Speculation in legal design? Ontological concerns and critical alternatives

Doherty, Michael (2024) Speculation in legal design? Ontological concerns and critical alternatives. In: The Socio-Politics of Legal Design and their Epistemic Consequences, 2024-07-04 - 2024-07-05, Oñati International Institute for the Sociology of Law.

Abstract

This chapter critically examines the role of speculative design within the field of legal design. While speculative critical design (SCD) is often framed as a progressive alternative to mainstream or ‘affirmative’ design, the chapter challenges the ontological dualism that underlies such a distinction. It argues that design should be understood as a spectrum rather than a binary opposition, allowing for criticality and innovation at multiple points. The chapter also questions the general effectiveness of speculation as a tool for achieving concrete legal and social change, given its detachment from immediate problems and its reliance on future-oriented narratives. As SCD draws on methodologies from science fiction, future studies, and conceptual design, it risks being overly abstract and disconnected from the lived realities of legal systems and users. Mainstream legal design, often dismissed as merely reformist, already integrates critical and imaginative elements while maintaining a pragmatic approach to problem-solving. It is argued that the most impactful applications of SCD remain closely tied to mainstream design methodologies. Ultimately, the paper advocates for a pluralistic approach to legal design that values speculative thinking as a complementary tool rather than a distinct or superior paradigm. This perspective ensures that legal design remains both imaginative and actionable, capable of addressing present legal challenges while envisioning future possibilities.