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The need for a Legal Design metatheory for the emergence of change in the
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 “Legal Design as Academic Discipline: Foundations, Methodology,
Applications”

The need for a Legal Design metatheory for the emergence of change in the
creative legal society.

Joaquín Santuber 1,2​, Babajide Owoyele 1​​ , Lina Krawietz2, Jonathan A. Edelman​1

ABSTRACT

In this paper, we propose the need for a metatheory approach for Legal Design. Such an
integrative conceptual approach is necessary to address the complexity of the legal
system and its multidimensional challenges through several sensemaking lenses and
explanatory frameworks, as society moves from consumption and recently communication
into a creative one. As a multi-lens approach, a Legal Design metatheory may leverage
from different disciplines in order to propose a robust theoretical foundation that helps to
make sense of the experience and practice of Legal Design. In order to foster the
academic discussion we propose some theories from which a metatheory could be built on
namely (i) autopoietic systems (Maturana & Varela, 1980) (ii) social systems theory from
Luhmann (1990) and (iii) creative systems theory by Iba (2010) and (iv) Design theory by
(Mckim 1959 and Kerry-Pessaris, 2018). The meta-theory focuses on the emergence of
social-legal change from the interaction between psychic, social-legal and creative
systems while proposing Legal Design as a network to facilitate the coupling of these
systems. Legal Design as a network requires media in the form of conceptual models and
frameworks to support the practice of legal design. To exemplify this media, the paper
leverages a Design research model: the Dimensions of Engagement model for radical
innovation breaks (Edelman 2011, 2012). The discussion we aim to promote is which
theories can provide the foundations of metatheory for Legal Design to address the
emergence of change in the creative legal society.

THE NEED FOR A METATHEORY FOR THE CREATIVE LEGAL SOCIETY.

In this paper we propose the need of a metatheory for Legal Design. Such an integrative
conceptual approach is necessary to address the complexity of the legal system and its
multidimensional challenges through several sensemaking lenses and explanatory
frameworks, as society moves from consumption and recently communication into the
creative society. Takashi Iba describes the creative society as a society in which people
“create their own goods, tools, concepts, knowledge, mechanisms, and ultimately
the future with their own hands. The creative society handles creation as an event
not limited within the enterprises, separate from work labors. Therefore, the coming of
the Creative Society must be viewed not just as a change in how companies and laborers
operate, but as a dynamism of the society as a whole” (2013).

1
HPI-Stanford Design Thinking Research Program, Hasso Plattner Institute, Potsdam University
2
This is Legal Design GbR

1
 Fig 1. Legal Design as a facilitator of the transition from the Communication Legal Society to the Creative
Legal Society.

The Creative Legal Society

In “Law as a Social System”, Niklas Luhmann, posits the evolution of law both in society
and with society. The legal system “differentiates itself from the society which constitutes
its environment” (Přibáň, 2005). In the last decades, our society has changed from a
consumptive society to communication and is now moving towards a new paradigm: the
creative society (Resnick 2007, Florida 2002, Iba 2013). This necessitates that the legal
system, like our society, requires a paradigm shift too.

In the creative society, consumers not only receive products or services and engage with
the providers via feedback and customised requirements but also generate the solutions to
their own needs (Iba 2013), acting as so-called “prosumers”. The emergence of the
creative society implies a paradigm shift. The creative society has an environment which is
no longer considered as a given, fixed and consolidated reality but rather as a raw material
to create from. The environment of the creative society will not only allow its design but will
solicit from groups and individuals in constant redesign cycles (creation). An existing
example of successful creative society communities is the GITHUB open source software
and the Wikipedia editors community (Iba 2013). In a smaller scale, legal hackathon
formats or legal design workshops and jams constitute sparks of what in the future will be
widespread and commonplace in the Creative Legal society.

Under the new paradigm of the creative society, the capability to “create” will no longer be
exclusive of corporations but available to teams of individuals and communities. Creation
not only refers to the already existing maker's movement (3d printing, Lego) and mobile
fabrication, e.g. laser cutting but will extend to services and even systems, e.g. health
systems, legal systems (Baudisch and Mueller 2016).

2
The legal system is already in transition to the Creative Legal society. In the past decades,
we have witnessed how subject areas that usually belonged to the periphery of Law have
introduced innovation and have earned a place at the centre of it. That is the case with
Legal informatics which “has moved from technical periphery to power in practice, hence
acquiring a new quality and becoming a player in the legal community” (Cyras and
Lachmayer 2013). This movement has been critical in the shift from a consumption legal
society to a legal communication society. In the last few years, Legal Design has emerged
pushing from the periphery to the centre of the legal system introducing concepts like
human-centeredness, creativity, visualisation in legal communications. The practice of
Legal design has set a pluripotent foundation on how Legal Design can be done. This
practical development is now pushing to set the foundations of Legal Design as an
academic discipline, that scientifically exploits observations and empirical values from
practice and traces them back to underlying theory.

The need for a Legal Design Metatheory

This research paper addresses the need for a theoretical foundation of Legal Design,
which is to be understood as ‘conceptual frameworks for establishing definitions, models
and explanations that help us to make sense of our experience and observations’
(Edwards, 2010, p.37). In an attempt to build a metatheory, we seek to show the relations
between the different concepts of the theories built on, merging their elements into a
conceptual system that sets the theoretical foundations of Legal Design (Wacker, 1998).

In his essay, “The Quest to Global Pluralism” (2013), Mikhail Antonov very aptly draws
attention to how the “growing complexity of the world requires a multidimensional
approach which tries to embrace every aspect of reality”, that “the realities referred to as
‘global’ ones necessitate reconstructing the traditional vocabulary of legal science” and
that therefore “a more detailed analysis needs to be focused on some particular [...]
elements of legal culture, even if such elements would be extremely large (as legal
thinking or legal argumentation).” Metatheorizing is specified as a multidimensional way of
scientific sense-making and therefore conceivably qualifies as an appropriate approach in
the context of legal complexities.

Barbara Paterson and her colleagues define metatheory as “a critical exploration of the
theoretical frameworks or lenses that have provided direction to research and to
researchers, as well as the theory that has arisen from research in a particular field of
study” (2001, p.91).

We propose a Legal Design metatheory that may, congruent to Antonov’s words, serve the
needed “explanatory force” in the changes “in law, society or anything else in the human
world”(2013). We believe that this proposed metatheory could also help Legal Design
practitioners to develop a deeper understanding of legal design, using the theories as to
the objects of reflection.

In the spirit of setting a space for a metatheory for Legal Design as an academic discipline,
we propose some theories from which we could leverage. Such theories are (i) autopoietic
systems (Maturana & Varela, 1980) (ii) social systems theory from Luhmann (1990) and
(iii) creative systems theory by Iba (2010) and (iv) design theory. These four “theories” are
used “as the raw material, the conceptual facts from which metatheory is built” (Edwards,
3
2010, p. 41). It is important to state here that our meta-theory approach is a ​pluralistic
lens​​ rather than a totalizing one.

Our integrative approach, serving as a starting point of a bigger and iterative quest of
building a metatheory for Legal Design. It is an open-end process, in which different
theories are evaluated, providing “a methodical, robust, and pragmatic perspective on the
theories they encounter” (Reams, 2011).

According to George Ritzer's thoughts on theories, “what counts is whether they make
sense and whether they help us understand, explain, and make predictions about the
social world (1990, p.2.)

In this light, our research questions are:

(1) Which theories constitute a source to build a robust and scientifically based
metatheory of Legal Design?
(2)What characterises a metatheory that facilitates the emergence of radical change
in legal systems?

A THEORY OF THEORIES - the raw material.

Figure 2: Legal Design Metatheory (Maturana and Varela, 1980, Luhmann 1990, Iba 2010,McKim 1959)

(i) Autopoietic systems theory​​.

The term autopoiesis (auto: self, poiesis: generation) was first formulated by the Chilean
biologists Humberto Maturana and Francisco Varela for living systems. Autopoietic
systems are self-organised, self-generative and operatively closed systems. This means
that nothing of the system exists outside the system. However, it does not mean that the
systems are isolated from their environment - other systems. The realisation of the system
occurs through an enclosed operation that consists of a self-reference, hetero-reference,
and the combination of both. Despite its operational closure, the autopoietic systems are
cognitively open. To be cognitively open means that systems perceive and act on each
other reciprocally, and they represent an environment to one another. The interaction
between systems and their environment is called structural coupling. In a structural
coupling, environmental events can “trigger internal processes in an autopoietic system,

4
but the concrete processes triggered (and whether any processes are triggered at all) are
determined by the structures of the system” (Seidl, 2004). Through these perception-action
loops, the systems emerge and constantly reorganise and redefine themselves.

(ii) Luhmann’s autopoietic social systems theory.

Luhmann built on the original concept of living systems by Varela and Maturana and
applied it to social systems, which were thus conceptualised as “systems that reproduced
their elements from their elements” (Seidl, 2004). Communication is a constituent element
that makes up social systems. Furthermore, communication is generated from the
emergence of three components: information hetero-reference, utterance, self-reference
and understanding - a distinction between - or the combination of - information and
utterance. Social systems emerge from the communication - coupling as the interaction
between systems - of two or more psychic systems. In Luhmann's theory, the 'human
being' does not constitute a systemic unity but a conglomerate of organic and psychic
systems. The coupled structures of these systems give place to a social construct: person.
The constitutive element of a psychic system is the consciousness, which is generated by
the thought. What emerges from the coupling of two or more psychic system is the
constitutive element of social systems (Luhmann, 2004).
Therefore, the autopoietic approach represents society as "a self-reproducing system of
communication in which particular modes of communication crystallise within the social
system and form autonomous subsystems"(Michailakis 1995). Subsystems of the social
system are the legal, economic, political, religious, health system.

Legal system as an autopoietic social system.

The legal system is a specie of the social system. Further, Michailakis that "a system's
specific mode of communication makes it a normative closed system against the
environment". Therefore the legal system is “a self-reproductive system which organises
and conceptualises influences and demands from the environment regarding its norms
legal/illegal" (Michailakis 1995). The legal system is of communications that refer to the
distinction of what’s legal/illegal or lawful/unlawful, which answer is determined by the
system itself. The legal system interacts with the social system it belongs to as well as with
the other subsystems, and the creative system.

(iii) Iba’s autopoietic creative system theory.

Takashi Iba formulated the Autopoietic System Theory for Creativity, in which creative
processes are self-produced and self-organised closed systems (Iba, 2010). The
constitutive element of this system is Discovery, which emerges from the synthesis of
three selections (1) Idea - hetero reference, (2) Association - self-reference, (3)
Consequence - the combination of both. To emerge, the creative system requires an
action from a psychic system, as a contributor.

(iv) Design Theory

Robert H. McKim's Need-Based Design Theory is an overarching framework taking into
account design value, in which present-day design approaches with varying objectives
(e.g. focusing on design inception, finalisation, innovation, general usability etc.) can be
systematically compared. (Von Thienen et al. 2018). McKim’s theory in 1959 employed,
‘’advanced human-centred design conceptions by providing an elaborate account of
5
human needs, by clarifying the role of designs and designers in the process of cultural
development, and by providing guidelines to assess, or actively increase, design value’’.
According to McKim, “the ultimate purpose of design is to promote the well-being of people
by helping to gratify their basic needs’’. As his overall design framework is broadly scoped,
it also serves as a frame of reference to analyse and compare different present-day
approaches to design, such as innovation-focused design thinking and usability-focused
studies in Human-Computer Interaction (Von Thienen et al. 2018). Legal Communication
design is a new design field that already employs some design theory effectively.

Legal Communications Design.

In order to demonstrate validity, a metatheory for Legal Design must build on the existing
state of the legal design field. As a reference, we use a recent work by Amanda
Perry-Kessaris, in which she defines Legal Design as the deployment of “designerly ways
to enhance lawyerly communications” (2018). In her definition designerly means making
things visible and tangible, and experimentation. Lawyerly refers to the legal and social
unity. Her approach has a strong focus on legal communications, in the sense of being
“the core function to be performed by a designed outcome such as an instruction manual,
a promotional poster, the user interface of a smartphone”. The making of lawyerly
communications visible and tangible can also serve the purpose of “experimentation, and
of creating spaces of structured freedom” (Perry-Kessaris, 2018).

The adoption of design practices in the legal sector has enjoyed adoption at a greater
extent of information and interaction design scenarios. Some well known legal design
initiatives focus on making legal documents and legal information communicated more
efficiently through a better "usability" of current legal services. Some areas in which Legal
communication design has been applied are design patterns for data privacy (Haapio et
al., 2018) design patterns for contracts (Haapio and Hagan 2016), visual contracts
(Haapio, Plewe and de Rooy, 2016), legal communication (Curtotti, Haapio and Passera,
2015; Passera and Haapio, 2013 and Passera, 2018), legal information (Ducato, 2018).

In the last few years, owing to the popularity of Design Thinking, a human-centred design
has been adopted in the practice of Legal Design (Quintanilla 2018; Szabo 2010; Young
2011; Hagan 2018, 2016, 2013). The deployment of Legal Communications Design in the
legal practice set a solid foundation for a transition to the Legal Creative society.

Building on the concepts of psychic and social system from Luhmann’s theory and the
creative system from Iba’s theory, our approach to Legal Design is based on the
autopoietic systems theory. In this light Legal Design is characterised as a network that
articulates the coupling of the autopoietic systems.

Legal Design as a network of systems.

Legal Design is characterised as a network that articulates the coupling of the autopoietic
systems. The constructs are ​(a) human being, (b) creative process and (c) Law​​.
Therefore, Legal Design is materialised in the interaction of constructs. While the
formalities of a legal system restrain communication within the same, thus depriving it of
creative opportunities, networks can be described as continual, communicative
relationships of exchange, characterised by informality, innovative power and the ability to

6
self-organise” (Röhl 2013). Linking autopoietic systems, networks represent the context in
which Legal Design comes into play.

A network theory, complementing systems theory, as a construct of its own, has so far not
been fully developed (Röhl, 2013). The distinction between networks and systems is
difficult. In Luhmann's theory, networks have no unique position. However, networks could
be well “located as structural couplings between autopoietic closed systems” (Röhl, 2013).
Identitary creativity (being able to reinvent oneself in different ways), is closely linked to the
level and diversity of resources that an individual has at his disposal, that is; his network. A
small amount of resources limits the amount and diversity of the possible self (Kaufmann,
2005). In other words: the ability to innovate is based on the relatively free combination
and use of information and resources across functional systems, as displayed by networks
(Röhl, 2013).

For Legal Design to be applied as a network of systems, elements are required that refer
to the system, without necessarily being systems themselves. In the same way that
Luhmann’s social theory constructs a conglomerate of organic and psychic systems into a
person, we understand the elements of Legal Design as a construct of the respective
systems. Each one of the Legal Design elements – the human being, creative process and
the legal system – correlates with an autopoietic system. In that sense we use constructs.

Constructing Legal Design

Constructs operate as a form of a

proxy of the system in reference,
aiding in the to "grounding" of practice
concepts of the proposed legal design
metatheory. Constructs are abstract
concepts that together with other
constructs and concepts used to
create conceptual models. These
conceptual models are created to
represent and describe complex
events and situations (Edwards,
2010, p. 36). The metatheory of Legal
Design leverages constructs to
describe and explain the different
elements from the theories it builds
on. The constructs of Legal Design
metatheory are:

Fig 3: Constructs Of Legal Design

(a) The human being: ​refers to the legal designer or lawyer as a creative contributor,
someone who, through a collaborative process, involves people around him or her to
enable their creative capacity. The human being is the construct of the conglomerate of
psychic and living systems. It constantly interacts with the creative system in order to

7
redesign the legal system. In that sense, this is not just a role but rather a structural
disposition that manages the coupling with the other systems. In other words, it’s “a set of
characteristics that a person in any position can show to make the atmosphere and the
surrounding people more creative” (Nagai et al. 2016). It’s the construct of the psychic and
living systems.

(b) The creative process: ​is understood “not as products of intelligence, but as practices
of skill” (Ingold 2001). ​The creative process implies a shift from a common analytical,
purely intellectual problem-solving approach to a dynamic one in which the practitioner
observes the environment to draw a problem to act on. This creative process can guide
the creative society lawyer in terms of an “internalization of a matter of course that makes
it possible to set the action in motion” (Kaufmann, 2005 - own translation). It refers to the
skillset to explore “lawyerly concerns in ways that are at once practical, critical and
imaginative” (Perry-Kessaris, 2018) . It’s the construct of the creative system.

(c) The ​Law: ​is the “space” where Legal Design is deployed. This space is understood as
a “whole” that includes everything that has a legal implication. It comprises of fields that lie
at the centre, like legal dogmatics and legal theory, as well as peripheral sciences such
as legal philosophy, legal psychology, legal sociology, legal logic and legal informatics
(Cyras and Lachmayer 2013). Legal Design looks critically at the interaction of the Legal
system and other social and creative systems. In the sense of Legal Design, “law and
state founded on society is particularly suitable for meeting the demands of the future. [...]
Society and the economy are changing as a result of the decentralised structures of social
networks” (Weber-Grellet, 2013 - own translation). In other words, the legal system is
structured in a way that can perceive and act on human beings and the creative process.

Legal Design plays the role of a network, facilitating the interaction between the human
being, the creative process and the Law.

Fig 4 The constructs of Legal Design Metatheory

Media to support the coupling of systems

Based on the autopoietic social systems theory, the coupling between systems is
“uncertain” (Seidl, 2004). In other words, it may happen or not. The role of Legal Design is
to support the realisation of the coupling. According to Iba, social systems inherently
display the uncertainty of understanding others, the uncertainty of achievement and the
uncertainty resulting from communication between humans as closed and intransparent
psychic systems. These uncertainties can be overcome by employing media (Iba, 2010).
An example of media that supports the social system is language. It makes communication
between two psychic systems possible.

8
In the same way language has been developed, Legal Design media requires to be
created as a structure of references, which can be deployed as a ubiquitous and generally
accessible method of arranging all the ambivalent things that each encounters (Stalder,
2016). Therefore, the practice of Legal Design requires a media to facilitate the interaction
between the human being, the creative process and the Law. These media are models
and frameworks, deployed in concrete tools for the practice of Legal Design.

The structural coupling emerges as a perception-action cycle. In this loop, the perception
of one system from another system occurs, because the latter is acting on the first.
Following Iba’s analysis of the creative process, the human being perceives the legal
system and acts on the creative process as a contributor. The creative process perceives
it and acts on the legal system. The legal system perceives it and act on the human being
who originally perceived the legal system. Each cycle implies an adaption and
reorganization of each one of the constructs.

Fig 5 Media to support the coupling of systems in

the Legal Design Network

MEDIA FOR LEGAL DESIGN

The Dimensions of Engagement model

All design is redesign (Leifer, 2010). Therefore, we see Legal Design as the redesign of
legal systems. Innovation (redesign) of legal systems has, however, been very challenging
and requires a game-changing approach (Buchanan, 2017).

The Dimensions of Engagement model guides designers to identify the scope of redesign
on two levels (a) object and (b) the world in which object is envisioned. It serves as an
“instructive formula for understanding how design teams end up where they do” in terms of
generating incremental or radical outcomes (Edelman, 2011). Therefore, applying the
Dimensions of Engagement model to complement a systems approach to legal design,
promises a much more radical plethora of ideas about the two phases of our
understanding of the "core" of redesigning legal systems. The phases are : (a) the legal
design problem space, (b) design solution space.

9
The Dimensions of Engagement model ensures a more holistic and systemic view of
redesigning all-things-legal, including the systemic problems and the systemic solutions.
As against focusing on a linear, incremental legal design approach (redesigning the user
interface of legal documents as paper or digital legal object), we favour a shift to taking a
systems-level approach to exploring and improving the legal system.

This emergence connotes a departure from 'surface level' legal design, to one that
explores the "core" of changing the rules, processes, and ways the legal system runs on
as well as the network of legal subsystems. This departure also tends towards the idea of
what we call creative emergence in legal design guaranteeing that we not only (re)design
the past and present of legal systems, but also the future (Iba, 2016). The Dimensions of
Engagement (Edelman, 2012) is a perfect conceptual model fit to our notion of creative
emergence in Legal Design. We suggest applying the Dimensions of Engagement
framework to legal design to leverage legal communication in legal design scenarios.

Fig 6 Dimensions Of Engagement Frameworks (Edelman 2012)

LIMITATIONS

Metatheory leverages a multilevel approach by tapping into the strength of each one of the
component theories. An Integral Metatheory by Mark G. Edwards (2010) highlights that
“the lenses we work with shape what we create, as well as how we perceive. Metatheories
use these lenses to build their overarching conceptual systems”. This brings about the
limitation of pulling the given limitations of each theory used, into the construct of the legal
design metatheory. The quality of this approach is therefore very much dependent on the
quality of the representative sampling of the theories from different paradigms.

10
Furthermore, the metatheory approach is one that must be well understood. In this light,
the emphasis on the importance of theories (big picture) and models (little picture) is
equally essential for a metatheory to be effective. More detailed research should look into
each one of the theories to gain a deeper understanding of how do they complement each
other.

A second limitation of metatheory comes from it being seen as a ‘grand narrative’ and
totalitarian attempt, characterised by a lack of methodological rigour. An integrative
approach, as the one suggested in this work, seeks to combine different theories as an
open-ended and highly iterative process. Therefore, a metatheory aims to release the
practitioner from the totalitarianism of the use of only theories. A metatheory is essentially
flexible and source of multiple answers to the scientific sense-making process. An
overview of existing approaches to metatheory building includes covering traditional
scholarship, the dialectical method, meta triangulation, and multiparadigm inquiry as well
as Ritzer’s work in metatheorizing in sociology.

FUTURE WORK

The aim of this work is to provide a point of departure to the building of a Metatheory in the
context of the theoretical foundations of Legal Design.
A much deeper analysis of the theories which serve as ​groundwork for the Legal Design
metatheory is necessary. In the same directions, the exploration of new conceptual models
for the sake of ​domain specification is required to design method. Legal Design will
contribute enormously to the academia only when it is well designed and so we want to
apply rigorous ​design​​ theory next .
In this sense, the prototype presented is just a sample of a much larger work in progress
that aims to map a vast and robust repertoire of theories, models and frameworks, based
on scientific research. Subsequently, a ​multiparadigm review, analysis​​, ​metatheory
building and an ​investigation of its implications will be done. Finally we will conclude
the with ​evaluation taking on the model of metatheory building proposed by Mark G
Edwards (2010).

CONCLUSIONS

In this paper, we addressed the need for a meta-theory for Legal Design in the context of
creative legal society. To foster the academic discussion on the theoretical foundations of
Legal Design as an academic discipline, we proposed some potential elements of such a
metatheory. We proposed a systems approach in which the concept of autopoiesis,
Luhmann’s social systems theory and Iba’s work, as well as design theory, as the pillars
on which we further build our idea of Legal Design as a network to facilitate the coupling of
systems. In that, Legal Design deployment requires the support of models and frameworks
in the form of media to enable the realisation of the legal design practice; in other words:
the coupling of the human being, the creative process and the legal system.

The future Creative Legal Society provides not just for legal consumption or
communication, but ultimately for further creation by anyone and everyone passionate
about improving and further developing the legal society. There is no future awaiting us;
the future is created.

11
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