Game Theory in Jurisprudence
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Most famously, H. Hart used examples from games and sport both in criticizing other views about the nature of law and in clarifying his own distinctive view. Hart, The Concept of Law. Given the frequent appeals to sport in the work of legal philosophers, we should be surprised at the scant attention that has been paid to its complexities. For this reason alone, sport merits serious and sustained investigation by legal theorists. Berman launches his discussion with a detailed recounting of the semi-final match of the U. Williams lost the first set to Clijsters and was down , when a line judge called her for a foot fault on her second serve.
Williams lost it, in more ways than one. Her outburst and threatening behavior toward the line judge resulted in a one-point penalty and a win for Clijsters, as well as additional penalties and universal criticism. Berman offers persuasive considerations in favor of this broadest aim.
Sport and law confront many of the same issues, he observes, including when and where to guide conduct by formal written norms rather than by informal social norms, when and where to make use of rules rather than standards, when and where to leave adjudicators with discretion, and how appropriately to limit that discretion. Berman tells us a bit about where he anticipates that his own arguments might yield dividends for legal theory.
Without elaborating, he offers that in light of his arguments, we can better understand the lost chance doctrine in torts, the difference between claim-processing rules and jurisdictional rules, and the granting of equitable remedies in certain contexts such as appellate litigation. Game Theory and the Law. Calabresi, Guido. The Costs of Accidents. New Haven: Yale University Press. Coase, Ronald. The Problem of Social Cost. Journal of Law and Economics 3: 1— In Philosophy and the Law of Torts. Gerald J. Postema, — Cambridge: Cambridge University Press.
Drobak, John N. Norms and the Law. American Legal Realism. Peter Newman. Volume I: 66—9. London: Macmillan. A Matter of Principle. Cambridge, MA: Belnap. Philosophy and Public Affairs 87— Law and Economics Discovers Social Norms.
Journal of Legal Studies , — Friedman, David D. Posner, Richard Allen. Princeton: Princeton University Press.
Towards a semiotic model of the games analogy in Jurisprudence - Persée
Fuller, Lon L. The Reliance Interest in Contract Damages. Yale Law Journal 52—96, — Bartley III. Chicago: University of Chicago Press. The Collected Works of Justice Holmes , 3 vols. Sheldon M. Kitch, Edmund W.
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Chicago School of Law and Economics. Kornhauser, Lewis A. Notes on the Logic of Legal Change. If the dispute was a game on which I reserve my position , the ritual accusation of cannibalism is part of the game about the game. It accords, in that society, with the narrative typification of being a good contestant. In Hart's terminology, it is part of the secondary rules of adjudication.
It is part of the pragmatics of football that lack of capacity to see everything , and the occasional exercise of judgement on irrelevant factors, should be taken into account. Conceptually, the two are distinct. But even if we adopt ex- pansive conceptions of play and games in this respect, Huizinga's own examples force us to ask the question : playful to whom?
Even if there is jol- lity and entertainment for the spectators, does it follow that this attribute is endorsed equally by the participants? A crude exemplification of this approach may assist in clarifying the relationship between "play". It may not be the same contest. The parties to lit- igation contest the outcome of the dispute which prompted the litigation. Their contest is located at the level of the prag- matics, not the semantics of the trial. The same may be said, mutatis mutandis, for ail of Huizinga 's examples, irrespective of culture and historical period.
In short, it is the notion of contest, not that of play, which provides the common thread. Play is sometimes involved, for some of the participants, but not always.
By chance! The narrative syntagm which repre- sents a basic model bf intelligibility i. By contrast, "play", at least as Huizinga ap- pears to conceive of it, is an attribute of human action, something that is regarded as jolly or en- tertaining. Many such attributions are made in the course of. For some spectators, indeed, that may be what they come to see in whole or in part. But it is the contest which gives the activity its meaning. In offering this distinction, there is no implication that "play" is unimportant, or that semiotics is uninterested in it.
Summing up the formai characteristics of play we might call it a fret activity standing quite con- sciously outside "ordinary" life as being anot seri- ous", but at the same time absorbing the player in- tensely and utterly. It is an activity connected with no material interest, and no profit can be gained by it. It proceeds within its own proper boundaries of time and space according to fixed rules and in an orderly manner. It promotes the formation of social groupings which tend to surround ihemselves. Ehrmann , p. Nevertheless, as Ehrmann points out , p.
For Caillois, moreover, there is a continuum running from ludus controlled play to paidia spontaneous play. Thus, for Ehrmann , p. Play is not played against a background of a fixed, stable, reality which would serve as its standard. Ail reality is caught up in the play of the concepts which designate it. Reality is thus not capable of being objec- tified , nor subjectified. However, it is ne ver neutral. Nor can it be neutralized. Just as culture is, in the last analysis, communication, so is play.
This structuralist approach may assist us later in the argument. My argument will be that, despite strong claims for the universality of some characteristics of games, it is the last level, that of the playing of a particular game the game of. Take, first, the notion of freedom or voluntari- ness, stressed by both Huizinga and Caillois. The latter says that "the player cannot be obliged to participate without robbing play of its nature as alluring and joyful diversion.
But this begs the question : "alluring and joyful" to whom? The very title of Huizinga's book is Homo Lvdens. This is the spectrum from ludus to paidia, suggested by Caillois. Ost himself notes that terminology sometimes reflects this situation : French has just the one word jeu to cover the variety of game activities, while English has both "play" and "game".
More significant still, in English we speak quite natu- rally of "playing a game". Our earlier comparison of football and chess may be located along such a spectrum. Of course, ritual is something which it is al way s eas- ier to recognise in others. On this matter, Midg- ley has some particularly important things to say , p.
AU play that deserves one's attention involves difficulties, rising to a fight. What people take se-. Religion is surrounded by ritual, not because it is ossified and cast aside from real lift, but because it is so important that il demands perfection of form.
And justice demands ritual, although ritual can distort justice. Overt conflict is not the only phenomenon which calls for ritualisation. Midgley , p. Pastimes and games are substi- tutes for the real living of real intimacy. Sports which involve physical contact and dirt e. Midgley points out that games are not interchangeable forms of the ritualisation of conflict. Particular forms of conflict require particular forms of ritual. For example , p. Lawn tennis will not do instead of football for some quite interesting reasons. It ts not a team game : it involves no physical contact and does not make the players dirty.
Moreover there are rackets, which, if used in the spirit of football, might kill people. Midgley also takes issue with the rule book conception of games the one endorsed, in effect, by Hart , as providing an insufficient account of the game. Her argument suggests that the rule book is insufficient largely because it neglects the prag- matic variables which attend the playing of the game , pp.
The Rule Book is misleading ; or rather, it mis- leads those few unhappy people who expect to see the whole truth about anything written down in a book. Books take obvions points for granted. Nor does it mention how you give up playing, but that doesn't show there are no proper or im- proper ways of doing it.
Anyone giving up chess in Russia or football in Glasgow would soon find out about that. Any full use of the games analogy must take account of such variants. Some aspects of law are played with spectators, others without. Spectator participation differs according to the game.
Which aspect of law, we must always ask, is being compared to which aspect of the playing of which game? Is it essential to the playing of any game that one is conscious that one is so doing? Again, such a conceptual claim is often made. Huizinga speaks of play as standing "quite consciously outside "ordinary" life", and applies this to children's play, the playing of sports, the actor, and the violinist Midgley , p.
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But is it really essential, or merely a characteristic often or normally found? And what is the consciousness here involved? Is it a consciousness that the attribute "play" is associ- ated with the activity, or that the activity stands, somehow, outside of everyday life?
One hears barristers speak of advocacy as a game, but they may not apprehend it as such at the moment they are engaged in it — despite the fact that they may be conscious that they are deriving pleasure from it. In re- sponding to her last House of Commons debate as Prime Minister, on a vote of no confidence in her government, Mrs. Thatcher turned round and proclaimed : "I am enjoying this! Thatcher had some hours earlier already an- nounced her intention to resign. Finally, there is the vexed question of the separateness of games from everyday life.
Caillois adopts a more. Midgley observes , pp. This, I suggested, means that they are discontinuons with the life around them. That seems to be how the term is used in mathematics ; the Theory of Games deals with a certain set of closed Systems. But when you bring the term into moral philosophy and ap- ply it to people 's actual activities, the reasons and motives begin to matter. She gives as an example Bobby Fischer, playing chess.
We could not say to him, especially when lie is playing in a tournament : "calm down, chess is only a game. In other words, chess neither is nor is not separate from everyday life : it is only the playing of a particular game of chess which may be said to be so. We see that we are dealing, once again, with the pragmatics of game-playing,. We are now in a position, without over- elaboration, to identify and respond to the ba- sic epistemological question about games posed by Wittgenstein.
There is no point in seeking to de- fine a game in the abstract at the purely seman- tic level , since such a phenomenon has no discursive existence. We may, however, sympathise with Midgley in seeking some model of games which will enable us to account for their varying characteristics in a more systematic fashion than does the theory of family resemblance.
I suggest that semiotics is able to provide such a model. The game is a discourse rendered intelligible through its manifestation of basic structures of signification. The "serious" and the "playful", the weak and the brave, appearance and reality, sincerity and lying, are relations of this kind.
However, our main concern in this context is with the syntagmatic axis. Such a "narrative syntagm" was formulated through the re- analysis by Greimas of Propp's Russian folktales, and is particularly well adapted to the semiotic analysis of human action. Equally, this semi- otic model sees no conceptual distinction between speech-act ion and other forms of action.