Peter Tiersma’s history book Parchment, Paper, Pixels is about the evolution of the legal profession. He frames this in the narrative of technological innovations for communicating rules via basic paper, the printing press and then computers. For the sake of brevity he focuses on areas of law that intrinsically revolve around paper like wills or contracts, but he broadens the scope by the end when he focuses on laws themselves. In the process he explains the intricacies of why a rule on parchment, printed paper or on a computer works differently.
With both written and oral rules the party is mainly focused on discovering the speaker’s meaning, what changes is that someone speaking orally doesn’t have to create nearly as complex of a rule. The speaker can rely on body language, tone and other subtle forms of communication to get across their point. Listeners, in turn, rarely focus on the precise statements of a person and instead focus on the general meaning. Clarification is also not really an issue because you can just ask the person what they meant by something, which allows the speaker to adapt that meaning to something appropriate to the context. For example, if the village elder declares that there will be weeaboo in the ritual hut, they can explain what that means should someone be confused.
You don’t have any of that with a written rule. The rule has to exist in a vacuum because someone with no access to the speaker is going to read it. They’re going to focus on what individual words mean and be more capable of recounting specific statements because they’ve got it right in front of them. Generally people remember the specifics of something that was written down way better than they do something said to them. As a consequence a written legal document has to devote a lot more time to explaining what something means so people don’t figure out some goofy way it might help them. It’s not to be obtuse, it’s to make there is only ONE way of interpreting a document. This is Tiersma’s explanation for why lawyers and judges began to begin writing in such a convoluted manner, going back to another history book he wrote called Legalese.
A big chunk of the book then focuses on the law governing contracts and wills. Contracts are a legal concept that existed long before writing so the paper contract is not always totally binding. This is for the practical reason that, as with an oral rule system, you can just ask the person what they meant in the contract. Conversely a will is slightly more tricky because the person you need to ask for clarification is usually dead. Thus the rules governing wills and paper came very early in history and are very strict. Today you need two witnesses to sign off on any changes to the will or even have it be binding in the first place. This is a big problem in law because a lot of people still think they can print something off at Kinko’s and leave it at that. Courts are required by law to chuck that will and distribute your estate based on a formula when that happens. Whether or not the will is legit, the issue is that if you allow those kinds of wills in then people will be able to sneak in fake ones.
Tiersma uses games to make the distinction between a written record of the rules and rules that people actually obey. The example is a kickball game where everyone orally consents to the rules. That’s generally going to represent what the group thinks and has agreed upon. If someone were to come along, observe the game and write down the rules they would not actually be the rules because it’s still an oral system. That is, the players don’t recognize the authority of the text. Once enough players get together that they feel the need to start writing crap down you then shift into where the paper rules govern. The groups all agree to follow what the paper says which then causes all those mechanical shifts as noted above.
Tiersma reinforces this point by comparing this process to our relationship with Christianity. A person interpreting the Bible who thinks it was beamed straight from God onto a book is going to limit their interpretation to what the book specifically has written down. A person who thinks it was created by a group of Romans a couple of centuries ago and has been heavily edited by various groups since then will take a broader approach. The person who believes the Bible is the word of God does not believe that the book is a representation of the law, they believe that it IS the law.
Appreciating why any of this matters in the big picture comes from recognizing that our culture, despite a brief flash of letter writing for a few centuries, is mostly oral. It doesn’t matter that I’m writing something down, what matters is where the authority is coming from. With e-mail, TV, Skype and all the other trappings of the internet we’re back to the same principles of an oral rule system: you just ask the person for clarification and focus on what they meant instead of what they said. People don’t write things that have to be self-explanatory, they just write as if they were talking. This is why cherry-picking quotes from forum conversations has always seemed a tad tacky to me. Forums are generally oral systems and it's imposing a written text technique that results in everyone talking like a stick was shoved up their ass.
There’s a lot of history that comes into play here about how rules were published and communicated, but the ultimate gist of it is that the American legal system is oriented around a text-centric approach. The volume of cases and rules are so massive that lawyers are now forced to search for specific phrases or words without any regard for the actual case. Law briefs and rulings tend to have short quotes and snippets from other rulings to justify their arguments without any regard to the larger context because there’s so much information involved. The problem is that ONLY lawyers, judges or particularly obnoxious academics communicate in this manner, the rest of society still operates on an oral method of communication. Which leads to fun things like people telling me I’m being an ass or not understanding what I’m saying when I talk about law. But I’ll admit Tiersma helped me get a better awareness of when and how to bridge that gulf with people.
At this point the law is going to remain in its textual state for the near future because there isn’t really any other way to communicate the complex concepts necessary with a graphic or video. Tiersma concludes with that you can have a legal system without writing, you cannot have one without language. In a vain attempt at dragging this back into being relevant to games I imagine the same is true: you don’t really have to communicate a rule system in any one particular fashion. But there does need to be a method of communication going on.