juscaon (D Reidel
Publishing Company 1987) 3.
259Exploring the Dimensions of Participation in Legal Design
the legal system and exercise their rights and obligaons. As discussed
by Michael Doherty, the purpose of law in guiding human behavior can
therefore be seen as a juscaon for the applicaon of human-centric
approaches to designing beer funconing legal arfacts.28
It is needless to say that guiding human behavior is a complex phe-
nomenon, perhaps too complex for just lawyers to take care of it. If
the purpose of legal arfacts is to communicate normave informaon
about what kind of behavior the legal system expects from its users,
ideally this communicaon and the way it is communicated should be
based on a non-biased, scienc and context-related understanding of
human behavior. This understanding can be acquired from various ex-
perts in behavioral and other human sciences, but also from the target
end-users and other stakeholders themselves. According to a behavioral
scienc theory called ‘the COM-B model’, there are three central com-
ponents, ‘capability,’ ‘opportunity,’ and ‘movaon,’ that are all needed
for any behavior to occur.29 For example, if a person needs to represent
herself at a court, to succeed in her task she needs the knowledge, skills,
and stamina (‘capability’), as well as me, money, and physical access to
the necessary materials (‘opportunity’) and enough interest to take such
acon (‘movaon’) in order to succeed at the task.30 This informaon
about users’ capabilies, opportunies, and movaons can be consid-
ered subjecve and context-related.31 Therefore, the best way to collect
it is from the target people whose behavior the design primarily seeks
to inuence.32
While parcipatory design methods can help gather the necessary in-
formaon about the behaviors the legal arfact should support, they
may also have other benets regarding guidance of behavior. Users of le-
28 Michael Doherty, ‘Comprehensibility as a Rule of Law Requirement: The Role of
Legal Design in Delivering Access to Law’ (2020) 8(1) Journal of Open Access to Law
2.
29 Susan Michie, Lou Atkins and Robert West, The Behaviour Change Wheel. A Guide
to Designing Intervenons (Silverback Publishing 2014) 59; Susan Michie, Maartje
van Stralen and Robert West, The behaviour change wheel: A new method for
characterizing and designing behaviour change intervenons’ (2011) 6 Implemen-
taon Science 1, 42.
30 Michie, Atkins and West 2014 (n 29) 59.
31 Similarly Sanders and Stappers (n 2) 7.
32 Michie, Atkins and West (n 29) 66.
260 Nina Toivonen and Santiago de Francisco Vela
gal arfacts are the best experts in their own maers. Involving users in
the legal design process as problem solvers and co-designers allows them
to pursue agency and autonomy, the right to decide for themselves.33
The democrac policy making process as well as the parcipatory de-
sign for policy movement are grounded in this very idea.34 According to
a behavioral scienc self-determinaon theory, the need for self-regu-
laon and control is also one of the fundamental human needs and core
factors for movaon.35 Legal arfacts that fail to support their users’
basic need for self-determinaon hardly bring out the best results. As
described by Margaret Hagan in the context of self-represented ligants
navigang inside the court system, if people experience that they have
no chance to inuence their own case or they have only bad opons
to choose from, they may become passive or reluctant to comply with
the given circumstances and eventually lose their ‘chances for taking the
full advantage of the legal system.36 Parcipatory design methods that
engage users as the contributors to the design outcome can improve
users’ experience of ownership and agency in the design soluon and,
therefore, give them a reason to comply with the behavioral models that
the design proposes.37
User and stakeholder parcipaon in legal design projects also enable
a learning curve for all parcipants, not just for the users, but also for
the lawyers, whose learning outcomes can eventually contribute to the
inner development of the legal system.38 This view is well adopted ia. in
socio-legal and legal realism research tradions,39 but also discussed in
33 Sanders and Stappers (n 2) 12.
34 Margaret Hagan, ’Prototyping for policy’ in Marcelo Corrales Compagnucci, He-
lena Haapio, Margaret Hagan and Michael Doherty (eds), Legal Design. Integrat-
ing Business, Design and Legal Thinking with Technology (Edward Elgar Publishing
2021) 9.
35 Edward L Deci and Richard M Ryan, ‘The “What” and “Why” of Goal Pursuits: Hu-
man Needs and the Self-Determinaon of Behavior’ (2000) 11 Psychological In-
quiry 4.
36 Hagan (n 10) 209.
37 Berger-Walliser, Barton and Haapio (n 22) 352.
38 David Johnson, ‘Design for Legal Systems’ (2020) 33 Singapore Academy of Law
Journal, 434.
39 Amanda Perry-Kessaris, ‘Doing Socio-Legal Research in Design Mode (Routledge
2021) 25; Perry-Kessaris (n 7) 8; Shauhin Talesh, Elizabeth Mertz and Heinz Klug,
261Exploring the Dimensions of Participation in Legal Design
modern legal theories, where lawyers are seen to have a dual role both
as the interpreters and the creators of the legal system.40 When engaging
with dierent viewpoints on legal maers through parcipatory prac-
ces, legal draers themselves have the potenal to learn something
new that benets their legal thinking and lawyerly pracces, and even-
tually the whole system.41 Learning is therefore a fundamental element
of posive change. As Buur and Mahews point out, ‘When presented
with an account of an exoc foreign mindset, we are compelled to view
our natural assumpons and pracces in a new light.42 If lawyers did
not encounter dierent, outsider viewpoints to law (and to life!), the
legal system would not receive the necessary informaon to reect its
internal biases and to imagine, test and build beer working legal con-
cepts and arfacts - for the sake of its own well-being.43 Human-centric
and parcipatory design methods can therefore work as praccal tools
to gather and analyze legally relevant informaon for the internal use of
the legal system.
Parcipatory methods also have the potenal to gather knowledge of,
and make visible, the other dierent social systems and purposes that
inuence the legal design soluon. As noted in previous legal design
research, arfacts recognized inside the legal system as ‘legal arfacts’
can also have dierent uses outside the legal system.44 Contracts are
one example. If contracts are understood merely as ‘legal documents’,
it is natural to expect them to be wrien by lawyers using specic ‘le-
galese’ language and clauses that prepare pares for a possible legal
dispute.45 From a business perspecve, however, contracts can be seen
as tools that,for example, help manage business commitments, create
‘Introducon to the Research Handbook on Modern Legal Realism’ in Shauhin
Talesh, Elizabeth Mertz and Heinz Klug (eds), Research Handbook on Modern Legal
Realism (Edward Elgar Publishing 2021) 1.
40 Tuori (n 9) 285.
41 Perry-Kessaris (n 7) 26-27.
42 Buur and Mahews (n 2) 4.
43 Perry-Kessaris (n 7) 3.
44 Hietanen-Kunwald, Haapio and Toivonen (n 3) 79.
45 Helena Haapio, ‘Business Success and Problem Prevenon Through Proacve Con-
tracng’ in P Wahlgren (ed), Scandinavian Studies in Law Volume 49: A PROACTIVE
APPROACH (Stockholm Instute for Scandinavian Law 2006).
262 Nina Toivonen and Santiago de Francisco Vela
and protect value, and realize nancial benets.46 If contracts were only
designed from the legal perspecve, the other purposes might remain
unsased. The dicult-to-understand legal text might even give rise to
misunderstandings and the neglect of one’s legal obligaons,47 risking
the contractual relaonship and its importance for the business. Par-
cipatory approaches can help recognize the arfacts’ dierent uses in
dierent social environments and create soluons that make sense in all
of them.48
2.2. …and Why It is a Parcular Challenge for Legal Design
The aims and philosophy behind parcipatory legal design are easy to
accept. In reality, however, based on our impressions and experiences as
legal designers in legal design projects, and as described in the legal de-
sign literature,49 pung the idea of parcipaon into pracce is trickier.
The ‘paradox of parcipaon’ may not only be due to the legal culture
and the possible tensions that arise when it encounters the cultures of
other disciplines or professions.50 Successful communicaon and deci-
sion-making with other people, especially when there are many, who
all represent dierent backgrounds, knowledge and ideals, is a universal
human challenge and somemes a mission impossible.51 We all per-
ceive and interpret the world from our own unique inner perspecve,
without the possibility of fully experiencing what it is to be ‘the other.
The way we see the world and intuively trust our own percepons can
somemes mislead us,52 making mul-level collaboraon a task that re-
quires parcular mindfulness, special methods and persistence in order
to succeed.
46 Anna Hurmerinta-Haanpää, The Many Funcons of Contracts: How Companies Use
Contracts in Interorganizaonal Exchange Relaons (University of Turku 2021) 37.
47 Robert Waller, ‘Designing contracts for human readers’ in Marcelo Corrales Com-
pagnucci, Helena Haapio and Mark Fenwick (eds), Research Handbook on Contract
Design (Edward Elgar Publishing 2022) 66.
48 Manzini (n 4) 35.
49 Comprehensively Doherty (n 6) 46; Hagan (n 6) 120.
50 Doherty (n 6) 32.
51 Geilfus (n 15) 1.
52 Emily Pronin, ‘How We See Ourselves and How We See Others’ (2008) 320 Science,
1177-1180.
263Exploring the Dimensions of Participation in Legal Design
Also, despite the popular interest that design thinking has gained dur-
ing recent years, the parcipatory methods and techniques of design are
not well known. If organizing mul-level co-work is a challenge as such, it
can be a bigger challenge when parcipants need to rst be introduced
to the mindset, principles and methods of co-design. Although the de-
sign literature suggests that ‘design’ can be seen as a common language
or as a connecng factor between dierent disciplines and stakehold-
ers,53 in reality, if people do not understand this language, it can connect
them in a counterproducve way, such that it becomes the common
enemy’. One reason for this could also be the way in which design as
a systemic and holisc approach challenges common thinking models.
The holisc and ‘free’ creave space that parcipatory design oers
may not be the environment where people feel comfortable to operate,
as it is not organized by similar mental frameworks, nor does it follow
the determinisc, linear logic that many classical professions are taught
to use.54 If parcipants do not recognize the way the design process
frames the problem solving, or how it can manage opposite viewpoints
and understandings and eventually help create something coherent and
sense-making out of them, they may experience the design process as
not at all organized, and lose interest in parcipang.55
Then there are of course our all-me favorite excuses – me and mon-
ey. 56 If doing a research interview or a stakeholder workshop adds the
expenses of a project, people with ght budgets and busy schedules like
to think that those things can be omied and that by doing so they can
save me and money. The ability to communicate the fundamental role
of mul-level parcipaon in a design process then becomes crical.
The above-menoned reasons are already enough to overwhelm a
legal designer who wants to successfully engage users and other stake-
holders in a legal design process. As we like to suggest in the following,
however, the concept of ‘legal’ and the dierent expectaons and mean-
ings that lawyers and society in general associate with it can give parc-
ipatory legal design projects an extra twist. In our view that is because
53 Marc Sckdorn and others, This is Service Design Doing (O’Reilly 2018) 21.
54 Fritjof Capra and Pier Luigi Luisi, The Systems View of Life. A Unifying Vision (CUP
2014) 4; Doherty (n 6) 46; Berger-Walliser, Barton and Haapio (n 22) 18.
55 Geilfus (n 15) 1.
56 ibid.
264 Nina Toivonen and Santiago de Francisco Vela
the legal system and the tradional legal culture around it tend to foster
a rather narrow understanding of what a ‘legal’ problem is and when a
lawyer is needed to solve it. The mul-disciplinary and creave design
process rebels against this narrowness and challenges both lawyers and
others to think dierently about law and the role of lawyers, causing
confusion about how to react to this challenge.
From the perspecve of the legal system only maers that have al-
ready been coded as ‘legal’ by the legal system itself – such as a queson
of ownership, the right to compensaon or the due process of ligaon
are proper ‘legal’ quesons.57 Tradionally people have approached
lawyers with their legal maers when a problem has already actualized,
or is about to actualize, and a legal analysis is needed to solve the con-
ict between the pares and their interests. This human tendency to
react to problems only once they have occurred has created a culture
where reacve problem solving is normalized, and prevenve or pro-
acve problem solving is perceived as its ‘alternave’ (or abnormal).58
Against this tradional or reacve style of lawyering it is understandable
that some lawyers may nd it irraonal to ‘embrace a designer mindset’,
ideate and prototype with stakeholders in a joint co-creaon process.
Solving legal problems from a pragmac and ‘human-centric’ viewpoint
together with the users of the law diers signicantly from the methods
that lawyers tradionally use, but also from what the society in general
has learned to expect from interacon with law and legal experts, as
well as from legal problem solving in general. Therefore, especially in
the beginning of a legal design project, there might be some confusion
about everyone’s role in the project, not just amongst the legal experts,
but also amongst the other parcipants.
But what is the ‘legal’ work that lawyers are familiar with and what
do people expect them to do? Lawyers’ parcular skill is legal interpre-
taon, that is, the ability to determine from various facts what is ‘legal’
and disnguish it from what is ‘illegal’ using informaon sources that
have authoritave value inside the legal system, such as legislaon, case
57 Luhmann (n 23) 17.
58 Gerlinde Berger-Walliser, ‘The Past and Future of Proacve Law: An Overview of
the Development of the Proacve Law Movement’ in Gerlinde Berger-Walliser and
Kim Østergaard (eds), Proacve Law in a Business Environment (Djøf Publishing
2012) 24.
265Exploring the Dimensions of Participation in Legal Design
law, or established legal principles.59 According to the above-described
Luhmannian socio-legal understanding, this is how normave expecta-
ons are created.60 Law school curricula, theories on legal analysis, and
the pracce of jurisprudence have developed around mastering this skill
and the duty to the legal system that it involves.61 Luhmann calls this the
autopoiesis of the legal system, a self-regulaon process that recreates
and maintains the system.62 Lawyers must follow the rules of legal anal-
ysis and interpretaon, ‘the laws of the law,’ to maintain the coherence
and unity of the system and the trust it enjoys in society.63 In a legal de-
sign project, this knowledge is also crucial. However, it is applied from a
dierent point of view, or together with other dierent points of view,
and at a dierent moment on ‘a legal problem escalaon axis’, oen to
prevent legal problems or to promote ‘legal wellbeing’.64
Fig. 1. The legal problem escalaon axis.
59 Luhmann (n 23) 17.
60 ibid.
61 ibid 44.
62 ibid 18.
63 Aarnio (n 27) 3; Perry-Kessaris (n 7) 3; Roger Coerell, Sociological Jurisprudence:
Jurisc thought and social inquiry (Routledge 2018) 31-33.
64 Legal Design Alliance, ‘The Legal Design Manifesto’ (v2) <www.legaldesignalliance.
org/#v2> accessed 8 February 2023; Helena Haapio, ‘Introducon to Proacve
Law: A Business Lawyer’s Viewin P Wahlgren (ed), Scandinavian Studies in Law
Volume 49: A PROACTIVE APPROACH (Stockholm Instute for Scandinavian Law,
2006).
266 Nina Toivonen and Santiago de Francisco Vela
The unusual roles and seng of a legal design project and the way
it requires lawyers to pracce their experse beyond the tradional
borders of law may therefore explain why some lawyers feel confused
and unmovated when invited to parcipate in design projects. Legal
design in its essence is not about solving acute legal conicts or reacng
to a past event with legal consequences.65 Legal design, just like design
in general, operates in a space of many potenals, where things may
not yet be denitely ‘legal’ or ‘illegal’, but perhaps have the potenal
to become such.66 When operang inside the legal system lawyers do
not have to deal with such open uncertainty and lack of structure when
solving problems, especially if they are called to acon when an issue
has already become ‘legal’, as there oen is a due legal process and rules
regarding how to proceed with it, and therefore, less alternaves regard-
ing how to deal with the issue.67 This moment is illustrated below in g-
ure 1.
As David Johnson points out, however, lawyers also know how to deal
with uncertainty, as they use their knowledge in a certainty-seeking
way.68 This supports the purpose of law, which is to create normave
expectaons, in other words certainty, predictability and connuum in
society. The challenge for the legal design movement is to make lawyers
and anyone interested in improving the legal system understand that
design can oer eecve tools for this purpose, but from a dierent per-
specve, at a dierent moment of me, in dierent spaces, and espe-
cially – as we like to highlight in this paper - with dierent people.
3. From Human-Centric to Parcipatory Legal Design
As discussed above, mul-level parcipaon diers from what law as a
profession and a discipline has tradionally excelled in. It can thus be a
real praccal dilemma for a designer or a design team to engage lawyers
65 ibid.
66 Johnson (n 36), 392.
67 Helena Haapio, ‘Introducon to Proacve Law: A Business Lawyer’s View’ (2010) 49
A Proacve Approach, Stockholm: Stockholm Instute for Scandinavian Law 1999-
2010, 29; Petra Hietanen-Kunwald, Mediaon and the Legal System. Extracng the
Legal Principles of Civil and Commercial Mediaon (Unigraa Helsinki 2018) 33.
68 Johnson (n 52) 392; Doherty (n 6) 48.
267Exploring the Dimensions of Participation in Legal Design
in muldisciplinary co-work, facilitate it, and bring out sasfactory re-
sults. However, as the design literature shows, parcipaon is a univer-
sal challenge in all design contexts, not just in law.69 To address this issue,
designers have developed alternave ways to understand and pracce
stakeholder involvement.
The parcipatory design approach, which emphasizes design with or
by users rather than designing for users, rst emerged in Northern Europe
in the 1970s as a method to increase the value of industrial producon.70
The parcipatory approach put together the experse and knowledge of
designers and engineers and the situated experse of the people whose
work was to be impacted by the design outcome. However, parcipatory
design shares the same philosophy of human-centered design (HCD), or
user-centered design (UCD), and the dierent approaches have recently
started to inuence each other.71 They both focus on understanding the
needs of the people who use a soluon or a design and propose that peo-
ple (as ‘humans’ or as ‘users’) should be involved in the design process.72
HCD and UCD have their origins in industrial engineering and computer
sciences.73 Donald Norman and Stephen Draper suggested in 1986 that
technology and design should be molded to the user’s capabilies and
needs and not the other way around.74 In his various works, Norman has
also emphasized designers’ need to understand human behavior and
the psychology that supports (or does not support) the funconality of
everyday things.75 Recently Norman has raised the idea of shiing the
design conversaon from humans or users to humanity.76 This shi pro-
motes systemic changes that impact the societal level rather than the
69 Geilfus (n 15) 1.
70 Sanders and Stappers (n 2) 7.
71 Sanders and Stappers (n 2) 13; Buur and Mahews (n 2) 2. Despite the dierence in
terminology, there is no essenal methodological dierence between human-cen-
tered design and user-centered design.
72 ibid.
73 Buur and Mahews (n 2) 4.
74 Donald Norman and Stephen Draper, User centered system design: New perspec-
ves on human-computer interacon (L. Erlbaum Associates 1986).
75 Donald Norman, Design of Everyday Things (Basic Books 2013) 7; Donald Norman,
The Psychology of Everyday Things (Basic Books 1988) 57.
76 Donald Norman, Design for a Beer World. Meaningful, sustainable, humanity
centered (MIT Press 2023).
268 Nina Toivonen and Santiago de Francisco Vela
individual level. It responds to the cricism of the HCD and UCD models,
that they have a narrow approach to people without considering individ-
uals’ relaonship with social systems, regulaons, or life itself. 77
What the HCD and UCD approaches also put less focus on is the po-
tenal of transformaon, innovaon and learning that parcipaon in
the design process has.78 The enhancement of users’ skills and knowl-
edge is one of the disncve elements that disnguishes parcipatory
design (or ‘innovaon’) from the HCD and UCD approaches.79 As we
suggest in this paper, focusing on the quality of human-centric methods,
rather than just approaching law with a ‘human-centric’ or ‘user-centric’
mindset or ‘design thinking’, may be more useful for the purposes of law
and legal design.
In the following we introduce three frameworks to implement parci-
patory design: 1) Giagomin’s ve crical quesons, 2) Sanders’ and Stap-
pers’ matrix of design, and 3) Geilfus’ ladder of parcipaon, and explain
how they can help legal designers frame their project understanding
from the perspecve of parcipaon, and how to incorporate a more
parcipatory approach to them. We also demonstrate the frameworks
using the parcipatory methods applied in the creaon of three legal
design soluons, as described in their published project reports:
1. The SMS system created by Evicon Prevenon Learning Lab (EPLL) at
the Legal Design Lab at Stanford University80;
2. The digital ‘Entutela’ tool by Labjuscia at the University of Andes,
Colombia81 ; and
3. Legal Service Design Toolkit (LSDT) by Hápca legal design consultan-
cy82.
77 The Interacon Design Foundaon, ‘What is humanity-centered design?’ <hps://
www.interacon-design.org/literature/topics/humanity-centered-design> ac-
cessed 8 February 2023.
78 Sara Beckman and Michael Barry, ‘Innovaon as a learning process: Embedding
design thinking’ (2007), 50 California Management Review 1, 25-56; Sanders (n 5).
79 Buur and Mahews (n 2) 4.
80 Verschoor (n 16).
81 Padilla Casas and de Francisco Vela (n 17).
82 Flechas, García and Escobar (n 18), Hápca is a Legal Service Design consultancy
based in Columbia, <hps://hapca.co> accessed 8 February 2023.
269Exploring the Dimensions of Participation in Legal Design
The Stanford Legal Design Lab’s Evicon Prevenon Learning Lab used
an SMS strategy to help tenants get helpful informaon when facing
evicon. For the development of the system EPLL used dierent sessions
and interviews with legal aid experts, tenant advocacies and universies
to understand best pracces regarding using text messages to empower
people in dierent stressed situaons related to legal issues.83 SMS
messaging was used for three primary purposes: rst, for outreach and
intake for evicon help and informing people about their legal status;
second, for ongoing engagement and parcipaon of tenants by sending
reminders and updates; and third, for tracking outcomes by monitoring
tenants aer they had received assistance.84
‘Entutela,’ developed by Labjuscia at the University of the Andes, Co-
lombia, is a digital tool that helps cizens dra and create a ‘tutela’, a
legal form for accessing fundamental rights in Colombia,85 without the
help of legal assistance. For the development of Entutela, exploraons
were made with cizens, lawyers, law students and judges. In each in-
teracon with these users, the design team sought to validate the con-
ceptual and funconal elements of the tool. Once the prototype had
been created and developed in an applicaon to create forms, it was
launched live to understand its scope and impact. With the results of
this exploraon, more than 100 tutelas were created in 4 months. The
second iteraon round of the design process focused more on the tool’s
user experience, its interface (no longer on a form), and the way the
situaons that make up the body of the tutela should be wrien. These
laer validaons were only done with the users of the Legal Clinic of the
University of los Andes.
The Legal Service Design Toolkit (LSDT) by Colombian legal design con-
sultancy Hápca is a compendium of tools and methodologies for de-
83 Verschoor (n 16).
84 ibid.
85 The tutela is the primary mechanism for safeguarding fundamental rights in Co-
lombia. It was introduced in the 1991 Polical Constuon and was intended to
be expedious, informal and subsidiary. According to the Constuon, a cizen
residing in Colombia can le tutelas without legal assistance and free of charge.
However, most people who want to le a tutela need the help of a lawyer, which
implies a charge for the draing and ling. In addion, tutelas are a case of conges-
on in the judicial branch. Today, 30 years later, more than 9 million tutelas have
been led in Colombia, see Padilla Casas and de Francisco Vela (n 17).
270 Nina Toivonen and Santiago de Francisco Vela
veloping projects in the legal eld. A designer, lawyer or innovator can
take this toolbox and use the cards that best suit their project. For the
development of the LSDT, Hápca used Beckman and Barry’s four phases
of innovaon86 as a reference to dene methodologies, tools or acvies
that allowed them to invesgate the projects they had developed.87 The
toolkit is divided into four phases: Discover, Interpret, Delimit, and Pro-
pose. For each phase, a series of acvies comprise the organizaon’s
know-how.88
3.1. Five Crical Quesons to Frame the Design Challenge
Based on our experiences as legal designers, when facilitang muldis-
ciplinary legal design work, it is necessary to pay aenon to the legal
context and the language that is used to describe the context to dier-
ent stakeholders and make the roles that dierent stakeholders have
clear and visible. When the dierent components of a design challenge
are illustrated holiscally as a starng point for the project, all of the
stakeholders can beer understand their unique role and the value of
mul-level parcipaon.89 Framing the design challenge from dierent
perspecves is especially useful to highlight how dierent stakeholders
are connected to the ‘legal’ problem, although they may understand it
dierently.
One way to do this visualizaon is to use Giacomin’s list of ve crical
quesons: ‘who,’ ‘what,‘when,‘how,’ and ‘why’ as its basis.90 The ve
quesons help idenfy the connecons between the dierent acvies
for a design strategy. In legal design, the model can help idenfy the de-
sired behaviors and the people whose behavior the legal design soluon
should seek to inuence and who should be involved in the legal design
process. We evaluated the three projects under Giacomin’s quesons
to understand the connecons between their design decisions and the
86 Beckman and Barry (n 78).
87 Flechas, García and Escobar (n 18).
88 ibid.
89 Sckdorn and others (n 65) 10.
90 Giacomin (n 13).
271Exploring the Dimensions of Participation in Legal Design
legal designer’s desired outcomes (for a summary of the projects see
table 1).
The rst and most important queson is ‘who’. It focuses on the peo-
ple or pares involved in the design process, especially the target users.
For example, in the EPLL’s SMS project, the target users were tenants
about to be evicted. In the Entutela case, the scope of the stakehold-
ers was broader, ranging from cizens to judges to lawyers and legal-aid
help providers.91 The target users of the Legal Service Design Toolkit
were Hápca’s clients, typically other lawyers.92
‘What’ describes the type of desired acvies, behaviors and func-
ons that the design soluon should support. In the case of the EPLL,
the desired outcome was to support tenants in making more informed
choices throughout an evicon process and empower them to take ac-
on for their own cause. If a tenant does not respond to an evicon
noce, they are more likely to be evicted and face a more complicated
legal situaon.93 In the Entutela case the ‘what’ is to help and educate
cizens to dra a proper tutela without legal assistance, but it is also
about giving them informaon about the legal system and how they can
navigate within it. Hápca’s toolkit aims at educang their clients about
design methodologies. When clients contract the design consultancy to
develop a legal services project, they must involve their organizaon’s
collaborators to understand and propose ideas. The toolbox helps them
as a means to integrate their vision with the employees’ experiences.
Who? What? When? How? Why?
EPLL’s SMS
system
Tenants
who are
being
evicted
Receive legal
informaon
about the
rights of a
tenant
Before,
during and
aer an
evicon
SMS
strategy
To help
tenants
represent
themselves
throughout an
evicon pro-
cess; improve-
ment of a
legal process
91 Padilla Casas and de Francisco Vela (n 17).
92 Flechas, García and Escobar (n 18).
93 Verschoor (n 16).
272 Nina Toivonen and Santiago de Francisco Vela
Entutela Cizens,
judges
and law-
yers who
use
tutelas
Know how
to structure
a tutela
During the
draing of
a tutela
Digitally
struc-
tured
template
To help ci-
zens represent
them right;
improvement
of the tutela
process
Legal Ser-
vice Design
Toolkit
Clients /
dierent
stake-
holder
groups
Learn
legal design
methodolo-
gies
During
legal design
workshops
Tools
and fa-
cilitaon
methods
Educaon,
skills improve-
ment; sociali-
zaon of legal
service design
methods
Table 1. Giacomin’s crical quesons applied to legal design soluons
The ‘when’ is about the interacon’s form and ming.94 In the EPLL
project the understanding was that there are three crical phases when
the SMS system must provide guidance to tenants: before, during, and
aer the evicon. The ming queson is more challenging to frame in
the Entutela project, as there are many possible reasons, and therefore
mes and places, to le a tutela. The Entutela soluon that enables ci-
zens to make their tutela forms online using a digital plaorm solves the
problem of accessibility, at least for users who can access the internet.
The Hápca’s toolkit is intended to be used during legal design work-
shops with clients and stakeholders.95
The queson of ‘how’ refers to semiocs, communicaon, and design
discourse.96 The EPLL’s soluon uses an SMS strategy to send informaon
that guides a tenant through an evicon process. SMS are also useful
for monitoring and tracking how the tenant’s legal process is proceed-
ing. The SMS’s also uses easy to comprehend language. Entutela uses a
digitally structured template that guides the user throughout the expe-
rience of draing a tutela. The tool is divided into secons that are navi-
gable back and forth. Each secon has easy-to-comprehend instrucons
and guidelines to complete the informaon.97 The LSDT is composed of
94 Giacomin (n 13).
95 Flechas, García and Escobar (n 18).
96 Giacomin (n 13).
97 Padilla Casas and de Francisco Vela (n 17).
273Exploring the Dimensions of Participation in Legal Design
dierent acvies according to the design phase. These acvies have
descripons and examples of how to use them. Also, the toolkit requires
a facilitator to provide guidance and respond to quesons while parci-
pants use the tools.98
The ‘why’ refers to the purpose of the design. In the context of legal
design, it is important to address the legal purpose of the arfact, while
acknowledging that arfacts can also have many other purposes that
can have value in creang a funconable outcome. Like in the example
cases, the purpose can be guiding tenants or Colombian cizens through
a legal process while informing them about their legal rights, so that they
can base their decisions on actual opons that the legal system provides
them. The ‘why’ can also refer to an objecve that supports other ob-
jecves, like training stakeholders to understand design methodologies,
so that they can start to implement them more independently and thus
socialize the legal design thinking and methodologies to their organiza-
on and beyond.
3.2. The Matrix of Design to Understand your Approach to Users
Sanders and Stappers originally proposed ‘the landscapes of design,’ a
four-quadrant matrix, to idenfy new emerging design pracces and un-
derstand the variaons of human-centered design.99 According to Sand-
ers and Stappers, there are four dierent ways to categorize the prac-
ce of design: 1) research-led with an expert mindset, 2) research-led
with a parcipatory mindset, 3) design-led with a parcipatory mindset,
and 4) design-led with an expert mindset. Research-led refers to design
pracces dedicated to understanding design contexts, either involving
(parcipatory mindset) or not involving (expert mindset) users. On the
other hand, design-led can be understood as design pracces dedicated
to implemenng soluons for (expert mindset or parcipatory mindset)
users.100 In legal design work, this matrix can help reect whether the
approach taken in the project is ideal considering the project’s purpose
and the need to involve users in fullling that purpose. However, as the
98 Flechas, García and Escobar (n 18).
99 Sanders and Stappers (n 2) 2.
100 ibid.
274 Nina Toivonen and Santiago de Francisco Vela
exercise below will show, not all legal design projects can be placed in
just one quadrant of the matrix; they can apply the dierent approaches
simultaneously. It is also useful to say that legal design projects can opt
for many dierent ways of approaching their users, and that applying
more of ‘an expert-mindset’ rather than a ‘parcipatory mindset’ may
not make their results less eecve.
The EPLL’s evicon project could be placed in the rst quadrant of
Sanders and Stappers’ matrix (see gure 1), ‘research-led with an expert
mindset’. As described in the project report, the project involved sev-
eral consultaons with dierent professionals who had experse about
managing evicon cases, and for example about how to use SMS as an
intervenon strategy, as well as the use of research data on typical pain
points in evicon procedures.101 Although it is not possible to evaluate all
of the details of the design methods used in the project based on avail-
able data, it seems that end-user understanding was created by using
more research-lead and experse approaches than by engaging users as
actual co-creators in the project. The need to understand the impact of
SMS messages and the phases of the evicon process and their legal and
behavioral eects supports the approach taken.
101 Verschoor (n 16).
275Exploring the Dimensions of Participation in Legal Design
Fig. 2. Examples of Legal Design projects mapped on a design matrix introduced
by Sanders and Stappers in ‘Co-creaon and the new landscapes of design’, Inter-
naonal Journal of CoCreaon in Design and the Arts, 4, 5-18, 2008. © Sanders
and Stappers, 2008. Reproduced with permission.
The approach taken in the Entutela project could be placed in the
second quadrant of the matrix, ‘research-led with a parcipatory mind-
set’, but between the design-led’ and ‘research-mindset quadrants.
In the project it was necessary to understand profoundly the various
experiences of dierent users and create common language and com-
municaon tools to reach that understanding. The project team used
dierent generave tools, such as low and high-resoluon prototypes,
to dynamically understand and meet the needs of dierent stakehold-
ers.102 The project team also conducted several interview studies with
102 Padilla Casas and de Francisco Vela (n 17).
276 Nina Toivonen and Santiago de Francisco Vela
cizens to understand their experiences in draing tutelas, as well as
with law students, lawyers, and judges to understand their perspecve
in the process.103 Although the user groups had a possibility to inuence
the design outcome, the design team made the necessary decisions to
guide and manage the design process.
The case of Hápca diers from the two previously menoned pro-
jects, because it itself is a tool to engage and acvate dierent stake-
holders and groups to design for themselves. Therefore, it could be
placed within the quadrant in the corner, ‘design-led with a parcipatory
mindset’. It was designed by legal design experts to socialize legal ser-
vice design methods and understanding, and therefore not only aims at
improving people’s parcipaon in projects but also provides them with
opportunies for learning and self-improvement. The toolkit could also
be categorized as generave design research.
3.3. Ladder of Parcipaon to Choose your Methods
Geilfus’ ladder of parcipaon idenes seven levels of parcipaon
determined by the degree of decision-making that parcipants have in
the process (see table 2).104 The rst two levels 1) passivity and 2) infor-
maon providing refer to low user involvement in the design process,
especially to the level of agency and decision-making they have in the
process. Users may be asked to parcipate for a certain period of the
process, or to ll in surveys or quesonnaires, but they have no say in
how the informaon they have provided should be used.105 The next two
levels are 3) consultave parcipaon, and 4) incenve-based parcipa-
on. Design methods that consult users and hear their opinions to cre-
ate the outcome, yet do not give users the power to make that decision,
can be called consultave. EPLL’s design methods could be categorized
as consultave. EPLL developed a prototype for sending SMS messages
to inform people who are about to face evicon. Aer the implemen-
taon phase, workshops were organized to idenfy the good pracces
of each actor involved. Virtuous cases were idened during these ses-
103 Padilla Casas and de Francisco Vela (n 17).
104 Geilfus (n 15) 3.
105 ibid.
277Exploring the Dimensions of Participation in Legal Design
sions where SMS had had a more signicant impact.106
Incenve-based parcipaon methods involve users or stakeholders
who supply labor or other resources in exchange for certain incenves. A
good example could be an organizaon that provides a test environment
for a prototype and does not get to directly decide how the prototype is
improved due to the tesng, but as an exchange gets useful informaon
about the test to improve its own operaons, or a possibility for learn-
ing.107
7Self-development
6Interacve parcipaon Entutela by Labjuscia Uniandes
Methods: Paper prototyping sessions, mockup
navigaon, prototype evaluaon, funconalies
hierarchy
5Funconal parcipaon LSDT by Hápca
Method: Working sessions with facilitator with
mulple stakeholders
4 Incenve-based
parcipaon
3Consultave
parcipaon
EPLL by Legal Design Lab Stanford
Method: Interviews with experts upon SMS strate-
gy results
2Informaon provider
1Passivity
Table 2. Examples of how legal design methods can be located on Geilfus’ ladder
of parcipaon.108
The last three steps on the ladder are 5) funconal parcipaon, 6)
interacve parcipaon, and 7) self-development. The methods mostly
used in the Entutela project could be dened as funconal parcipaon.
106 Verschoor (n 16).
107 Geilfus (n 15).
108 ibid.
278 Nina Toivonen and Santiago de Francisco Vela
The project involved dierent stakeholder groups to meet pre-estab-
lished project objecves, but they had lile to no role in the project de-
sign. For example, lawyers and law students were invited to experiment,
navigate and evaluate the prototype of the Entutela. Judges helped
idenfy the elements they considered essenal for a tutela to be under-
stood, and once the online version was launched in collaboraon with a
courthouse, the results were analyzed with the help of some of the users
who had sent their tutela through the system.109
Hápca’s toolkit can be viewed as supporng interacve parcipaon,
or even self-development. Interacve parcipaon soluons help organ-
ize stakeholders to parcipate in project design, and its implementaon
and evaluaon. They also involve a systemic and structured teaching and
learning process, as well as a progressive transion toward control and
management by the stakeholders.110As in Hápca’s case, it is important
for a design agency to create their own tools and methods that support
the specic needs their clients have in design projects, so that they can
re-apply them if needed in future projects. To support this aim Hápca
has also launched its own legal design courses under the name Hápca
Academy, where people interested in mastering legal design methods
can train their skills using the toolkit.111 Both the toolkit and the courses
support stakeholders’ possibility to take their own iniave in legal de-
sign projects, without waing for an external input from an expert. At
this level of parcipaon the roles of the designer-experts and the users
have ipped: it is the expert that is being consulted, not the other way
around.
What is noteworthy is that all of the example legal design cases rep-
resent a relavely high level of user and stakeholder engagement. This
may be due to the social and systemic nature of the design projects, as
well as the use of various design methods that as such require acve
parcipaon from stakeholders. This supports the view of legal design
as a genuinely parcipatory design approach.
109 Padilla Casas and de Francisco Vela (n 17).
110 Geilfus (n 15) 3.
111 Hápca (n 73).
279Exploring the Dimensions of Participation in Legal Design
4. Discussion and Implicaons
Our exploraon in this paper has shown that the central idea in legal
design, to make legal systems more human-centric and parcipatory, is
more mul-layered than the everyday discussion about legal design of-
ten implies. First of all, there are mulple ways to reason this approach.
The most important, and well acknowledged, reason is that the legal
system itself needs informaon from mulple perspecves to funcon
beer. Dierent stakeholder groups and the end-users of the law can
help lawyers, legal scholars, government ocials and other caretakers
of the legal system to reveal its internal biases and develop arfacts and
systems that are more in line with the purpose of law. One purpose of
the law, as understood in contemporary legal thinking, is to guide human
behavior by creang normave expectaons. This behavioral aspect of
law also necessitates that the people whose lives are being inuenced
by the results also get to take part in the knowledge formulaon and
decision-making processes regarding the design, not just by providing
informaon, but also through having agency and validang the meaning
and acceptability of the result.
There are also mulple reasons why parcipaon is easier said than
done. Parcipaon is a challenge in all design projects, and various au-
thors in the design literature have provided their understanding of the
phenomenon. However, in this paper we have focused on the special
features of the legal context that can make collaboraon in design pro-
jects trickier. Law, both as a professional culture and as a method of
problem solving, tends to reject anything ‘non-legal’. It is easy to under-
stand that the legal system can only dene, recreate and sustain itself
in society with its own communicaonal codes (‘legal’/’illegal’) and its
own communicators (lawyers, courts, legislaon etc.) for the purposes
of legal certainty and rule of law. However, proper lawyering does not
only have to refer to reacve style problem-solving, working ‘with an
expert-mindset’, or solving problems alone using only legal facts and le-
gal informaon sources. If more lawyers, but also more people in gen-
eral, understood that aside from the tradional and somewhat exclusive
styles of lawyering there is space for human-centric, parcipatory and
creave problem solving, perhaps more people would feel welcomed to
280 Nina Toivonen and Santiago de Francisco Vela
be involved in it. As we have discussed above, both of these approaches
aim to fulll the same purpose of legal certainty.
The third dimension explored in this paper is the concept of ‘parci-
patory design’ itself. Although the concept has its origins in human-cen-
tric and user-centric design approaches, it goes beyond understanding
the user to providing them with decision-making power and experiences
of learning and innovaon. The design literature reports several frame-
works and methods to plan and reect the parcipatory approaches to
be taken. In this paper we introduced three of them. Giacomin’s ve rhe-
torical quesons can help break the design challenge into areas of ‘who’,
‘what’, ‘how, ‘when’ and ‘why’, and answering them will show what di-
recon and level of parcipaon might be needed to ensure working
results. Framing the project with these core quesons at the beginning
of a workshop, for example, will also show the parcipants what infor-
maon and perspecves are needed from them, as well as from others.
Once the desired scope of the project has been dened, legal design-
ers can use the Sanders’ and Stappers’ design matrix to reect what type
of approach to users, as subjects (‘expert’) or as partners (‘parcipa-
tory’), and design tools, tools to understand (‘research’) or to implement
(‘design’), to take. This exercise can help legal designers understand their
own role in the project (a ‘designer-expert’ or a ‘facilitator’) and the pros
and cons of their approach and create awareness about which type of
tools and methods would support reaching the desired outcomes.
The third framework, Geilfus’ ladder of parcipaon, completes the
matrix exercise and can be used to choose concrete parcipatory meth-
ods. Each level on the ladder refers to a certain type of a method. In the
case of legal design it is useful to be aware that the higher the ladder, the
more the methods on it give agency to the users and other stakeholders.
For instance, if a legal design project has elements of research-led and
expert mindset approaches, we would recommend looking for ‘funcon-
ally parcipatory’ methods that create a collecve understanding about
the topic, but also have elements that make users’ point of view visible
and give them a chance to analyze what the soluon would mean for
them. In pracce this could mean conducng interviews with experts
in the eld, but also with users, for example using social cartographies
281Exploring the Dimensions of Participation in Legal Design
as tools. 112 Social cartographies help mul-disciplinary teams create a
common understanding about the topic or challenge they need to solve
by formulang visual and tangible maps.
The exploraon journey taken in this paper was a brief one. More re-
search would be needed to beer understand the elements and tensions
of parcipaon in legal design, especially from praccal perspecves.
The queson of who should be allowed to design law and legal arfacts
is provocave which reveals how important it is to have an ongoing dis-
cussion about the topic. If legal design has a specic purpose in improv-
ing the legal system, it should be about inving dierent disciplines and
users of the law to be part of legal design teams. This also calls for mind-
fulness about not fostering a too narrow understanding of ‘the legal’
when it comes to legal design. A brief look into the parcipants’ back-
grounds at legal design events, seminars, workshops and social media
discussion threads shows that the idea of applying design in the contexts
of law seems to aract and engage mostly other lawyers. Although it is
only natural for legal experts to be interested in topics related to their
own profession, it seems, however, that there is sll a way to go for le-
gal design to be a truly muldisciplinary approach. If not mindfully ad-
dressed, there is a risk of legal design becoming a mere fragmentaon
inside the legal system, not an approach that can connect people and
generate impact and change. It should therefore be the collecve aim of
the legal design movement to create and promote alternave and easi-
er-to-access spaces for mul-level collaboraon in legal contexts.
There are many iniaves, projects, labs and working groups that are
leading by their example.113 More research would be needed to map
their goals, methods and insights on mul-disciplinary approaches to
law. One example can be found from Lan America. Labjuscia at the
University of Andes in Bogotá, Colombia, connects an interdisciplinary
team of designers, lawyers and engineers to approach real-life problems
of access to jusce from a systemic design perspecve.114
112 Miguel Navarro-Sanint, ‘Social cartography for social innovaon: A design ap-
proach’, in Proceedings of the XVII Conference of the Iberoamerican Society of Dig-
ital Graphics (SIGraDi: Knowledge-based Design 2013).
113 Some examples menoned by Hagan (n 9) 122.
114 Sanago De Francisco Vela, Laura Guzman-Abello, Sanago de Pardo Rodriguez
(2021) ‘Design for Jusce Lab: Interdisciplinarity in Times of Virtual Educaon’ in
282 Nina Toivonen and Santiago de Francisco Vela
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Chapter
Full-text available
Access to justice is one of the most critical issues in law. The legal justice system needs a transdisciplinary approach to ensure better access to justice. This article presents a methodology that combines the principles of Legal Systems, Legal Design , and Systemic Design to be applied to the context of access to justice. This methodology has been developed through an undergraduate course for law, design , and engineering students at Universidad de los Andes in Bogota, Colombia. It considers three primary contexts: legal, social, and users. We have developed a methodological guide that starts with the definition of the regulatory framework , then identifies users´ perspective, followed by the interaction between users to build the social system. The conjunction of these three elements defines the boundary and requirements of prototypes, which are iterated and validated with potential users. The application of this iterative methodology has allowed students to reframe the problem, present a robust diagnosis, and propose solutions to the studied situation. In the end, we present one successful case of the application of this methodology: the reduction of pro-bono cases that remain untaken by lawyers .
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Contracts with a high proportion of boilerplate or small print are not designed with readers in mind, and so few people read them. We need to go beyond surface-level optimisation (plain language and legible type) to develop a transformational approach rooted in an understanding of user needs and behaviours. The roles of strategic reading, literacy, context, and inference are reviewed to explain why users trip over unexpected contract terms. Viewing contract-related problems as‘cognitive accidents’ changes the perspective from legal accuracy to duty of care. Processes are key, with multi-specialist teams, user-centred methods, and risk assessment combining to arrive at new design patterns, leading in time to a new genre of human-readable contract.
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En Háptica hemos tenido la oportunidad de aplicar la metodología de Legal Service Design en espectros muy diversos del sector privado, los cuales involucran entre otros sectores el financiero, farmacéutico, tecnológico y retail. En el desarrollo de varios de estos proyectos, impactamos el sector público desde un rol que buscaba rediseñar la prestación de un servicio legal en un ámbito prevalecientemente privado, pero que tiene directa relación con lo público, como Diseñar documentos legales que requieren de la revisión de una entidad pública o de su uso constante, al ser una entidad de vigilancia de esta organización privada. Por otra parte, también hemos trabajado como consultores de entidades públicas, donde el objetivo ha sido rediseñar servicios y puntos de contacto legales para un contexto público de principio a fin. De estas experiencias, y al haber tenido la oportunidad de trabajar desde la visión de Legal Service Design en el Diseño de servicios públicos y privados, buscamos comparar ambos contextos con el fin de entender las similitudes y diferencias en la aplicación de la metodología y las herramientas de Diseño legal. Por lo tanto, la idea es que, a partir de la revisión de experiencias concretas, podamos verificar si intervenir un contexto público o privado debería requerir de cambios o adaptaciones considerables en el método. En el caso en que la respuesta a esta pregunta sea afirmativa, evaluaremos qué cambios estructurales hemos visto necesarios en el método y sus herramientas. En el caso en que sea negativa la respuesta, analizaremos en qué forma los retos de lo público se han adaptado a dichas herramientas y se ha cumplido con los objetivos no solo de Diseño sino también legales de un ecosistema público.
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Most legal content and procedures turn out to be so complex for citizens. Many of these are found in laws, decrees, statutes, and regulations considered legal artifacts. To access legal services, citizens require a lawyer’s assistance. So, how can an average citizen - a non-lawyer - access legal services without advanced knowledge or a lawyer? One possibility to bring citizens closer to judicial services is the design of legal interfaces. These interfaces serve as a medium between users and artifacts. The Rapporteur is a proposal for a legal interface to visualize health guardianship files. This interface is built from Storytelling, data visualization, and Legal Design principles. The result shows a proposal for constructing Storytelling for health tutelas actions in Colombia. The aim is to improve the legal experience of citizens who want to compose a tutela by generating new transparent and reliable legal interfaces.
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