“Every day 75,000 people die of starvation despite the fact that we have plenty of food for everyone. Our distribution system, our nations, all the different kind of separateness blocks the whole thing. … Simply because we’re badly organized, we are not taking care of it.” – Buckminster Fuller
“No problem can be solved from the same level of consciousness that created it.” -Albert Einstein
What is a System?
If we’re going to change the legal system or our larger systems, it is helpful to know something about systems theory and systems thinking.
Kim’s shorthand description of systems thinking is now this: everything is connected to everything else. We live in an interconnected, interdependent universe.
A systems thinking approach sees how things are connected and influence each other. For example, in the human body, we have many nested systems: respiratory, circulatory, digestive, etc. Each can be studied separately, but they are interrelated and affect each other.
Wikipedia uses a few more words to say it:
“Systems thinking is the process of understanding how things, regarded as systems, influence one another within a whole. In nature, systems thinking examples include ecosystems in which various elements such as air, water, movement, plants, and animals work together to survive or perish. In organizations, systems consist of people, structures, and processes that work together to make an organization “healthy” or “unhealthy”.”
There are several stories that help to ground our ideas about Systems Thinking. For example:
In her TED Talk, [California’s first surgeon general, Nadine] Burke Harris …. invoked one of the milestones in public health history—John Snow’s 1854 discovery that a vicious outbreak of cholera in London was caused by contaminated well water drawn by a street pump. After Snow presented his findings to authorities—an early tour de force in epidemiology—the pump handle was removed and the outbreak halted. As Burke Harris bluntly told the audience: “One of the things they teach you in public health school is that if you’re a doctor and you see 100 kids that all drink from the same well, and 98 of them develop diarrhea, you can go ahead and write that prescription for dose after dose after dose of antibiotics—or you can walk over and say, ‘What the hell is in that well?’” https://www.hsph.harvard.edu/magazine/magazine_article/launching-a-revolution/
Another often shared mythical story talks about a village next to a river. One day, a baby washes up on the bank of the river. The villagers rush to rescue the baby only to find that another baby washes up a few minutes later. Eventually, hundreds of babies are washing up on the bank, each rescued and helped by the villagers. Finally, someone says, “Let’s go up river and see where the babies are coming from!” That is the shift to systems thinking.
In the legal systems, lawyers valiantly defend clients accused of crimes that grew from systemic problems. The government builds more prisons. The Bar Associations create commissions to study lawyer well-being and make recommendations for self-care. We wear ourselves out with efforts that are akin to pulling babies out of the water, rather than changing the system that creates the conditions that have babies washing up on river banks. It isn’t our lack of commitment or compassion that keeps us down the river. The work we do makes a difference for the ones we serve, but it doesn’t stop the stream of cases that seem to never end.
From Systems Thinking to Systems Change
“If a factory is torn down but the rationality which produced it is left standing, then that rationality will simply produce another factory. If a revolution destroys a government, but the systemic patterns of thought that produced that government are left intact, then those patterns will repeat themselves. …There is so much talk about the system, and so little understanding.” –Robert Pirsig, Zen and the Art of Motorcycle Maintenance
So how do we make the changes that need to be made, to stop the flow of cases and create the society we want to create?
Because everything is connected, sometimes small changes can make a difference. There is a video series that illustrates this concept. See, for example: The video called How Wolves Change Rivers. https://www.youtube.com/watch?v=ysa5OBhXz-Q&t=1s
The video tells the story of the reintroduction of wolves into Yellowstone National Park. The wolves changed the behaviors of the other animals, including grazing habits, then erosion was reduced, and one thing led to another until they even changed the course of the river. Similar videos show how whales impact climate, how beavers impact the land, etc.
We don’t always know what the acupuncture points are. Sometimes we can see them after they happen. Many years ago, at a conference, I heard a story of a neighborhood that had been trying to create more community. Social scientists made recommendations. Community members held meetings. They invited people to come to street parties. Nothing seemed to work. Then someone who wasn’t working on the project decided to open a dog park. Almost overnight, people started interacting more. They became known as the cute pug’s mom, the German Shepherd’s dad. They chatted on the benches of the dog park. A community of neighbors emerged.
That’s not to say that research doesn’t matter. In the work of Procedural Justice, some research experiments have focused on small changes: e.g. calling litigants by their names, not just case numbers. Such small acts recognize the dignity of the person and improve the experience for all the stakeholders in the process.
Creating the New System That Replaces the Dominant One
What if we want to take a larger, systemic view? One of my most powerful lessons came from a video by the Berkana Institute, found on Vimeo: https://vimeo.com/17907928, Two Loops: How Systems Change. The video is actually pretty poor quality but the ideas have helped to guide my career. The Berkana video tells the story of how a new system emerges. As the old system dies, pioneers leave the old system and start experimenting with ideas that are not part of that old system, that more accurately reflect the current conditions.
Systems theory tells us that systems are cyclical. They are born and they die. Societies rise and fall. Ideas ebb and flow. Scholars have studied historical patterns and we’re in one of those times and their measures make a pretty compelling case that we are in the systems dying phase of a lot of our western cultural and governmental systems. Those old dominant systems are beginning to be replaced – not reformed, but actually replaced – with new systems based on a different set of values and knowledge.
The old system emerged at a time of different values and very different priorities. Our current system was trying to fix the problem of resolving disputes by jousting, dueling, and wars between fiefdoms. It was an improvement over what came before but it wasn’t designed for the complexity of current technology or life.
Emergence of the New System
For some 25 years, Kim has studied the emerging legal models, in particular the integrative law movement. Approaches like Collaborative Practice (in divorce and civil matters), some forms of Mediation, Restorative Justice, Problem-Solving Courts, Holistic Law, Values-Based Contracts, and many more are examples of practice areas that incorporate a broader systems design perspective and offer role models for what’s possible.
Legal design is human-centered rather than centered on the old legal system. It is about effective communication, empathy, and creativity. Legal designers experiment to see what works, often creating prototypes of projects that might work and experimenting with them in action. They can design from a policy perspective or from a more local, acupuncture point perspective.
“There is growing attention for legal design in court processes, self-help information etc. . The focus is on accessibility and user experience. See for example these guidelines https://iaals.du.edu/publications/guidelines-creating-effective-self-help-information. “ -Susanne van der Meer, legal information designer & self-help coordinator at rural Colorado court.
Everyone is a Designer of Systems: a mindset shift rather than process adoption
One of the things about a systems design perspective is that it recognizes that everyone can play a part in systems design – because we are all playing a part in keeping the old system in place.
Kim offers training in systems change and design, including actions and roles that individuals and organizations can take to effect sustainable and meaningful change.