Monday, 26 April 2010

Game Design as Common Law

Most readers of this blog, as citizens of England and Wales, the US, Australia and so forth, will be at least somewhat familiar with the common law - that is, law created by judges rather than by statute. (Though it's my experience that most lay people in England are astonished to learn that the great majority of the principles of English law were not produced by parliament but by courts. Maybe in the US, where cases like Roe v. Wade are so much in the public eye, people are more familiar with the way the system works.) The common law is based on a very simple concept - that judges hear cases, apply precedent and their common sense, and come up with a decision. If there is no precedent, their decision itself becomes the precedent for future cases. Bob's your uncle. It's much more complicated than this (don't let's get started on Lord Denning), but that's the basic mechanism.

I sometimes wonder how a game's rules would look if they were created in this way. Ideally, a common law system has more than one judge, so you would need to have a number of different groups involved (or, more practically, perhaps one large group with a rotating DM). You would start off with an empty page, blank except for the word "rules" written at the top. This would be the blank slate on which the "common game rues" would be set down. Everything that came afterwards would arise through quasi-judicial process.

Here's how it might work. An important aspect of the common law is that it is based on adversarial, rather than investigative, discourse. Two barristers put their case to the judge in an attempt to demonstrate firstly that their arguments are logically sound, and secondly that they follow precedent. In our common law game design system, the adversarial aspect is the realm of the players. The DM is the judge.

First of all, you would probably need a system of character generation. The DM would nominate two players to put forward tentative character generation methods (roll 3d6 for a set of stats, distribute x number of points, etc.), listen carefully to their arguments and any supporting evidence or witnesses/independent experts (the other players), and make a decision. Since there is no precedent on which to base this (it is a case of first impression, to use the technical term) the decision comes down entirely to the discretion of the DM. Character generation proceeds. Some other questions may arise (what benefits accrue to high stats, or penalties to low ones?). These can be dealt with as individual "cases", taking the format described above, or they can be decided by the DM as an aside. (A little like obiter dicta, if that doesn't stretch the analogy too far.) Finally, we have something approaching a set of rules and standards for character generation.

It is important at this stage to point out that these rules and standards will not be coherent or universal. For instance, all of the players may have chosen characters with roles like "warrior" or "magician", but none like a "priest". Therefore, there will as yet be no rules for how to make a "priest". When character generation next takes place (a new campaign, or when a character has to be replaced) a player might express the desire to play a "priest", and so the rules and standards for character generation will have to be expanded; again, two players will argue the ins and outs of this before the DM, demonstrating that their proposals are in line with the precedent set out previously.

Character generation is over and the game proceeds. The PCs come across a chasm. One attempts to jump across. How are we to judge success? A new case has come before the judge. Two players put forth proposals, and the case is decided. It may be that there is already a "jump" skill that has been put forward during the character generation process, or an opinion on the matter may have been expressed but left undecided. These issues will have relevance as precedent, and the DM and players will have to obey the principle of stare decisis in deciding the matter. Their decision will be incorporated into the rules, and will itself form precedent for future cases.

Matters become more interesting from now on. What happens next time a character tries to jump across a chasm? It's in the rules, so the case is simple. What if he's trying to jump onto a moving object? The same rules may apply, but it may also be argued that since circumstances are sufficiently different, this new instance constitutes a case of first impression and a different rule must be created. Or, the decision in the initial case in which the rules on the "jump" skill were decided may contain, in the obiter, opinions on how all "skill" usages are to be ruled upon, and this may have an influence.

Yes I do have too much time on my hands; your point being?


  1. "Judicial activist rules lawyers."

    Just take a second to allow the full horror of that phrase to sink into, and for all the implications to blossom. If you feel an overwhelming sense of nerdrage and a desire to burn it all, do not be alarmed; this only proves you are still sane. ;)

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  3. 1. You may be interested in adapting the Engle matrix game rules to run such a system. It would be an interesting, higher-level adaptation, where you are not creating game play through the process of argument, but game rules; a kind of Engle matrix Nomic (yes, it doesn't get much geekier than that).

    2. You also may be interested in my recently started blog. The first few posts discuss issues of authority and rulings in D&D and other games.

  4. And this, this is why for all the decried horror of Napoleon as an Anti-Christ, he still did much good for the world.

    Nowhere with Civil code EVER goes back to the ridiculous common law approach (QC and LA for instance)

  5. Cool post. I think the proposed system might overly favor rational argument and precedent.

    By the first I mean, it would be very easy to argue for adding more detail to combat, say, making it ever more coomplicated and chart-based. I think some of the most elegant rules are counterintuitive.

    By the second I mean, all that added detail would be nigh impossible to challenge or change once implemented cf. ascending AC.

  6. What you're describing would be an entirely different sort of game than Gygax/Arneson-descended RPGs. The primary adversarial relationship in most RPGs isn't player vs player, with a neutral arbiter referee (the model for common law), but player-group vs GM/world. A wholly different dynamic. A player says "Can I do this?" not "These are the facts."

  7. Chris: You have to follow the cardinal rule of not gaming with dickheads for it to really work, of course.

    Roger the GS: Very interesting looking blog you have there.

    Zzarchov: Actually there's a lot to recommend common law systems over civil codes. Kronman has written a lot on this. Also, it's not really fair to say that Louisiana and Quebec would never "go back" to the common law; they've had French/Roman-based legal systems since way back in colonial times. Changing to a common law system in light of that just wouldn't be feasible - it has nothing to do with the merits of either system, just practicalities.

    Telecanter: That's true, of course. Then again it is possible to radically alter precedent. Lord Denning was famous for doing this, judging almost entirely on what his ideal vision of England was and often ignoring stare decisis entirely.

    Dave: But don't you think that would be a fun experiment to try?

  8. It might be interesting to run the same scenario (or more likely plot, as details will be based on what the game is like) with two different groups, and see what the resulting game looks like in each case.

  9. it'd probably work best if all the players were rpg bloggers


    why not friggin do it?

    way more efficient use of our skills than Seas of Blood!

    all we do is argue about rules anyway, right?

  10. As I understand it, in Australian common law the initial rules are set out by the legislature, subject to the overarching constraints of the constitution (not much constraint) and then tested practically in the courts, potentially to the detriment of the original intent of the law. They can also be referred back to the High Court at any time to resolve disputes (e.g. overturning the doctrine of terra nullius).

    This is a bit different to English common law, right? So in Oz, you have a set of basic rules (the DM'S guide), a "disinterested" (hah!) arbiter (the referee) and then house-ruling by adversarial player-player interaction.

    Maybe you could have different constitutions: constitution 1 says "NO DICE FUDGING" and "NO SKILL SYSTEM" and constitution 2 says "any rule is cool so long as you're wearing eyeliner." And in both cases through adversarial house-ruling, the rules would end up looking like the Australian tax code (millions of pages). Which is a bit like GURPS, I suppose, if you stacked all the books up...

  11. Your idea is interesting, but to me more for what you left out than what you included.

    To my mind, things like character creation, lists of spells (if applicable), etc are not the subject of common law jurisprudence, but the rules and customs of the court. Where an adversarial process would make a real difference is in the style and mechanics of playing at the table.

    Normally, when players oppose each other in tabletop games, it's through direct antagonism: my wizard casts spells at your fighter. However, with an adversarial system, my character's goals and yours might be unrelated to each other, except perhaps for the idea that we both can't get what we want. So I am responsible for role-playing your fighter's orcish adversaries while my wizard researches secret artifacts, and you are responsible for the demon trying to steal my wizard's soul while your fighter liberates the town of Bymouth from orcs.

    In other words, we separate the storytelling role of the referee from rules and mechanical arbitration.

    VERY interesting.

  12. Ever since I started a law degree this semester, it seems like the internet has been trying to tell me something. First your post on RPGs in legal databases, then an article on creating legal systems in RPGs that I found while researching, now applying the common law approach to gaming. Whatever will I find next?

  13. Arguably, common house rules that become official rules are an example of this happening in real life (I think 'dying at -10 hp' started this way?)

  14. kelvingreen: Then make them play each other's game and see how coherent it is!

    Zak: When I have time, i.e. in about five years, I will certainly consider it.

    faustusnotes: You get most of your legal principles from our common law - don't try to pretend like you're a proper country... :P

    Actually nowadays it sort of works like that in Britain too. The legislature makes a lot of the modern law (especially under the Labour party).

    Menace 3 Society: That is interesting, though perhaps an even greater layer of work on top of the original one!

    Stumbled Tuba: Watch this space.

    Anarchist: For sure. But that sort of thing is small fry.

  15. Somebody once used Nomic as a framework for building a Monopoly-like game (do a Google search for "nomopoly"). What you're describing is a thing I've wanted to do for a long time, use Nomic as a framework for building an RPG.

  16. It'd probably be easy to adapt nomopoly to do a Talisman-like game.

    It might actually work better, since Talisman has a lot of square-specific rules, so (like an RPG, but unlike a lot of board games) people can design their own little sub-systems without as much effect on the overall game.

  17. Would they have to write briefs as the rules got more complicated and in depth?

    Would the DM write an opinion so that his reasoning could be cited in the players' future arguments?

    Would they use the Blue Book citing method when citing those opinions?

    Would you be allowed to cite to Fight On! and Knockspell for persuasive authority

  18. haha noisms, I would never do that. Not till we give Charles the boot (and it will be Charles by the time we get around to it).

    Wouldn't this common law system make old schooler gamers the ultimate left wing judicial activists, though? "Rulings not rules," and all that...