In order for something like gamification and applied crowdsourcing to work in law, the designers have to understand the relationship between rules and standards. You can’t just walk up to someone and expect them to obey a rule because it works more efficiently. It has to fit within their social standards and their beliefs about how the world should work. Addressing this problem is a lot trickier than the initial task of designing more efficient laws.
Improving the design of a law requires understanding the difference between a game not working and a law not working. In a game rules aren’t really broken in the same manner because doing so disrupts play and the game itself. In a legal system people are allowed to break the rules because there are so many players that no rule system could ever accommodate all of them. More players means more unintended consequences. When those situations rise up, strict rule enforcement might cause something unfair or cruel to happen. There’s a strong sense of morality or virtue that enters the equation because the consequences are permanent. In the legal system this is called a ‘hard case’.
The term was coined by a legal philosopher named Ronald Dworkin in an essay by the same name and in it he discusses a potential hard case in a chess tournament. Let’s say you have a rule which says, “If you taunt another opponent, you immediately forfeit the game.” Seems innocent enough, right? Two players sit down and one smiles at the other. For cultural reasons, the opposing player is insulted by smiling and flips out. They demand that their opponent be forced to forfeit for taunting them. How do you call that? If the player is genuinely offended, then technically the other player broke the rule. Is it a fair outcome to let them win in this manner? What if they’re just abusing the rule?
One of the things Dworkin points out about resolving the chess tournament issue is that it’s comparatively easy to resolve. Everyone there has agreed to play chess. They like chess. People may bring different social backgrounds to the game but the two players in the above example are still there just to play chess. Obeying the rules of the game is included in that relationship. So all you really need is a Judge to tell them what the rules mean and they'll go back to playing. That’s one of the inspiring things about play and one of the unpleasant things about law. In the real world there are serious issues that people have very strong opinions about how to handle. When designing a legal system one must recognize that part of the challenge is getting people to agree to the rules at all.
There’s a couple of basic reasons a person might follow the rules of a society. A key distinction is one Judge H.L.A. Hart makes about the difference between a rule and an order. A law you absolutely have to obey is an order. It would be something along the lines of me pointing a gun at you and asking for your wallet. Not giving me the wallet will result in consequences involving the gun. In that situation your feelings about that exchange aren’t relevant. The way they do become important is when automatic enforcement stops being present. You’re not going to give me your wallet if I’m not standing there with the gun. Hart explains that there has to be a certain element of acceptance by a society for a law to be obeyed otherwise you have to enforce it.
Duncan Kennedy makes the point that the acceptance of a rule is a sign of its conformity with social standards. He explains, “Standards refer directly to the substantive values or purposes of the community… by contrast, formally realizable rules involve the finding of facts. Factfinding poses objective questions susceptible to rational discussion.” Put another way, rules are concrete and clear, standards are amorphous and ever-changing. The clarity of rules means it’s possible for something like a legislature to create them, the larger and nebulous nature of a standard means it has to come from the community while remaining undefined.
The dynamic between rules and standards is a necessary element of a healthy legal system. Rules, by their very nature, are imprecise. The broader you make a rule so it can apply to more people, the more over and under-inclusion that occurs. Standards are much more effective at covering broad types of behavior and they help narrow overly-broad rules. The social standard that hurting people is bad is more effective than having a rule listing off the millions of ways you can hurt someone. Standards are not very good at resolving specific disputes. A standard like free speech doesn’t really tell me how loud your car stereo can play before you become a nuisance. That’s what you need laws for: specifics.
Above is a diagram of what a utopian society would look like. The red circle represents the social standards. The purple square is the legal system. The laws are all well within what the society is willing to permit. It’s a depiction of a legal system as a possibility space, a style based on the magic circle principle of game design. The space inside the square represents all possible conduct that is legally permissible and socially acceptable. The space between the square and the circle is the gap between law and social standards. Conduct that occurs in that space represents something that is technically illegal but society is willing to accept. That’s where your hard cases are occurring. Anything outside the circle is offensive to this system and also illegal. Notice that the rules and social standards don’t perfectly conform. You can’t ever create a perfect legal system that will be able to totally avoid hard cases. People are too bizarre and dynamic for that to be possible.
Above is a graph of a more realistic depiction of a society. Each circle represents a different set of standards for a group of people. For some of those standards there is overlap and that represents where the groups agree on social values. In other parts they do not. The laws depicted reflect this reality by showing laws that go outside one group’s standards but are supported by another group’s. As noted above, laws outside a group’s social standards have to be enforced. They won’t do it voluntarily.
The potential for seemingly unfair legal resolutions is high in this situation and may lead one to rightfully question why anyone would accept laws outside their standards. Ronald Dworkin explains that people put up with hard cases because when people consent (assuming that they are consenting) to be in a legal system, they commit not just to a set of rules but to an enterprise that may be said to have a character of its own. Each of those social standards is engaging with the other and accepting the legal system for the larger purpose of a greater community.
It’s here that some of Jane McGonigal’s ideas are applicable. One of the points she stresses is that games can be used to build stronger communities. Initially this is just addressing the entire problem of people with differing social standards not communicating, but it also enables a way for them to participate in the governing process itself. The game designers going about fixing a legal system must be given specific goals for those designs to induce. Those goals must still be decided in a democratic manner. This process can be influenced with community games that specifically address what those goals should be.
A great example of this is a recent budgeting experiment in San Jose. A company called Innovation Games created a game called Buy a Feature. Community leaders from various backgrounds were paired into teams of eight and given a finite amount of virtual money. They could buy certain budget features but never all of them. Each group created their own budget which reflected a model for how the actual city should dispose of its funds. Writer Jeff Lopez explains, “The event seems deceptively simple but by bringing collaboration, feedback, and play into the equation, participants were able to build consensus in a very positive way. In a political world dominated by yelling between the Right and the Left, this type of collaboration provides a breath of fresh air…The quantitative results from the event can be found on the city’s website and the mayor’s proposed budget was released earlier this month. The results are in, and the official document explicitly cites the budget game: residents were reluctant to cut police and fire resources but were willing to look at efficiencies. The mayor’s office has decided to not cut safety patrols, and instead turned to increasing efficiency in pensions and benefits, as well as reduce funding of nonessential efforts that fell to the bottom of the game results, namely city health initiatives and public recreation events.”
In his book Newsgames, Ian Bogost (co-written with Simon Ferrari and Bobby Schweizer) explains, “Good community games produce meaningful discourse through trial and error rather than through opinion. Such discourse does not amount to the interpretive work that one might perform on a film, book, or play…instead, the discourse of community games involves the movement toward the solution to some specific problem.”
The goal of a game designed legal system is not to create a perfect legal system. It’s to create a legal system everyone can agree on.
You can find Part 3 here.
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