A creative and human-focused method for legal pedagogy solves – allows us to focus on the material effects of policy and law while also learning how to be empathetic through engaging in legal practice.

Our participants sensed design thinking pedagogy as enabling alternative mindsets and developing empathic, creative, and innovative thinking skills. In this way, design thinking pedagogy can potentially address gaps in traditional legal education by supporting students to move beyond the constraints of rational thinking and legal reasoning and to avoid more litigious and adversarial approaches (Haapio et al., 2021). Design thinking also offers a valuable methodology for interdisciplinary creative work, by enabling multi-professional teams to establish common ground and perspectives (Lindberg et al., 2010, p. 35).

Legal education has largely operated outside of the affective domain, a ‘catch-all phrase’ for aspects of behaviour including: Self-concept, motivation, interests, attitudes, beliefs, values, self-esteem, morality, ego development, feelings, need achievement, locus of control, curiosity, creativity, independence, mental health, personal growth, group dynamics, mental imagery, and personality. (Martin & Briggs, 1986, p. 12)

With affect often seen as “irrational, and antithetical to core Western ideals of rationality”, legal education and curricula have traditionally remained in the domain of knowledge and reasoning (Maughan & Maharg, 2011, p. 1).

Spencer (2022) argues that traditional methods of teaching law ‘may be producing lawyers who are not equipped with the emotional intelligence required for modern legal practice’ and advocates for more progressive approaches that require ‘more contemplation, more active listening and less aggressive advocacy’ (p. 99). Design thinking pedagogy appears to enhance legal education by incorporating the affective domain in ways that draw on emotions to diversify and broaden law students’ thinking skills. It creates space in the curriculum for alternative and reflective thinking, active listening (especially when empathising), creativity, innovative problem solving, collaboration rather than competition, and a non-litigious, non-adversarial approach to complex legal problems.

With its focus on empathic, creative, and innovative thinking skills, design thinking pedagogy appears to harness emotions rather than suppress them. It provides real-world experiential learning where students focus on humans and emotions, while deferring their focus on the solution (Thanaraj et al., 2023, p. 151). This helps to position students as humane professionals, where an overlap between personal and professional value systems allows students’ “emotions [to] command attention and facilitate memory” as they “actively car[e] about what they are learning and its consequences” (Maughan & Maharg, 2011, pp. 223–228; Ferris & Huxley-Binns, 2011). Design thinking has the potential to facilitate students' focus on both the emotions of their future clients and their own emotions, fostering the development of emotional intelligence and resilience (Thanaraj et al., 2023). This includes enhancing their understanding of existing mindsets, cultivating diverse modes of thinking, and embracing a holistic perspective of themselves (Bleasdale & Humphreys, 2018).

5.2. Creative confidence

Our participants perceived design thinking pedagogy as developing creative confidence in a safe-to-fail environment. This potentially enhances law students’ thinking skills and fosters emotional intelligence and resilience. Creative confidence refers to the “natural ability to come up with new ideas and the courage to try them out” (Kelley & Kelley, 2012, p. 115). While this is something we are said to be born with, it can diminish over time due to socialisation, formal education, a tendency to become analytical, and fears of judgement, the “messy unknown”, the first step, or losing control (Kelley & Kelley, 2012, p. 115). Creative confidence can also be understood to mean “a development of trust in one's own creative skills” (Rauth et al., 2010, p. 6). In terms of learning, it is the repetition of design thinking that creates creative thinking which translates to creative acting, and vice versa, both of which lead to confidence and competence in creative behaviour, that “in sum build creative confidence” (Rauth et al., 2010, p. 6).

Our findings suggest that design thinking pedagogy may provide an environment that promotes creative confidence by encouraging play, making students feel ‘safe to break the rules’ and encouraging them to experiment. There is strong support for educational curricula to incorporate creative thinking and interdisciplinary creativity, with play and games recognised as tools that “enhance individual and collective creativity” by addressing the “cognitive, emotional and social dimensions of learning” (Moirano et al., 2020, p. 6). Critical elements of playing games for the purpose of creativity can include the role of warm-up activities, generating ‘good spirit’, and engaging all players, including those with different knowledge, backgrounds, and perspectives (Moirano et al., 2020, p. 6). For our participants, it was the ‘play’ and games that provided an opportunity to reconnect with their creative selves and break down discomfort and barriers. This reinforced the theory that educators need not necessarily teach students to be creative, but instead help them rediscover their creative confidence, overcome their fears, and develop their creativity through practice (Kelley & Kelley, 2012, pp. 115–116). This approach allowed our students to develop their creative mindsets and thinking, engage in creative acting and, in doing so, develop their creative confidence and competencies.

Design thinking pedagogy also appears to help students tackle their fear of failure. Our findings suggest that, with practice, students became increasingly comfortable with the ‘messy’ process of design thinking and with not knowing solutions at the outset. In a recent study, Allbon and Perry-Kessaris (2023) similarly found design thinking helped their students become: ‘more willing to give things a go rather than obsessively overthinking’; more ‘aware that answer[s] may lie … anywhere … not just … in textbooks and journal articles’; and more ‘free to experiment with different ideas and be a bit more open’. When our students became comfortable with the pedagogy — which is so different to traditional legal teaching — they were able to embrace the experience, develop their creative confidence, engage in innovative problem-solving, and recognise that “early failure can be crucial to success in innovation” (Kelley & Kelley, 2013, ch. 2). By developing a willingness to see failure as part of learning, students can build a ‘resilience toolkit’ containing the characteristics they need to ‘keep going’ through difficulties, discomfort, or failure and ‘not give up’ (Bleasdale & Humphreys, 2018, pp. 19–21).