I. Concepts

socio-legal researchers conceptualize the world, including law, in terms of social relations and the values and interests that underpin or motivate them. Like many in the UK and beyond, I tend to think in terms of the typology proposed by German sociologist and jurist, Max Weber, to distinguish between values and interests that are “instrumental” (for example, motivated by a purpose or task), “belief-based” (for example, motivated by religion), “affective” (for example, motivated by love) or “traditional” (for example, motivated by custom).Footnote ⁶ As populations have diversified and the complexities inherent in notions of national identity have been exposed, so it has become necessary to identify more flexible units of social analysis. Here, I draw on UK sociologist and legal philosopher Roger Cotterrell, who has long argued that we ought to look less for “society” and more for “communal networks”—that is, for those patterns of relatively sustained and trusting interactions, centering on any of the values and interests identified by Weber, in which each of us is (typically multiply) engaged.Footnote ⁷ This is the lens through which I think about both the social life of law, especially law as a communal resource; and the socio-legal research process, especially socio-legal researchers as forming an (instrumental, but also potentially affective) communal network.

II. Values and Interests

Why do we (or ought we to) do socio-legal research—what values and interests does it (ought it to) serve? What is its function? For me, the most useful and meaningful answers to this question—at least in the English language—are to be found in Cotterrell’s recent work on sociological jurisprudence, which—like his earlier work on law’s role as a communal resource—is built on German foundations.Footnote ⁸

In Sociological Jurisprudence, Roger Cotterrell celebrates the role of “jurists”—that is, thoseFootnote ⁹ who, first, approach law as a “practical” as opposed to purely abstract or technical, “idea”; and, second, seek to protect and “promote” its “well-being,” rather than to merely exploit, “unmask or debunk it.” He argues that this juristic “promotion of a value-oriented idea of law,” which is “adapted to the specific, varying conditions of law’s sociohistorical existence is the most distinctive, perhaps ultimately the most difficult, form of legal expertise,”; and that it requires a distinctly sociological—as opposed to a black-letter law, or law and social theory—orientation.Footnote ¹⁰ For me, the unavoidable implication of Cotterell’s argument is that all socio-legal scholarship ought to be juristic. So how does such a juristic orientation translate into socio-legal practice?

First, a juristic orientation implies a focus on law as an empirical, real world, phenomenon. This aligns very easily with standard socio-legal practice which has for many decades, and thanks in large part to Max Weber, centered on systematic sociologically-informed studies of what I will call legal action—for example, of how police, judges, bureaucrats, activists, and/or litigants use, abuse, and avoid law. Second, a juristic orientation encourages the systematic, sociologically-informed study of “legal ideas”—for example, what are the core “values” present in law and society, where do they come from, and what are their effects? Again, this aligns with standard socio-legal practice, which in turn owes much to the work of Max Weber.

What makes a juristic orientation distinctive is that it can shed light on what legal values ought to be. This is controversial because sociology and, therefore, socio-legal scholarship, is traditionally directed to “understanding facts” rather than “applying values.”Footnote ¹¹ Specifically, Cotterrell argues, a juristic orientation gives an overarching, normative purpose for socio-legal scholarship—namely, unity. Drawing on the work of German legal philosopher Gustav Radbruch (1878-1949), Cotterrell proposes that we conceptualize law as a “triangle” composed of “three central values.” Of these, two are basic technical values that fall within even the thinnest of conceptions of law: Namely order (“or security or certainty”) and justice (or “equal treatment”). But the third value, law’s “(fitness for) purpose,” is dynamic and contingent. Its “content”—including “who and what are to be considered equal … and how justice is to be measured and realised” is derived from, and so changes with, “sociohistorical place and time.”Footnote ¹² The distinctive duty of the jurist who, by Cotterrell’s definition, seeks to promote the well-being of law as a practical idea, is to actively work to “hold” that “justice-order-purpose triangle of law together.” They must do this by conceptualizing law in ways that accommodate and promote diversity, specifically by “integrating as equally valuable subjects of law … all those living within the jurisdiction of a legal system.”Footnote ¹³ More specifically, the social function of law is to express the values and interests that hold us together, coordinate the differences that keep us apart, and encourage participation in social life.Footnote ¹⁴

The upshot for socio-legal researchers is that we have a juristic duty to promote social and legal unity from and for social and legal diversity. In my view, that duty applies to us both in our capacities as members of socio-legal research communities, and in relation to the impact that our research might have on communal networks beyond academia. At the heart of this duty is, I argue, a tension between unity/structure and diversity/freedom on the other:

This need to navigate the tension between structure and freedom, and this emphasis on law as a communicator, are clear points of contact between law and design. Furthermore, a juristic commitment to the well-being of law as a practical idea calls for skills, knowledge, and attitudes that are at once practical, critical, and imaginative; and, as will be seen below, this constitutes the third point of contact between law and design. What I did not fully appreciate before the opportunity presented by the workshop is that these points of contact exist in large part thanks to 19th and 20th Century Anglo-German efforts to organize design into a socially-attuned practice.

I. Design as Social Relations

The Arts and Crafts movement and the Bauhaus school both demonstrated a keen awareness of, and willingness to exploit, the relational dimensions of design. The Bauhaus Preliminary Course (Vorkurs) was the first, at least in the global North, to systematize the teaching—and therefore practice—of design, and remains perhaps its most influential legacy.Footnote ²¹ The course “emulated Arts and Crafts practices,” not only in its “promotion of the applied arts and integrated design” but also in its communal “workshop-based system.”Footnote ²² Although “its character changed significantly” with each lead instructor—Johannes Itten, László Moholy-Nagy, and Josef Albers—it nevertheless “served as a unifying experience for students and a common ground from which all began their studies,” because all “students, be they joiner, bookbinder, potter, weaver or stage designer received the same instruction.”Footnote ²³

More specifically, and in today’s terminology, we can say that they understood design as a form of sociomaterial relations. Course leaders at the Bauhaus echoed the Arts and Crafts movement’s determination that designers and users alike should fulfill their “psychological and sensory needs” by “the acts of creating, using, touching, and perceiving.”Footnote ²⁴ For example, Johannes Itten saw experimentation as a way to “unlock students’ creative potential,” which he sought to do using “several unorthodox techniques, including rhythmic and improvisatory drawing,” “gymnastics,” and “other body-based, meditative” practices which were conducted communally. Under course leader Josef Albers, students were asked to complete a series of experiments—"practical, concrete exercises”—that emphasized “process” and “learning through doing”.Footnote ²⁵

The outcomes of these regular experiments were brought together into a shared space and assessed. Although they were intended to function as mere drafts or prototypes, such examples still exist—even the names and specifications of the experiments—and are today, 100 years later, treated as artistic works and are exhibited in major art galleries around the world—either in their original state or reproduced in larger form. But it is rare to see them as they were intended—as a collection of experiments on a common theme that generated a sense of community.Footnote ²⁶ Figure 4).

Figure 3.

Assessment of work from Albers’s Preliminary Course, 1928-1929.

Figure 4.

Vorkurs exercises celebrated (a) as a list and (b) in large scale, high quality reproduction.

II. Design in and for Social Relations

Members of the Arts and Crafts movement and the Bauhaus understood design(s) normatively, as tools for shaping social relations. They pursued a—then radical—agenda of making design relevant, appealing, affordable, and even transformative to all, including the relatively poor. For example, Morris asked in 1883, “[w]hat business have we with art at all unless all can share it?”Footnote ²⁷ Likewise, “[u]niting all of [the Bauhaus’] multiple tendencies and impulses was an attempt to put art and architecture to use as social regeneration for the world’s working classes.” But it took some time to get there: Gropius originally wrote in his 1919 manifesto that “[t]he ultimate aim of all artistic activity is building!” and “[t]he ultimate, if distant, aim of the Bauhaus is the unified work of art.” But in 1929 thendirector of the Bauhaus, Hannes Meyer, “consciously revised the statement, in poetic form, no less: ‘thus the ultimate aim of all Bauhaus work/the summation of all life-forming forces/to the harmonious arrangement of our society.’”Footnote ²⁸ Relatedly, both the Arts and Crafts movement and the Bauhaus were committed to the practical idea that, above all, designs must function. For example, Morris exhorted his followers to “have nothing in your houses that you do not know to be useful or believe to be beautiful”Footnote ²⁹ (See Figure 5)— a sentiment since summarized in the maxim “form follows function,” which is widely associated with the Bauhaus.Footnote ³⁰

Figure 5.

William Morris’ 1880 exhortation for useful, beautiful design.

Over time it became clear that this socially-attuned quest for user-centered functionality ought to begin further upstream, with design theory and pedagogy. So, at the Ulm school of design, Bauhaus graduate Max Bill sought “to make the design process more readily accessible and easy to understand,” and thereby “to facilitate cross-disciplinary work, for example with anthropology and psychology.”Footnote ³¹

Thereafter, as design was evermore associated with consumerism, designers across the world have pushed back with regular attempts to highlight its ever-present political dimensions. Perhaps most famously, in 1964, UK-based designer Ken Garland launched First Things First, a rather Arts and Craft-y/Bauhaus-y “manifesto,” calling on designers to take more responsibility for their practice. It was restated in broader terms in 2000 and 2014, and now calls to address “environmental, social and cultural crises.”^{Footnote 32}

In recent years, design has come to be applied—across a wide range of private, public, and civil society contexts—to create or enhance not only “physical products” but also “services, strategies and policies.”Footnote ³³ This movement towards what is often referred to by the—misleadingly partial—moniker of “design thinking”^{Footnote 34} has been especially pronounced in countries such as the UK and Germany that are home to well-developed design sectors. For example, globally, Germany and the UK ranked 4th and 5th respectively for their per capita design-related exports in 2015. While the UK “has the largest design sector” in Europe and its government was “one of the first to recognise the power of design” in the private and public policy sectors,Footnote ³⁵ the Policy Lab of the German Federal Ministry of Labour and Social Affairs uses “design thinking labs” to promote “cooperative thinking.”Footnote ³⁶ Anglo-German influence over design thinking discourse is to be found in an ever-growing collection of frameworksFootnote ³⁷—variously described as systems, toolkits, guides, and so on. For example, the Design Council—which is an independent charity and adviser to the UK Government on design—produced in 2004 a globally influential Double Diamond, visualizing four phases in design processes: Discover, define, develop, and deliver.Footnote ³⁸ Likewise, a largely German team of independent designers was behind the globally influential This is Service Design Thinking project, which centers on three designerly tools: Personas, maps, and prototypes.Footnote ³⁹

Proponents of “design thinking” see it as “a cognitive style” that can serve as a “resource for organizations.”Footnote ⁴⁰ However, as the pioneers of the Arts and Crafts movement and the Bauhaus always already knew, design is much more than a way of thinking. It is a sociomaterial practice—that is, a “routinized . . . behavior” including bodily and mental activities, “‘things’ and their use,” “background knowledge,” know-how, emotion, and motivation. Seen as a practice, “design thinking” comprises not merely the thoughts and actions of individuals, but rather “dynamic configurations of minds, bodies, objects, discourses, knowledge, structures/processes and agency.”Footnote ⁴¹ So it makes more sense to think in terms of sociomaterial “designerly ways.”Footnote ⁴²

Since at least 2001, there has been an increasingly concerted and global effort to apply design—more often “design thinking” than “designerly ways”—in the legal sphere.Footnote ⁴³ Initially, the focus was on visualizing legal instruments such as contracts,Footnote ⁴⁴ while recent efforts have addressed more strategic and systemic concerns.Footnote ⁴⁵ As I have argued elsewhere, the rise of what we now call “legal design”Footnote ⁴⁶ can be both explained and justified by the existence of important “points of contact” between “lawyerly concerns” and “designerly ways.” On the one hand, drawing on Roger Cotterrell, I argue that lawyers need to communicate; they need to balance structure/unity and freedom/diversity; and they need to be at once practical, critical, and imaginative. On the other hand, drawing on social designer Ezio Manzini, I argue that designerly ways—especially the emphasis on communication, experimentation, and making things visible and tangible—can improve communication and generate new spaces of “structured freedom,” in which lawyers can be simultaneously practical, critical, and imaginative.Footnote ⁴⁷ Given these synergies, I have argued that attention ought also to be paid to the potential of design to enhance legal, especially socio-legal, research.

I. Socio-Legal Model-Making

Multiple sub-fields, such as transition design and social innovation design, have seen designers collaborating with communities through design for more or less radical social change.^{Footnote 49} For example, social innovation designers provoke and facilitate us—“diffuse designers”—to work collaboratively for social change by approaching our own field of expertise or life in “design mode.”^{Footnote 50} Here, the intended users of the social design output—which may be, for example, an artifact, environment, service, or event—become “coresearchers and co-designers exploring and defining the issue, and generating and prototyping ideas.”^{Footnote 51}

Between 2016–2017, I drew on these practices to run a series of experiments in the UK that eventually included around 100 researchers and focused on how we might make socio-legal ideas “visible and tangible,” and how that might affect the social dimensions of socio-legal research. Participant researchers engaged in individual and collaborative model-making in relation to their ongoing projects. The primary outcome of those experiments was an openaccess guide introducing three forms of socio-legal model-making (See infra Figure 7): ‘Modular” model-making, in which systems such as LEGO are used primarily for the practical purpose of explaining; “found” model-making, in which stumbled-upon or curated items are used primarily for the critical purpose of generating new perspectives; and “bespoke” modelmaking, in which artifacts are made—for example—from clay, primarily for the imaginative purpose of speculating about new possibilities.Footnote ⁵²

Figure 7.

A guide to socio-legal model-making, designed to be downloaded and folded into a booklet.

The most potentially significant of these instances of socio-legal modelmaking occurred during the compulsory postgraduate Research Methods in Law module at Kent Law School, which became distinctly more social and more communal as a result. The module runs for autumn and spring terms. A model-making session is held towards the end of the first term. The session is based around an A3 landscape printed worksheet on which participants from all over the world are asked to use a LEGO set to complete three builds relating to their research projectFootnote ⁵³: First, they build a representation of their project, focusing on key concepts, actors, and relationships; second, they add in a representation of themselves in relation to the representation of the project; third, they build a representation of what they hope their project will be in the future. More experienced student researchers attend the session to act as mentors. Participants are encouraged to video or photograph the process throughout to remind themselves of how their build progressed; to explain their model to other participants, especially mentors; to ask each other questions about the models of others, and to offer critical feedback. Feedback reveals that model-making not only helps participants to better understand their research but also reminds them of the need to “discuss our projects more, to learn more from each other.” They provoked and facilitated to form trusting relationships with each other, and to engage in depth with each other’s projects; and these relationships extend beyond their cohort. A sociomaterial community of practice is formed (Figure 8).

Figure 8.

Postgraduate research students modelling their projects at Kent Law School.

It is particularly gratifying—and relevant to the present context—that students, such as Steve Crawford, have transferred socio-legal design skills learned at Kent Law School to other postgraduate and faculty in the UK and elsewhere in Europe,Footnote ⁵⁴ including to postgraduate researchers Lisa Hahn and Siddharth de Souza, who have in turn introduced it to the postgraduate research community at Humboldt University in Berlin via their vibrant socio-legal Lab, on which more below.

II. Making Anglo-German socio-legal Research Community?

The question that arises then is whether designerly ways might be especially well-suited to facilitating Anglo-German cooperation around socio-legal research. Visual summaries of the kind that I live-tweeted during the workshopFootnote ⁵⁵ (See infra Figures 1, 6) are one simple example. But what if, for example, by collaboratively making our ideas visible and tangible—in material models or even virtually—we might generate a sense of community among UK and German socio-legal researchers?

For a transnational precedent, we can look to the inaugural conference of “The IEL Collective”—a collaboration of academics and practitioners from across the world who aim to work inclusively to “stimulate conversations about plurality, representation and criticality”—in the field of International Economic Law.Footnote ⁵⁶ Like any possible future effort at promoting Anglo-German socio-legal community, the Collective can be framed as a “prefigurative” endeavor, in the sense that its participants seek to “perform present-day life in the terms that are wished-for,” both in order “to experience a better” present, and “to advance” future change”.Footnote ⁵⁷ Returning to the normative agenda outlined above, we can see that for the IEL Collective collaboratively to protect and promote the “wellbeing” of international economic law as a “practical idea” requires unified-yet-diverse thinking. It is only by bringing diverse conceptual frames, empirical examples, and normative agendas into the same space that we can really respect, understand, and use them in practical, critical, and imaginative ways. Collaborative mindsets, tools, and processes are not part of traditional legal scholarship and practice. Might they be introduced though model-making? This was the question that motivated me to propose the co-production of an IEL PopUp Collection as part of the IEL Collective inaugural conference held at Warwick Law School in November 2019.Footnote ⁵⁸

The Pop-Up Collection was designed to make unity from and for diversity, visibly and tangibly, and in prefigurative spirit. Delegates from across the world were invited to bring with them to the conference an artifact (object or image) that they felt was relevant to their approach to, or understanding of, International Economic Law, that was either found or made, and that would fit on an A5 page. Most delegates had never met, and were unlikely to have engaged in such an activity in the past, but these barriers to engagement were offset by the context—that is, the warm, inclusive, and non-hierarchical approach of the people at the heart of the Collective; and via specific social media prompts (Figure 9). During the conference, the artifacts were placed on designed A5 cards in the form of a grid. Arrows printed on the cards indicated possible points of contact or influence between the artifacts, and the approaches to or understandings of IEL that delegates intended them to represent. For example, Figure 10 shows delegates handling and discussing an artifact, made by Gamze Erdem Turkelli, to represent International Economic Law as a black box. On opening, we find plain notes representing the international economic activities—trade, investment, and aid—and elaborate bejeweled notes representing the promised benefits of engaging in such activities—for example, prosperity. Eventually, we realize that the box contains another hidden layer full of decentered concerns, such as climate change, colonialism, and gender. The Collection grew, shrank, grew again, and moved to a new venue over the course of the two days—a quiet, shifting presence. The impact of the Collection, and of the event, was extended through video tweets of such discussions.Footnote ⁵⁹ This experiment was successful in generating a “structured-yet-free” prefigurative space for practical, critical, and imaginative thinking—both individual and collective. That space was necessarily limited by the usual constraints of time and attention, all the more so in the context of the heady and transformative atmosphere of the wider IEL Collective conference. But it is there to be reactivated at future events, and deepened via an online collection of commentaries.Footnote ⁶⁰

Figure 9.

IEL Pop-Up Collection display cards as social media prompt.

Figure 10.

Delegates interacting with models at the IEL Collective inaugural conference in Warwick.

What evidence is there that it might be possible and productive to conduct an Anglo-German socio-legal Studies variant of this experiment? One reason for hope is the Socio-Legal Lab at Humboldt, which seeks:

It can be seen as designerly, in the sense that it promotes experimentation—both with different methods and with “different ways of communicating research,” including visualization (See Figure 11)—to determine “what works best in conversation and cooperation with others.” Although it is explicitly disruptive in orientation, it has been supported by institutions—such as the Law and Society Institute Berlin and the Berliner Arbeitskreis Rechtswirklichkeit (Berlin Working Group on socio-legal Studies, BAR)—and attracted participants from across Germany.Footnote ⁶² So it is safe to predict that at least some of its innovations will be absorbed into the German mainstream.

Figure 11.

Brainstorming the interrelations between law and society.

Lest we forget, the UK and Germany share darker histories too, not least a propensity for empire-building. Much remains to be done in both jurisdictions to face the past, present, and future effects of those histories. For example, Philipp Dann has observed a “contemporary amnesia,” both regarding the pursuit by the German state of empire outside Europe (18751919) and within Europe (19391945), and regarding East and West German scholarly critiques of empire-building by the “other side” during the Cold War.Footnote ⁶³ This shared imperial history is relevant here because mainstream visions of design are—like law—infused with a particular social and political history. Design began to emerge as “an aspect of every day” during the Industrial Revolution because mechanization focused attention on making, and because European societies became “pervaded by expert knowledge and discourses.” Over time, Eurocentric conceptions of design were exported, not least via empire, as part and parcel of the “universalizing ontology of dominant forms of modernity.” So, argues Arturo Escobar, if design is to play a role in meaningful social change—especially in non-European and postcolonial contexts—it must first “be creatively reappropriated.”Footnote ⁶⁴ Any proposal to use designerly ways to promote Anglo-German socio-legal community must be open—proactively inclusive of all, especially those stakeholders whose perceptions, expectations, and experiences might otherwise be ignored.