Gamification and Law - 5

To borrow a popular criticism of gamification, a feedback system alone is not a game. It is, however, a potential application of game design principles to a system that employs both seriousness and play to produce tangible benefits. Going back to Greg Lastowka, he identifies three key differences between a legal system and a game:

1) Games are disassociated from life in a way that makes them less serious than ordinary life.
2) Play absorbs players intensely and utterly.
3) Games are not materially productive.

Gamification, if we were to condense it into a form, provides a means for 2) to exist in a system that otherwise does not necessarily have the other two elements. Huizinga’s example of this occurring was the Renaissance and I narrowed it down to something like the art patron model in the previous post. A person is given the freedom to totally absorb themselves in an otherwise productive task. This was possible because the patron environment creates an accelerated feedback system. The artist is paid before the work is completed so they have something to live on and to give them supplies. Nobody yet knows if the work will be any good nor is this payment indicative of that.

Donella H. Meadows, in her great book Thinking in Systems, explains that the information delivered by a feedback loop can only affect future behavior. It can’t deliver the information immediately and so can’t have an impact fast enough to correct behavior that is driving the current feedback. An example she uses would be letting the water out of your bath tub. The water isn’t all gone immediately, it takes time to flow out and you don’t notice until the water is gone. In the patron’s case above, you don’t know if the money is going to lead to a great work of art until it’s too late.



This situation can play out in dramatic ways because people are often making bad decisions based on improperly interpreting feedback. For this reason a system often cannot self-regulate and repair itself, the feedback may take decades to resolve itself and by then it’s too late. On an individual scale this is something as simple as not exercising. On a marketing scale this could be a person failing to use a product properly or not experiencing the full benefits of its use. Gamification would be an attempt at making a system capable of self-regulation because it has good enough feedback to where people can make proper decisions based on their own self-interest. They’ll introduce their own corrective behavior and engage more fully.

Advocates of gamification being used for social change would use this to help people experience immediate benefits for tasks like recycling or exercise where those rewards often take time to play out. You get some bonus points every time or your score competes with other participants. That way, even though recycling itself is not giving positive feedback until many years later, the system can still provide it. Marketers, assuming they actually understand what they’re doing, would be using a similar approach by creating a more coherent feedback when engaging with a product.

Just as a law requires a certain amount of social acceptance to function properly, a gamified system would have to align itself with the individual’s own self-interest. Meadows explains, “The most effective way of dealing with policy resistance is to find a way of aligning the various goals of the subsystems, usually by providing an overarching goal that allows all actors to break out of their bounded rationality.” That bounded perspective simply refers to the limits of our perceptions of any system. The feedback helps prevent the “drift to low performance” problem that occurs because people can misperceive negative feedback and cause the system to go into drift. That is, people are no longer behaving based on what’s going on but rather a misperception. The lower the perceived state of the system, the lower their self-interest propels improvement through corrective action because they don’t think it’s working.



A gamified system will have to be sophisticated and carefully tuned to the individual’s wants while also guiding them to longterm goals. This would be the basic dividing line of the play elements (individual wants) versus the longterm goals (serious elements). The problem is that, as noted above, a feedback system is not a game. It does not have the play element in it because it’s a static system. You need a certain degree of competition, creativity, something generating the play form to allow the absorption aspect we’re trying to maintain.

Which is where the complications begin to arise because like the comparison between a utopian society and a more diverse community in a previous post, a game is not composed of one play standard. For each cultural sphere there will be a unique play sphere that applies. More realistically, a culture can support numerous play spheres of different types and in varying states of solidity. The classic example of this is Richard Bartle’s different types of MUD players. If the play sphere exists independently of the game, then it’s important that one maintain a system that is always adapting to the varying needs of the individual to maintain alignment.

Most legal systems are built around the reality that feedback is often slow to arrive. Laws take a long time to create and then long periods of fine-tuning are expected via the common law. Things simply do not change fast enough to necessitate a legal system that quickly modifies itself and preventing improper reactions to feedback is a virtue in this case. One area where this is changing is environmental law because you need to be able to respond more quickly than a traditional front-end system allows. If a natural disaster occurs in an area that has been protected or a species is put at extreme risk, you may need to change the rules that day, not in four years. This is the topic Barbara Cosen tackles in her work..



I’m going to borrow from J.B. Ruhl’s essay on dynamic system theory for this section. The issue with systems that have random elements is how much space do you allow it to deviate before its fundamental structure and purpose has changed. Sticking with our Renaissance example, certain restrictions are imposed on the artist by the patron like make it classically themed or painting the patron standing next to Jesus, while creative independence is also allowed. Excessive control would be like the Big Bear Plane Company example, where the boss is insisting the plane have a propeller because he likes them. There isn’t any one specific element that corrupts the system, it’s the complex nature of their relationship that creates the dynamic

Resilience is the key test for a dynamic system because it gauges what kind of changes it can handle. Ruhl defines it as, “the capacity of a system to experience shocks while retaining essentially the same function, structure, feedbacks, and therefore identity.” This comes in various forms, with Ruhl outlining ecological resilience as the magnitude of disturbance the system can absorb without changing versus engineering resilience tries to channel and minimize disturbances through design. Ruhl uses the analogy of a bowl and ball with the ball representing an occurrence in a system. Engineered design is a vase: the ball has a limited opening to enter the system and it is tightly channeled into a small area of possible outcomes. Ecological resilience is a large bowl: there is more space for the ball to land but it will roll around and potentially stop in multiple places.

Resilience can be problematic if the system is so stiff that it’s producing results outside the acceptable spectrum of standards. A gamified system would have to be a much looser and employ more adaptive reward structures than a traditional game if it wanted to maintain its play element. Ruhl identifies the five key features of a system contribute to the capacity to endure through surrounding change: 1) define problem, 2) determine goals and objectives for system 3) determination of ecosystem baseline, 4) development of conceptual models, 5) selection of future restoration actions, 6) implementation and management actions, 7) monitoring and ecosystem response, 8) evaluation of restoration efforts and proposals for remedial actions. The goal of this approach is to increase response diversity so that unexpected positive behavior can be rewarded without having to change the entire system. It’s the Renaissance, with all its limitations, but still that possibility that you can do something new and amazing.



You need a lot of authority delegated to an individual or agency for this to work. Administrative systems focus too much on the front end design without making changes on the fly. The Renaissance was able to work because it mainly boiled down to the artistic tastes of one eccentric patron in the exchange. They could be bartered with and changes could be made more easily than if one were dealing with a corporation or committee. Whatever elements of play you were extracting out and relying on to induce absorption from the user would have to be carefully maintained in an environment where the serious aspects are always in flux. Large dynamic changes are going to have be made to a gamification system on the fly, you can’t just change the scoring model every year and expect it to hold together.

Which brings us full circle on this series. The very first post on Gamification and Law began by stressing that the most important game design has to offer law is crowd sourcing techniques. Dynamic legal systems represent that idea by proposing laws that can change quickly and respond to social conditions on the fly. Legal theory, in turn, has a lot of nuanced ideas about how to study and address rule systems once you get outside closed-off play systems. My goal with this series was to cross pollinate a wide range of ideas and disciplines on the subject of gamification, something the public dialogue has sorely been in need of. If gamification is to make much progress, it will be in the hands of people who do not care much for boundaries and other static ways of thinking. As Donell H. Meadows comments, “It is great art to remember that boundaries are of our own making, and that they can and should be reconsidered for each new discussion, problem, or purpose.”