Beyond Best Practices: How to Use Design Thinking in Rule of Law Promotion

13. März 2019   ·   Siddharth Peter de Souza

Law in action can be messy. Therefore, formalistic approaches to rule of law promotion that ignore the context on the ground are often destined to fail. Design thinking is a creative method that facilitates an understanding of and empathizing with specific needs of those affected. It prevents mere transplantation and instead promotes solutions developed in collaboration between experts and locals.

So far, many approaches to rule of law promotion have focused on establishing formal institutions, such as creating new courts, drafting legislations and training judges. These approaches are based on the assumption that by creating frameworks and institutions the rule of law will emerge automatically. However, they neglect the messiness of law in action; the ways in which people, politics and power impact the operationalization of projects on the ground.

As a result, many projects with such a formalistic outlook have failed – costing billions of dollars over the years. Top-down and state-centered approaches to justice reform often do not succeed because they transplant legal ideas without putting enough emphasis on the contextual realities in which they are being implemented or in many cases imposed.

There is a new wave of experimentalism in rule of law promotion that could induce development actors to move away from top-down approaches to more grounded solutions. It posits that identifying and producing local solutions is often more productive than the expert-driven rule of law orthodoxy of advocating best practices. This article shows how design thinking methods can offer new approaches to promoting the rule of law.

Solutions by those affected for those affected

Design thinking is an analytical method, which facilitates understanding, empathizing, and then building solution prototypes for user-identified needs and challenges. Translating this to rule of law promotion, it enables a collaborative process to identify and design solutions that not only includes expert views but also perspectives of those affected, i.e. the “justice users”. In addition, it offers solutions that are not merely transplanted on account of their performance in different jurisdictions but are prototyped, tested in the field and then iterated depending on the user’s feedback.

The example of development actors engaging with Non-State Justice Systems (NSJS) highlights the importance of user-oriented approaches. NSJS are forums based on normative, procedural and substantive values that are distinct from those of the state. These systems can emerge from religion, custom, tradition and community practices, e.g. in form of Sharia or village courts. Many of these forums enjoy high legitimacy and authority because they use language, practices, and symbols that are deeply embedded in the context in which they exist.

In rule of law promotion, experts prefer to concentrate on formal courts aligned with universal human rights standards. A key challenge, however, is to understand why NSJS continuously evoke trust and confidence among its users. What are the factors that enhance its legitimacy and use? Do people perceive going to NSJS as a matter of choice or compulsion, and – if the latter were the case – would it help to create alternatives or improve the NSJS? Arriving at solutions for justice reform cannot work unless it responds to user needs rather than to the transplanted priorities of development institutions.

Better understanding the beneficiaries

How can the German government adopt a user-centered approach to promoting the rule of law and in this case engage with NSJS with the help of design thinking? The first step is to immerse into the users’ context to understand their experiences with NSJS. Responding to the context and empathizing with the users helps to identify what may work and what may not in these systems. This is in stark contrast to a more normative approach, which suggests that we already know what ought to work. From a normative perspective, a system that does not have standardized ‘best practice’ qualities is somehow deficient.

Design thinking techniques such as empathy maps enable us to better understand the context. Firstly, an empathy map breaks down the process of understanding needs by analyzing the way users see and describe their experiences. Secondly, the map facilitates reflection on what users must be thinking and what matters to them when they engage with NSJS. Thirdly, it helps to understand how the users feel about the NSJS. Fourthly, it indicates how users act and how they use these forums. For example: Are they able to participate freely or under coercion? Do they embrace them or are they cautious?

Beyond Best Practices: How to Use Design Thinking in Rule of Law Promotion

Diagram 1: An empathy map

Being open to a particular context and examining what users say, think, do and feel, helps to ascertain why people decide to use particular forums; why they like or dislike them and what they need to resolve a dispute.

Developing a user-centered point of view

In a second step, development actors should develop or frame a user-oriented view of these justice systems and determine their flaws and advantages. For example: Do women and men have similar access to these forums? Which forums (NSJS or formal courts) are more user friendly in terms of language, time, and values?

It is important to identify the users’ needs and what they are based on to develop an understanding of how to best engage with NSJS from their point of view. An example of a user-centered point of view is as follows: A man who works as a daily wage laborer needs to have access to a speedy and fair dispute resolution forum because the opportunity costs for him to attend the dispute proceedings are very high, as he will have to miss work and thereby lose out on his pay.

Beyond Best Practices: How to Use Design Thinking in Rule of Law Promotion

Diagram 2: A user-centered point of view

Once the point of view has been identified, the next step is to ideate, i.e. generate ideas for different solutions. To stimulate this process, it is helpful to ask “How Might We”-questions, e.g. “How might we ensure timely resolutions of cases?” Or “How might we reduce costs of resolving a dispute?” These questions could lead to ideas and options that balance important aspects of state and non-state justice systems and that emerge in response to actual user needs instead of perceived ones.

Iterating and modifying with the help of user inputs

The final step is to build a prototype for the idea and then to iterate it to ensure its efficacy. Even though the solutions have been built on user needs, it may not adequately meet them. To ensure that they are suited for the context in which they are employed, it is necessary to collaboratively test, refine and finalize them.

One solution for the day laborer’s need of a speedy and fair dispute resolution could be a mobile court, which travels from district to district to dispense justice. While this idea is certainly uncommon, it above all has to be effective, e.g. it enjoys legitimacy and thus respect within the community. Through iteration based on user input, the mobile courts could be steadily adapted to local conditions.

Meeting the needs of beneficiaries, not of donors

While this process is undoubtedly expensive and time-consuming, it is also one that helps to articulate the unmet needs of users by focusing on their contexts, aspirations and desires. By adopting this four-step process – immersion, framing, ideating, iteration, – the end product of such a justice sector reform will be protected from the transplantation of outsider solutions.

Beyond Best Practices: How to Use Design Thinking in Rule of Law Promotion

Diagram 3: The four steps of design thinking

The German government should consider including collaborative methodologies in its rule of law promotion, especially in order to create room for more grounded solutions. It should experiment with these methods even if they may fail. A focus on what works rather than what ought to work as is the case in traditional rule of law promotion could save money, time and human resources in the long-run. The ambition of rule of law promotion must be to arrive at locally owned and context-specific solutions that above all do meet the needs of their users, and not the donor’s (political) ambitions.

English Rechtsstaatsförderung

Siddharth Peter de Souza

Siddharth Peter de Souza is a PhD researcher in Law at the Humboldt University of Berlin and has studied design thinking at the Hasso Plattner Institute School of Design Thinking in Potsdam. He is the founder of Justice Adda, a legal design social venture.