Rules and Rulings

All this talk about rules versus rulings and Mother-May-I? and what have you reminds me of the legal realists, particularly Jerome Frank.

Jerome Frank, writing in the 1930s and 1940s, was of the opinion that legal rules are essentially fictional. He was not a postmodernist; his scepticism came from a solid grounding in reality and was based on the premise that no court ever makes a decision based on the "real" facts - the decision often happens months or years after the event, it often relies on suspect eyewitness testimony, and judges and juries are fallible and biased.

Rather than being based on a clear understanding of the facts, then, court decisions are instead merely a manifestation of what individual judges consider to be just and proper in that particular instance, taking into account the impact on society, with the judge paying lip service to the rules after the event. The decision-making process, in fact, is the reverse of what a textbook will tell you, according to Frank. That is, in almost all cases, the judge first makes a decision based on his own idea of what he thinks would be just, and then he searches for a rule to fit it to afterwards.

This was not a problem for Frank, and indeed it was something he thought a mature legal system should embrace. He said:

We want judges who, thus viewing and employing all rules as fictions, will appreciate that, as rules are fictions 'intended for the sake of justice', it is not to be endured that they shall work injustice in any particular case...

In other words, Frank was of the belief that in a mature legal system, the fictional veneer of predictability and robustness that rules provide is valuable, but actually all that really matters is that judges make the just decision in any given case. Applying a rule "correctly" ought never to result in an injustice. Judges, basically, ought to be free to make any decision they deem proper, unconstrained by the need for "legal clarity" or undue respect for rules and principles that have no real basis in reality.

Something similar can be said, in my view, about the role of the GM in a traditional game. I'll use Monte Cook's example as my own:

Say you've got a special weapon (magic or tech, doesn't matter) that makes foes all itchy so they are distracted. In a tightly written ruleset, the designer defines not only the effect, but what (if anything) can counter the effect. Maybe it would state that if the victim suffers a -3 penalty on all actions for the next ten turns unless he spends two consecutive turns and makes a new successful resistance roll, in which case the effect ends. In a GM-logic ruleset, you would write it entirely differently. You would explain what's going on in the situation, and let the GM handle the rest. So it would say that the victim is covered in an itchy and irritating powder and suffers a -3 penalty for the next ten turns while the powder was on his flesh and clothes. Then it would be up to the player to say, "I want to clean the itching powder off." And the GM says, "okay, if you take two turns, and make a new resistance roll, you can get it off." The advantage in the latter case is, the player could also say, "I'm going to jump in this nearby pool of water," and the GM is free to say, "Okay, that washes it off immediately." Or the player might say, "I use the water in my canteen to wash it off," and the GM might say, "Okay, that still takes two turns, but the roll is automatic now." Or the victim's mage friend might conjure a wind to blow the powder off. Or whatever.

The "tightly written ruleset" is the kind of approach that Jerome Frank argued was meaningless and self-defeating: maybe in a very limited set of circumstances it is possible to create rules which will always apply in the same way in all situations, but those rules are rare and in the majority of cases the rule will not be directly relatable to the "facts", which do not really exist in any event. It is better to recognise that, generally speaking, in most situations, the GM will make a decision based on what he or she thinks is best or most appropriate, and may then retro-fit a rule to that decision afterwards. The process for making the itching-powder decision would go:

GM thinks about what would happen if the player tried what he was trying -> GM makes a ruling -> a fictional rule is stated. (Fictional in the sense that no rule is really "real".)

The next time itching powder is used, the same process is followed. It may be that the GM makes the same ruling as before, but he shouldn't feel bound to, because the circumstances may be a little different (this time, it's raining, so the powder can be cleaned of automatically in just one turn of action, or something). He should just decide based on what he thinks is appropriate.

Frank would say we should embrace this if we want to have a mature approach to role playing. Unfortunately, not everybody does.

I don't have any answers

I'm not sure what spurred him on to writing it, but Zak S has a great post up on women in gaming. Go and read it.

Anyway, it got me thinking about discrimination law and gaming. There is a lot of discourse amongst both economists and lawyers on the value of anti-discrimination and affirmative action legislation and what real effects it has. I've heard the argument made by those of the pro-market persuasion that ultimately discrimination law doesn't have a great deal of an effect beyond what can be achieved by the market: if you as an employer deliberately restrict your own access to huge pools of potential talent because you are sexist, racist or homophonic, you will pretty much by definition end up losing out to other employers who don't restrict themselves and will thus have more talent to draw on. Ultimately you will have to rethink your attitudes if you wish to remain competitive. This fact, coupled with the financial implications of regulation, make discrimination law at best irrelevant and at worst a net negative.

Whether or not this is true is by-the-by (it presupposes that all employers will not adopt discriminatory hiring practices, and it also presupposes that you could possibly hold enough other factors constant to be able to discover whether it was true), it's an interesting thought. Think about the RPG industry, such as it is: the people who are traditionally less participatory in RPGs (women, but also non-nerdish men, older people in general, people from certain ethnic minorities within the Western world, and members of the non-English-speaking world to a certain degree) are a huge and largely untapped pool of game-creating talent. Are we persuaded that game systems, gaming movements, or gaming companies which, for whatever reason, appeal to this largely untapped pool, are more likely to succeed in the long run than those that do not? Will we see a Darwinian process by which those systems/movements/companies which tend to remain the province of the nerdish male decline in comparison with those which extend beyond it?

[NB: I'm not saying anything about actual discrimination in the gaming industry here. When I compare those systems/companies which appeal to wider audiences to those which appeal mostly to nerdish men, I'm not talking about anything purposive - I'm talking about the way things appear on a prima facie level.]

I don't think it's a clear-cut case, because I think it's possible to construct the argument that the RPG industry is about niche marketing, and systems/movements/companies which either identify a certain niche or come to be associated with a certain niche can achieve greater success than those intended to have broader cross-market appeal. 

Anyway, discuss. What are you looking at me for? I don't have any answers.

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?

Gygax, Meet the Legal Theorists; Or, How I Learned to Stop Worrying and Love the "Antithesis of Weal"

People talk about Gygaxian prose being abstruse and difficult to understand. I just can't see it. Listen, I work in a field in which people can write sentences which go "Yet despite its veiled presence in various facets of legal pluralism, both at the theoretical level and in praxis, political power has been ill-defined, and, more challengingly, rather ill-conceptualized; although studies in legal pluralism have referred to issues concerning what State law and law generally are, the concept of what power is and where it lies in de-centred or poly-centred legal settings has been underdeveloped," and they're not even joking.

Compared to some of these idiots who call themselves 'academics', Gygax was a veritable Oscar Wilde.

I am the Law

Among my many faults, I am something of a scholar of International Law. (At least, I'm working on a PhD entitled "A new conceptual framework for state-minority relations in the United Nations' human rights monitoring system" - which entitles me to call myself a 'scholar' but which also makes me a hugely pretentious ass.) So naturally enough, in my idle moments my thoughts sometimes drift towards the idea of legal systems being incorporated into fantasy role playing settings. Of course - and I know this to be true, with every bone in my body - such an idea cannot be anything but a recipe for disaster - because what player would ever want to have anything to do with such a setting? Who wants to worry about the law, when you're supposed to be having fun?

Nevertheless, I'm toying with the idea once again. Here are some unfocused ramblings regarding legal systems in fantasy rpg settings. Enjoy.

What interests me, as a legal theorist more than a practitioner, is how a legal system would develop in a typical bog-standard fantasy setting, in which elves, dwarves, humans, hobbits, half-orcs, giants and dragons intermingle in a haphazard way. What would govern the relations of the wildly different races? What self respecting dwarf would abide by judicial decisions made by an elf?

In Early Germanic Law, a similar problem (how to deal with the patchwork of wildly different cultures found through the Holy Roman Empire) was circumnavigated by treating every man in accordance with the laws of his own people. Even if a Frank and a Burgundian committed identical crimes, their treatment would vary according to their specific 'racial' law. It wouldn't be hard to imagine a similar system existing in a fantasy state in which elves, dwarves, humans and halflings lived side by side. What follows is a dreamt-up overview of a set of legal systems for a place called Sachsenpiegel, which I've just made up. It is an ordinary bog-standard fantasy kingdom in which the population is equally divided between humans, elves, dwarves and hobbits.

Human Law

Because humans are the least well educated of the four races in Sachsenspiegel and most of them are illiterate, their law is also the least codified and it relies heavily on custom and precedent. It is enforced by traveling judges, who move from town to town and village to village, hearing complaints and making decisions according to their own analysis, and according to precedent set in similar cases which they have heard about and memorised. They enforce their own decisions, and they are usually very powerful wizards or clerics who are strong enough to carry out required punishments, whatever form they take. Once a year every judge in Sachsenspiegel gets together at a great moot, where they exchange experiences, ideas and judgements.

Dwarf Law

Dwarfish Law is based on the concept of the 'Maegth' - everything is regulated by laws of kinship, and everyone within an extended clan is responsible for everybody else. If a member of a clan has committed a crime, all the members of his clan pay restitution and accept punishment. Likewise, if a crime is committed against a member of a clan, all the other members get together to demand (or enact) retribution. This system can result in very harmonious relations if clans are prepared to keep their members in line. But it can quickly spiral into tit-for-tat blood feuds spanning generations if justice is not perceived to have been done in a particular case.

Elven Law

Elven law consists of a set of simple guidelines for behaviour, based heavily on the concept of harmony. Because elves consider each other basically trustworthy and incapable of intentionally committing a crime, any transgression is viewed as having been accidental and repentance and forgiveness are expected on the part of the transgressor and victim respectively. Punishment is only enacted for refusal to repent or refusal to forgive; refusal to repent can result in anything from a fine to ostracism, whereas refusal to forgive generally results in milder sentences.

Hobbit Law

Hobbit Law is molded by the character of hobbits themselves. The little people like nothing better than poring over books, holding long and intricate discussions, and taking their time mulling over decisions. This makes hobbit law highly codified, extremely arcane, and almost inexplicable to outsiders. Trials typically last for months or even years except in the most clear cut cases, as the two parties, their representatives, and the judges argue the cases and discuss fine (extremely fine) details. Often the two parties (transgressor and victim) will compare notes and ideas very civilly over the existing statutes, precedents and records and what they all mean, and will reach a mutually acceptable decision together with the judges. Clouds of pipe smoke and the the thick smell of beer accompany almost all hobbit legal proceedings.

Interaction of the different systems

In the case of a crime in which the transgressor and victim are of different races, the guilty party is tried in accordance with their own law. This often results in problems, particularly in cases in which an elf 'accidentally' commits a crime against a human or dwarf - as people of those races are unlikely to accept the route of forgiveness.

Such cases are resolved by a council of eight legal elders - two from each of the races, appointed by their respective communities. Together they hash out decisions regarding inter-racial crimes, and generally speaking their decisions are abided by. In the case of further argument, both parties to a case have recourse to the king, whose decision is final.