Theory: Don’t Make These Arguments

Every game that’s going to be played on a tournament basis has to figure out whether it’s going to allow things like intentional draws and people conceding for tactical purposes (e.g., to improve a friend’s standings). Magic went through this process years ago; Warmachine is still hashing it out; Netrunner is just starting to. It’s good that people are thinking about these things, since they’ll come up and it’s good to have a policy in place.

As a lawyer there are certain arguments that come up in these discussions that I find deeply frustrating. They’re based on fundamental misunderstandings of what rules are for and how they work. I don’t have a position on whether any given game should permit players to choose to draw or concede: there are reasonable arguments in both directions. I know, however, that in arguing in favor of those things no one should ever say either of the following.

Unsound argument #1: It’s hard to detect players throwing games, so we should just let them draw or concede openly.

Laws don’t exist because they’re easy to enforce; they exist because they are deemed necessary. That necessity isn’t impacted by the fact that sometimes people get away with things. We’re all mere mortals, and as a result some wrongs will go undetected and unpunished. It doesn’t follow from a difficulty in enforcement that we have to throw the doors open, and let people do whatever they want.

It’s well known that some crimes are hard to prove. Investigating sophisticated crimes—certain forms of fraud, for example—can take years, and even at the end of that process there might not be enough evidence to make a conviction certain. Nor are criminal laws the only ones where enforcement can be a struggle; monitoring compliance with environmental regulations can be a tremendous and not-always-successful undertaking.

Yet, we still have these laws, because we’ve decided as a society that they’re worth the trouble. They allow us to direct people toward good behavior, and to punish those who do harm. Furthermore, punishment isn’t always necessary for a law to work. Laws have a messaging function: they signal what we feel members of society should be doing. Legal scholars have shown that just having a law on the books has a powerful impact on behavior.

This argument, then, puts the priorities wrong way ‘round. The first question is not “will enforcement be hard.” It is “do we feel the rule is necessary.” If it is necessary, then it becomes appropriate to think out what an enforcement mechanism that’s commensurate with the scale of the problem and the resources available would look like. Asking first about the difficulties of enforcement puts the people doing bad things in the driver’s seat.

Now, my suspicion is that a rule against intentional draws and tactical concessions wouldn’t be anywhere near as difficult to enforce as laws against sophisticated fraud. Take it from someone who’s worked in public defender offices: most people aren’t as good at being underhanded as they think they are. They’ll get busted.

I’ve seen people worry that intentional drawing and tactical concessions are unprovable–that it’s impossible to know the player’s mind. Remember, however, that even in court proof beyond a reasonable doubt—the highest standard of proof in the American legal system—is not proof beyond any conceivable doubt. Sure, it’s always possible to concoct a scenario where someone wasn’t throwing a game, but rather was suffering from some incredible combination of bad luck, an uncharacteristic bout of incompetence, and perhaps a curse placed upon them by an evil wizard. It’s more likely that they were just breaking the rule, and if we can put people on death row while there’s conceivable doubt we should be able to disqualify them from a tournament.

Let’s assume for the sake of argument, though, that the rule will be very difficult to enforce, and that many of those who break it will not be caught. (Again, these are very big assumptions.) Even in this case, the rule is still doing work. It sets a standard for good play, and inculcates values in new players coming into the game. The rate of intentional draws and tactical concessions will decrease, even without consistent enforcement, simply because most players aren’t comfortable being thought of as cheaters and don’t do things they’ve been told are cheating.

That last claim might sound unprovable, but look at the first defense raised by players who intentionally draw in games where it’s a grey area when others call them on it. They rely on the text of the rules! It’s not easy for people to toss the rules aside, even when it would be advantageous to do so.

It’s important to note that this is different from the situation where everyone is ignoring a rule. We’ve all heard funny stories about laws that are hundreds of years out-of-date, but are still on the books. An entire community shrugging off a rule and not even bothering to check for violations suggests that it’s become unnecessary; that’s very different from a rule that is still held out as important.

Some rules are difficult to enforce. In practice it’s generally not that difficult, because even smart people often aren’t good at covering their tracks. Either way, though, rules can still be valuable. They shapes the environment, and in doing so promote their intended end even when they cannot guarantee 100% compliance.

Unsound argument #2: “No one can legislate morality.”

I’ve always found this position—which tends to be stated as a single sentence like the one above—a bit hard to parse. So far as I can tell, there are two ideas at play here:

1. Rules of behavior are different from moral rules. Standards of sportsmanship are moral rules, and therefore are not a suitable subject for rules of behavior.
2. People are going to do what they think is right. Trying to stop them is futile.

Both of those arguments are completely unsupportable.

First, rules of behavior and moral rules constantly intersect. Every law that has ever existed has been a rule of behavior, and they all have some kind of moral judgment behind them. We have environmental regulations because we’ve decided that preventing certain kinds of pollution is more important than economic efficiency. We don’t have other environmental regulations because in those areas legislatures concluded that the social gains of efficiency should win out. Laws against assault and murder exist in the first instance, not because of some economic argument about lost productivity, but because human society determined that those things were wrong and bad. There is no law which does not have some kind of moral judgment behind it.

Given that, there’s no reason why a rule against “unsporting” acts is per se invalid. It may be undesirable; a game might benefit from intentional draws and tactical concessions, and that’s fine. This is simply to point out that it’s necessary to have the conversation.

The second version of the argument requires very little discussion. Laws and rules prevent people from doing things they would feel justified in doing every single day. Sometimes people damn the torpedoes, of course, but that only returns us to the previous unsound argument about uncertain enforcement.

Decide on a proper basis

I don’t mind allowing intentional draws and tactical concessions. However, I would never use either of the above arguments to explain why. If you find yourself taking that position in a debate, I would urge you not to use them, either, and if someone uses them against you, don’t be swayed.

2 thoughts on “Theory: Don’t Make These Arguments

  1. Great detailed treatment of these two debates – I think such a thorough analysis and argument could only come from a lawyer (:

    Honestly, though I’ve played M:tG a great deal, I’m not that familiar with the recent tournament scene. But just for arguments sake, I wonder if it is fair to apply the same logic to tournament rules as to legal rules. While I guess they have some things in common (like trying to make sure things are fair), the scale and the seriousness of them is different. Maybe the differences don’t matter, but it’s interesting to think about.

    1. Thanks for the kind words. 🙂

      It’s a fair point that different rules have different stakes. At the same time, I think the logic behind all rules is constant. “Don’t commit blackmail” and “don’t play cards for less than their casting cost” are alike in that they’re designed to constrain behaviors that have been deemed negative, even though one is much more serious than the other. Both have some kind of moral basis, and they both exist despite the fact that sometimes the behavior under discussion will go unpunished.

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