The Practice of Law and the Intolerance of Certainty
Can uncertainty simultaneously be something to be regulated and feared, as well as a postive and creative resource?
Relationship to Ambiguity
In this 28-page academic paper, published by the University of New South Wales Law Journal, Stephen Tang and Tony Foley make a passionate case for the vital, human role that ambiguity and uncertainty play in field of law. They challenge the commonly held beliefs that lawyers should be trained to be intolerant of uncertainty and drive towards certainty. In a world full of ambiguity, having people who can be comfortable with the uncertainty at the core of legal proceedings helps make the practice of law more humane, creative, and gives it a heartbeat. The paper's abstract provides a great summary.
I read this article through the eyes of decidedly non-legal perspective. I found wisdom and inspiration in how the authors talked about the vital aspects of uncertainty.
First, they define uncertainty in an compelling, human-centered way. They start by defining ignorance as simply everything we do not know... it could be described as "non-knowledge" or "negative knowledge." It's not something to be ashamed of, but rather a humbling reminder of how much more we have to learn relative to the small island of knowledge we do possess. Uncertainty is then defined as the personal feeling or response we have when we internalize this ignorance. They write, "uncertainty is what ignorance looks like through our eyes." I find this to be a much more hopeful and optimistic way of looking at uncertainty, compared to the often popular notion of uncertainty needing to be controlled or reduced.
Second, they (and authors before them) connect uncertainty to agency, possibility, and change. They write "anything which is a departure from tradition, precedent, or the status quo is intrinsically uncertain." It "drives the quest for novel possibilities which may be outside original frame of reference." This is very much consistent with our point of view of the role of ambiguity in creative design work: it is the life source for discovering new opportunities and ideas.
Third, they discuss the positive relationship between stories and uncertainty. They acknowledge that sometimes lawyers are celebrated as master storytellers, and say that "narrative is a vehicle by which complexity and uncertainty can be held and expressed together in a way that is not frightening or overwhelming." I found this a powerful reminder of the ability of stories to help students sit more comfortably with ambiguity throughout various phases of a project.
Though a fairly short article, it's dense reading for the legal layperson. I could see highlighting certain sections for in-class discussion, and possibly assigning the whole article as required reading.
I also think there's a mapping activity that could be made out of their definitions of ignorance and uncertainty. I think working through that could shift students' perspectives on ambiguity and uncertainty.
Design Abilities Used
Laywers must learn from other people involved in a case, as well as from other professionals in the legal profession (including those that have come before them) to arrive at an interpretation and make decisions. This requires synthesizing information from many different sources, and then communicating their position in a clear, persuasive way.
This article was shared with me thanks to Sarah Stein Greenberg, who discussed it with Clinical Law Professor Anne Choike at a "Prototyping for Policy" workshop at the d.school. Thanks to them both for sharing it!
Design Abilities Used
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