Gamification and Law - 3

The goal of this post is to discuss the potential changes in perception that come with a society who is accustomed to playing video games.

Game academic James Paul Gee called the growing understanding of video games in modern society the semiotic domain or “modalities used to communicate distinctive types of messages." The more people who play games, the more familiar they will become with their conventions, which will in turn allow for that means of communication to cover more topics in society. This is one of the most common selling points for gamification when explaining why it would be so effective with marketing. An entire generation of people who grew up with and continue to play games today is just beginning to hit their 30’s. One can assume that a growing semiotic domain implies that those people are at least playing several different games, more likely dozens. Each of those games is an independent system with similarities and differences. Learning to detect those features and differentiate them is one of the first steps in developing the critical skills needed to think about systems on a larger scale. This, in turn, is the key towards creating an informed population about how a legal system works.

The chief critical skill for systems is learning to think in terms of the whole rather than the individual. An excellent Youtube series by Dr. Russell Ackoff introduces the basic ideas but he begins by pointing out that most people in America are taught to analyze things individually. That is, the answer to how something works or why it came about can be found by examining what’s inside the system. You see this idea in liberal arts most often, such as looking at a painting and analyzing what it means through various critical lenses based on politics or method. Systems thinking is the idea that the explanations always lie outside the system, never inside. You look at the thing and try to understand its relationship to the rest of the whole.



Every system is contained in a larger system. An essential property of a system is that it cannot be divided into individual parts. Ackoff uses the example of a car and deciding the value of the vehicle based on how well the fuel regulator works. You don’t base the value on just that, you want to know how well all the parts work together as a whole to become a car. Analysis is incompatible with this approach because it’s inherently taking things apart. You break down each component and isolate their function. This often leads to bad decisions on how to improve or repair a system because it over-emphasizes a single function without gauging the effects on the whole. A system is never the sum of its parts, it is the product of its interactions.

This line of thinking is best developed by multiplayer games. In an MMO players learn about superior builds for their characters by studying how they handle combat with other characters. The conflicts are what allows a person to grasp how a system works. These occur much less often in single-player games because of the lack of competing interests.

Barbara Cosen explains that most past legal scholarship focuses on isolating legal mechanisms and explaining how they work. She compares this to someone performing an experiment in an isolated lab then presuming it will be applicable to the real world. The truth is that there are hundreds of other factors going on in a legal system that all influence the outcome of a conflict. It is never down to one component or exchange.



A great example of the dangers of using analysis on a system is an article on police foot patrols in The Atlantic. Crime statistics and victimization surveys measure individual losses, but they do not measure communal losses. The article explores the impact of foot patrols in Newark, NJ and explains that while it did not lower the actual number of crimes, it did increase the overall community satisfaction. The reason is that the foot patrols break up drunks, disorderly youths and identify strangers in the community. They theorize that these factors tend to act like a broken window in a house: it attracts more crime the same way a broken window attracts vandalism. People believe they can get away with it after seeing that someone else got away with a different crime. With the cops walking the neighborhoods people felt safer and happier despite the lack of change in other statistics.

The article explains that studies of police behavior ceased, by and large, to be accounts of the order-maintenance function and became, instead, efforts to propose and test ways whereby the police could solve more crimes, make more arrests, and gather better evidence. If these things could be done, social scientists assumed, citizens would be less fearful. The law defines my rights, punishes his behavior and is applied by that officer because of this harm. It’s a basic analytic approach and solution: we fix things for the individual and then everything will resolve itself. What the experiment in Newark, NJ discovered is that this approach often misses the mark when dealing with truly complex issues. Or as Ackoff explains we are improving the performance of the part while worsening the performance of the whole.

Why does playing games help with teaching systems thinking instead of analysis? Because the more systems a person engages with, the more familiar they are with the concept of form. While it’s easy to make grand statements about recognizing the forest for the trees, it’s conceptually harder to do this with insubstantial systems like laws or games. Ancient legal systems such as the Roman Empire’s, for example, have a noted tendency to only deal with the physical. This is my property, that is your property and here is what I can or cannot do in regards to this property. Insubstantial concepts like free speech, freedom, racism or other modern legal ideas are more difficult to grasp because they are so abstract. Most people understand what freedom is and they believe they have a right to it, but they also simultaneously recognize that there are limitations on that right if one wants to co-exist with others. I’m not free to go over to your house and make a sandwich, for example.



This problem when making laws for abstract forms like freedom or equality is that by its nature there is no specific thing I can say to identify it because it’s not a thing. It's a series of exchanges and interactions that culminate into that state. One of the best essays on legal formalism is by Ernest J. Weinrib entitled Legal Formalism: On the Immanent Rationality of Law. Weinrib argues that form is content and content is form because the ensemble of characteristics that we consider to be the form represents what the content really is and, equivalently, when what we consider to be the content adequately expresses the thing’s form. The thing is a single entity comprised of the set of characteristics that define it, and it has the unity of an articulated whole that is not reducible to – is therefore greater than – the sum of its parts. Or put more simply, not all tables are alike, but they all share similar properties that designates them each as a table.

Gamers don’t explain it like this and hopefully they don’t bore their friends by debating our inability to articulate inherently abstract limitations, but the basic principle is still there. The idea is explained by Wittgenstein when he was discussing the relationship between various games. What does a board-game have in common with a card-game or ball-game? Certain things are present like amusement but features like the cards or math drop away. The criss-crossing of conflicts and features creates a ‘family resemblance’ by which we categorize rule systems without limiting those categories to any one specific thing. This is why a legal form is considered a kind of pure abstraction: you defeat the purpose of it when you start limiting it by content considerations.

Gamers do this all the time. Portal 2 is an FPS even though it’s a puzzle game. Fallout 3 is an RPG even though it could conceivably be played as an FPS. They are accustomed to loose definitions of systems that are based on numerous factors compromising a whole. The various components of a system are observed and based on that the system is categorized. This method of thinking is often difficult to communicate with a person because they are so accustomed to emphasizing the individual. This approach has its place and advantages, but when dealing with something as large as gamifying society it requires a different approach. If gamification is correct about gamers, then there should be large number of people who are significantly more capable of thinking about legal systems entering the populace.



There’s not really any quantifiable way to measure whether or not the populace has an enhanced sixth sense for changes in the systems that govern their lives. Ideally they would be more capable of discussing issues from the big picture perspective rather than focusing on individual parties or agendas. The intangible nature of a legal form means that it does not have any specific moment of understanding, just acceptance. Some legal scholars resort to comparing this idea of legal forms to an artistic sensibility, others denounce the idea as nonsense used to defend bureaucratic injustice. I don’t expect anyone’s Xbox 360 will be resolving these questions. The development of a greater sense of legal forms will allow people to adopt systems thinking more clearly. This should allow people to understand that designing a better legal system with gamification at its core means recognizing that those designs go beyond their immediate consequences.

Legal scholars, gamers, pundits, activists, politicians, game critics, hack lawyers…basically everyone still analyzes problems instead of using a system approach. There are moments where this is appropriate but the growing reality is that what is good for the individual is not always good for the group. Growing environmental pressures with food, land and energy will require a more dynamic society willing to adapt while at the same time finding a way to still retain its overall character. The question of what to do with gamification may find its answer with helping to usher in this new understanding of law and society.

Link to Part 4.