Procedural Justice as Procedural Rhetoric

by tommy.rousse

In May, I inadvertently sparked a lengthy conversation about the role of Rawls in game design with 140 characters: “Magic: the Gathering Rawlsian veil of ignorance draft format: draft as normal, all players randomly given a deck at each round of play.”1 It’s hardly a perfect analogue to Rawls’ veil of ignorance: decisions are made by the individuals who are to play the game, not a set of beings endowed with perfect rationality but ignorant of their demographic characteristics that might determine their place in society.  The fiction of outrageously powerful wizards magicking each other to the death is also not a great fit with a thought experiment proposed to create a model of a just society.  Nevertheless, I find the core concept of putting game balance in the hands of players intriguing.  It’s an opportunity for players to express their ideas of fairness; that their conceptions of a just game might turn out to be quite unfair in practice is a fairly valuable fail-state.  Just as Race for the Galaxy is a brilliant exploration of opportunity cost (hat tip to Michael Brough), there’s a notional game out there that will allow players to experience the Rawlsian veil of ignorance, or at least procedural justice.  I hazard that such a game might even be fun.  But the Rawlsian veil-game is work for a game jam, not a journal entry.

Instead, I would like to briefly explain Bogost’s concept of procedural rhetoric and Rawls’ categories of pure, imperfect, and perfect procedural justice, apply the latter to games, and explore how Max Weber’s understanding of authority can help us find the procedural rhetoric in procedural justice.

Procedural Rhetoric

“Procedural rhetoric is a general name for the practice of authoring arguments through processes.  Following the classical model, procedural rhetoric entails persuasion—to change opinion or action.  Following the contemporary model, procedural rhetoric entails expression—to convey ideas effectively.  Procedural rhetoric is a subdomain of procedural authorship; its arguments are not made through the construction of words or images, but through the authorship of rules of behavior, the construction of dynamic models.”

—Ian Bogost

Persuasive Games (2007)  p. 29.

It’s difficult to distill the context of Bogost’s argument in a few sentences; he carefully places procedural rhetoric in context with other work on rhetoric in Persuasive Games.  Because almost all processes are conveyed to participants through audiovisual or verbal means, it’s easy to confuse those rhetorics with what Bogost calls “procedural rhetoric.”

Bogost is careful to distinguish between procedural rhetoric and other forms of audiovisual, verbal or “digital” rhetoric.  While those elements certainly contribute to a game’s persuasiveness, Bogost highlights games as a mass medium which are capable of mounting an argument through process.  To borrow Juul’s terms “fiction” and “rules,” we might say that procedural rhetoric is conveyed primarily by experiencing the process of a game, whereby the abstract rule system is given larger meaning through the game’s fiction.  The fiction of a game gives us some context as to what we’re to make of the abstract mechanical system’s relationship to our reality and world-at-large, but the persuasive force of the argument primarily derives through the user experiencing the process of the rules system in action.  To give an example, Jason Rohrer’s game Passage has a procedural rhetoric conveyed through gameplay, and is accompanied by a creator’s statement which attempts to transform the game’s procedural rhetoric into a statement of verbal rhetoric, much as the Preamble to the U.S. Constitution provides a verbal statement of what the procedural system verbally described by that document seeks to achieve.  Rohrer explicitly privileges the procedural rhetoric of the game over his own verbal rhetoric: “Your interpretation of the game is more important than my intentions. Please play the game before you read this. ”

Procedural rhetoric is difficult if not impossible to divorce from verbal and audiovisual rhetorics, as abstract mechanics must ultimately be conveyed through some semiotic system(s), which are meaningful synchronically (at any moment, we can arrest the process and draw meaning from its current position with perfect information about the rules) but procedurally experienced diachronically (over time, experiencing the process allows for the communication of a rhetoric).

I hereby submit that discretion is the better part of valor when it comes to keeping a journal entry of a manageable reading length, and leave my thoughts on procedural arguments as second order semiosis for another day.

Procedural Justice

During the discussion of the Rawlsian draft, Frank Lantz brought up the “cake game,” a process of resource division meant to ensure fairness.  Rawls himself used the same example:

“The intuitive idea is to design the social system so that the outcome is just whatever it happens to be, at least so long as it is within a certain range. The notion of pure procedural justice is best understood by a comparison with perfect and imperfect procedural justice. To illustrate the former, consider the simplest case of fair division. A number of men are to divide a cake: assuming that the fair division is an equal one, which procedure, if any, will give this outcome? Technicalities aside, the obvious solution is to have one man divide the cake and get the last piece, the others being allowed their pick before him. He will divide the cake equally, since in this way he assures for himself the largest share possible. This example illustrates the two characteristic features of perfect procedural justice. First, there is an independent criterion for what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give the desired outcome. Of course, certain assumptions are made here, such as that the man selected can divide the cake equally, wants as large a piece as he can get, and so on. But we can ignore these details. The essential thing is that there is an independent standard for deciding which outcome is just and a procedure guaranteed to lead to it. Pretty clearly, perfect procedural justice is rare, if not impossible, in cases of much practical interest.”

—John Rawls

 A Theory of Justice: Original Edition (Kindle Locations 1510-1520).

Pure procedural justice

In pure procedural justice, there is no standard for what is just outside of the process itself, but the result of the  process is just; thus, an accused party is not guilty a priori but by the process of the trial court and the decision of the jury it produces (admittedly subject to appeal).  Most games are procedurally pure: they are processes designed to give all opponents a reasonably fair chance at winning, and the justice of their victory is proven by their performance in the game.  Compare this open contest to the ritualized Trobriand version of cricket, where the contest has no bearing on the result of the game and the hometeam always wins.  In Roger Caillois’ division of games into four primary elements, games of agon, or competition, strive for procedural purity, with the contest itself to decide who among the competitors is best (Man, Play & Games, p. 14).

Thus, in a procedurally pure game, the rules are agnostic as to which competitor should win, and the just winner is discovered through gameplay.

Perfect and imperfect procedural justice

In cases of perfect and imperfect procedural justice, there is a criteria for justice independent of the process itself, and the value of the process (i.e. its perfection) can be judged by comparing its result to this independent criteria.  If the result of the process is always the same as the a priori just result, it is perfectly procedurally just, and imperfect if not.

Because processes as complex as electronic games often rely on many layers of procedures and subprocedures, we might say that computers (assuming they have been properly programmed) are very good at executing rule systems with perfect procedural justice.  While humans might introduce imperfection to game systems by fudging dice-rolls or miscalculating hit-points, videogames deliver the impartial result of their algorithms consistently.  Thus on the micro(processor) level, we might say that a competitive videogame (assuming no programmer error) provides perfect procedural justice in the execution of the subprocesses which ultimately constitute the purely procedural just contest on the macro level.

Procedural Justice as Procedural Rhetoric

While procedural rhetoric is commonly applied to videogames, and in particular the subcategory dubbed “persuasive games,”2 Bogost argues that procedural rhetoric applies to all media based on process, and expresses hope that his framework will be applied to media beyond games (Persuasive Games, p. 46.)  Bogost himself acknowledges the procedural nature of the justice system (Persuasive Games, p. 3), while Huizinga’s comparison between game-as-agon and trial-as-agon does the same in practice if not in terminology.  Rawls’ model of procedural justice is a fair candidate for an analysis based on procedural rhetoric.

To bring some clarity to our thought experiment, we might ask: what is the persuasive goal for procedural justice?  Let’s borrow a bit of terminology and theory from pioneering political economist Max Weber to frame our discussion, as discussed in “The Three Types of Legitimate Authority.”  Put simply, Weber sought to distinguish between different systems of rule via authority by identifying three categories: charismatic authority, traditional authority, and rational-legal authority (also known as bureaucracy).  For the purposes of our discussion, Weber’s pure type of  rational-legal authority fits well with our investigation of procedural justice.  In a bureaucracy, legitimacy derives not from the individuals who hold power, as in a traditional feudal system or authority based on a cult of personality, but from the offices they hold and the system of laws applied impartially.  In short, the legitimacy of a rational-legal authority is “of laws and not of men,” to crib a phrase from John Adams & the Massachusetts Constitution of 1780.  Those laws are executed procedurally; Bogost identifies bureaucracy as one of the primary connotations of “process” in contemporary discourse (Persuasive Games, p. 3).

To understand why procedural rhetoric might be important to procedural justice, we need to delve slightly deeper into Weberian terminology.  For Weber, rule by authority is distinct from rule by power.  Rule by power is enforced punitively, and maintained only by the exercise of punishment.  Rule by authority is distinguished by legitimacythose ruled accept the authority of the rulers without need for constant coercion (though coercion might very well be an element of that authority, as demonstrated by Weber’s attribution of state monopoly on violence as a fundamental characteristic of modern rule).  We might say then that the persuasive goal of procedural rhetoric is legitimacy, that is to have rational-legal authority freely accepted by the ruled without the need for coercive domination.  In the Weberian system, authority is power exercised with legitimacy.

Thus, the persuasive goal of procedural justice is legitimacy— the basic acceptance of the social contract by the citizenry in modern legal systems.  More specifically, it lends legitimacy not through the flowery language inserted into state constitutions, as Adams’ aforementioned pithy declaration that the government should be “of laws and not of men,” but by the processes described within those constitutions, such as the checks and balances imposed on the three branches of government Adams is discussing, or the process of deliberation and judgment by a jury of one’s peers in the American justice system.  Thus, citizens in a rational-legal system can read a description of the processes meant to provide justice and draw legitimacy from that description (consider the discussion of the U.S. Constitution in American classrooms) or experience the process firsthand by participating in the legal system.

cmykbar

This journal entry is part of a series written for an independent study project at the IT Univeristy of Copenhagen under the supervision of Mark J. Nelson.

  1. See the sprawling twitter conversation collected as parts I, II, & III.
  2. A  subjective category, insofar as Bogost admits that all games have some procedural rhetoric, but only those which are “effective” are included in the genre of persuasive games.