Social science of rules of the game for skat law
3 men, three cards in hand, three cards hidden, visualising Rome's Senate anteroom 300 BC..
Prelude:
… we have chosen to treat the game of skat in this context as being comparable with those fundamental elements that “history” bears witness to and that the “social sciences” deal with.
I have been reading extensively for a few days in order to build a picture of the ‘rules’ that will have guided the main actors in mid-republic Rome. The essence of the empirical matter is that Rome had written laws and unwritten rules of behaviour alongside the normative obligato of patron client relations which will have guided the thoughts and actions of the key ‘players’ at the table in the anteroom of the Senate as they sought to make a single governance-related decision. But laws for guiding and instructing administrative state decision-making action did not begin to be written down and systematised as ‘public law’ until the late republic. My preparation for a system theorisation of Rome’s mid-republic (e.g. 300 BC) separation of powers requires me to obtain and combine sufficient knowledge of pre-existing informal mores, existing formal private law, the limits of public law, relations between Senate and magistrates, and personal obligations of clientelist social relations in order to divine the inner instincts and motives of our three men ‘deciding on decisions’ at table.
More about the ‘mores’ and ‘rules’ in Rome will appear here soon …
I know, I committed myself to not relying on Max Weber or any other theorist in my new theory of the π of society through history. I stick with the commitment. Now and then, though, when juggling new empirical matter with one hand and new theory with another hand, it helps to be reminded of how great masters do theory. Today I return to Weber and exhibit fragments on ‘exchange’ and ‘game rules’ relevant to ‘Rules in Rome’. You may think of them as ‘mind exercises’ to raise ‘mind fitness’.
Weber refers to ‘rules of the game’ akin to rules of law in a game of cards called “skat”.
[Skat: a German three-handed trick-taking card game with bidding.]
[With art works of complex system calculations involving 2-4 persons.]
The Card Players, by Paul Cezanne (Date: 1890-1892)
The Source of extracts exhibited below:
‘… overcoming the materialist conception of history’, first published in Archiv für Sozialwissenschaft und Sozialpolitik 24 (1907), pp. 94–151. From: Max Weber: Complete Methodological Writings, edited by Hans Henrik Bruun, Sam Whimster, Routledge 2012
[MGH: first some useful definitional preliminaries]
Analysis of the concept of a “rule” …
… let us stop here and consider the question of the various ways in which the words “governed by rules” and “rule” can be understood.
First of all, the word “rules” may be understood as designating
(1) general statements concerning causal interconnections, in other words: “laws of nature”.
If the word “law” is in that connection to be reserved for general causal statements that are strictly unconditional (in the sense of admitting no exceptions), then
(1a) the word “rules” must be restricted to those empirical statements that do not satisfy the criterion of absolute unconditionality.
Conversely, the word “rules” can also cover
(1b) all those so-called “empirical laws” that, empirically speaking, admit of no exceptions, but where we have no knowledge of the causal conditions to which this empirical state of affairs should be ascribed, or where that knowledge is at least insufficient from a theoretical point of view.
As an example of (b), it is a “rule”, in the sense of an “empirical law”, that human beings “must die”; and as an example of (a), it is a “rule”, in the sense of a general empirical statement, that, if a member of a student fraternity is slapped in the face, then certain reactions of a specific kind on his part are “adequate”.
Second, the word “rule” can designate
(2) a norm by reference to which present, past or future events are “measured” in the sense of a value judgement — in other words, a general statement of how something ought (from a logical, ethical, aesthetic point of view) to be, as opposed to the empirical statement concerning “what is”, which the “rule” in cases (1a) and (1b) is exclusively concerned with.
That the rule “is valid” means different things in the two cases. In case (2), it implies, the existence of a general imperative, whose content is identical with the norm as such.
In case (1), it simply asserts the “validity” of the claim that the actual regularities that correspond to the rule are “given” in empirical reality, or can be inferred from that reality by means of generalization.
The sense of these two basic meanings of the concepts of “rule” and “regulatedness” is quite simple. However, those concepts have other meanings that do not on the face of it seem to fit smoothly into either of the two basic ones. … [omitted, not relevant]
[MGH: this section is not as essential as the section that follows below it]
[The Exchange]
… we have [now] arrived at the concept of “social regulation”, i.e. a rule “valid” “for” people’s behaviour towards each other …
… Let us right away consider an elementary example … to illustrate the significance of the “rule” for the concept of “social life”. Two persons who otherwise have no “social relationship” at all … encounter each other in Africa [and] “exchange” two objects of whatever kind. It is emphasised — quite correctly — that, in such a case, the mere description of the event as it can be perceived externally, that is to say: the muscular movements and possibly (if “words” were spoken) the sounds that, so to say, constitute the physical aspect of the event would in no way capture the “nature” of that event. That “nature” stems from the “meaning” which each of the two participants ascribes to his external behaviour, and, in its turn, this “meaning” of their present behaviour represents a “regulation” of the way in which they will behave in the future. Without that “meaning”, it is claimed, there is no possibility at all of performing an “exchange” in reality, nor is it possible to construct it conceptually. Certainly! The fact that “external” signs serve as “symbols” is one of the constitutive presuppositions of all “social” relations. But …
… it is quite common for one of the exchange partners, or both of them, not to take the normative “meaning” of the exchange — which they know is usually treated as being ideally “valid”, i.e. as something that ought to be valid — as a “normative maxim” for himself. Instead, that partner, or both of them, will gamble on the chance that the other partner will do so: in that case, his own maxim is purely “instrumental”.
Of course, from an empirical point of view, it is quite meaningless to claim that, in those cases, the process is actually “regulated” in conformity with the ideal norm — that the acting persons have regulated their relations in that way. Nevertheless, we do occasionally express ourselves in that way; but this is an instance of the ambiguity surrounding the word “regulated”, which we also noted in the case of the man with the artificially “regulated” digestion, and which we shall repeatedly encounter again.
It is harmless as long as one always keeps in mind what is understood by it in the concrete case. On the other hand, it would naturally be completely absurd if the “rule” which the two exchange partners have (according to the dogmatic “meaning” of their conduct) supposedly submitted to were then described as the “form” of their “social relationship”, that is to say: as a “form” of events: That “rule”, which has been derived dogmatically, is in itself in every case a “norm” that claims to be ideally “valid” for action, but it is under no circumstances a “form” of something that empirically “exists”.
Of course, if someone wants to discuss “social life” as something that exists empirically, he cannot allow himself a logical somersault into the domain of what dogmatically ought to be. In the domain of what “Is”, the “rule” from our example exists only in the sense of an empirical “maxim” of the two exchange partners that can be causally explained and that has causal effects. In terms of the concept of “nature” developed above, this would be expressed as follows: The “meaning” of an external process will also, in a logical sense, become “nature” when the investigation concerns its empirical existence, as this is not a question of the “meaning” that the external process “has” dogmatically, but of the “meaning” that the acting persons in the concrete case either actually associated with it, or — as it seemed from the visible “features” of the process — gave the impression of associating with it. Naturally, this also completely holds for the special case of “legal rules”.
[MGH: the essential section]
Rules of the game
… before we move on to the area of “law” in the usual sense of the word … we have chosen to treat the game of skat in this context as being comparable with those fundamental elements … that “history” bears witness to and that the “social sciences” deal with.
The three skat players “subject themselves to” the rules of skat, it is said; this means that they adopt a “normative” maxim according to which certain criteria shall determine (1) whether someone has played “correctly” — that is: “in conformity with the norms” — and (2) who shall be deemed to be the “winner”.
From a logical point of view, this statement can be examined in very different ways. First of all, the “norm” as such – that is to say: the rules of the game – can be made the object of purely theoretical considerations. These considerations may take two forms. They may lead to practical value judgements, as for instance when a “skat congress” (as actually happened some years ago) discusses whether it is not appropriate, in the perspective of the (“pleasure”) “values” governing the game of skat, to immediately introduce the rule that, henceforth, any “grand” [one type of contract] shall outrank a “null ouvert” [another type of contract]. This is a question concerning skat policy.
Or, alternatively, they may be dogmatic and ask … a question falling under the general theory of the laws of skat, viewed in the perspective of “natural law”. Other matters belong to the domain of the jurisprudence of skat, as for instance the question whether a game is deemed “lost” when the player has “played the wrong card”, and any question as to whether a player has in a concrete game played “correctly” (i.e. in conformity with the norm) or “incorrectly”. On the other hand, the question why a player has played “incorrectly” in a concrete game (deliberately? unintentionally? etc.) has a purely empirical – and more particularly: a “historical” – character.
A question that “involves values” but that can be resolved by purely empirical means is whether a player in a concrete game has played “well” – that is to say: effectively. It can be decided on the basis of “rules of experience”, which, for instance, indicate whether a particular line of play will in general increase the chance of “forcing out the Ten”, or not. These general rules of practical skat wisdom are therefore based on empirical propositions that can be calculated, and – to a varying degree – be given a stringent form, by reviewing the “possible” combinations of cards and also, possibly, by drawing on one’s practical experience of how the other players will probably react. Such propositions are “rules of good practice” that can serve as standards for “evaluating” the effectiveness of the player.
Finally, the play might be measured against the “ethical norms” of skat: If one plays carelessly, and thereby lets the common opponent win the game, this will usually call forth a solemn reprimand by one’s partner; on the other hand, the empirical ethical norm of skat usually does not judge too harshly the maxim of bringing in as the third player a so-called “sacrificial lamb”, so that the other two can jointly fleece him – although that maxim is most reprehensible from a “humanitarian” point of view. Corresponding to these different possible varieties of valuations, we can, in the empirical domain of skat, distinguish between maxims of “ethics”, “lawfulness” and “effectiveness”: logically, the principles of valuation in which these maxims are rooted are quite different from each other, and the “normative” status of the principles varies correspondingly …
… However, just as with the [economic?] “exchange”, as soon as we move into the domain of empirical–causal investigation, those points of orientation are resolved into actual complexes of ideas that determine the actual conduct of the player. In doing so, those complexes of ideas may either conflict with each other. For instance, the player’s interests may be in contradiction with his compliance with the “maxim of lawfulness”; or (as is regularly the case), they will conjointly determine the player’s conduct.
On the basis of his “interpretation” of the “rules of the game”, of his general “experience as a skat player” and of his “ontological” assessment of the distribution of the cards, the player will lay his ace on the table because he believes that this is the adequate means of bringing about a state of affairs that, according to the “rules of the game” as he sees them, has the consequence of making him the “winner”.
For instance, his calculation may be that, as a result of his playing the ace, the other player will lay down a ten, and that this, together with a series of further plays anticipated by him, will yield precisely that final outcome. On the one hand, he counts on the fact that the others will let their play be guided by the “rules of the game”, which are also present in their minds, in the same form as in his own. He counts on this because he believes that their subjective “maxim of lawfulness” is sufficiently constant as a determining factor – as, in general, they are known to him as persons who usually act in conformity with “ethical maxims”.
But on the other hand, given his knowledge of their qualities as skat players, he also takes into account the probability of their playing more or less “effectively” (i.e. in conformity with their interests) from a teleological point of view – in other words: that they are, in the concrete case, able to realise their “maxim of effectiveness”.
His considerations, which determine his play, are expressed in propositions of the following form: The other players will not deliberately violate some rule A of the game and will play effectively; the distribution of the cards is Z; therefore, if I do X, Y is the probable consequence.
There is no doubt that the “rules of the game” can be described as the “precondition” of a concrete game. But one must be clear about what this implies for the empirical inquiry that we are now discussing. First of all, the “rule of the game” is a causal “factor”. The “rule of the game” — conceived, of course, not as the “ideal” norm of the “laws of skat”, but as the idea that the players in a concrete game have of its content and its binding force — is one of the motives determining the actual conduct of the players. Each player will — normally — “assume” that all the other players will make the rule of the game their “maxim” of conduct. This assumption is in actual fact normally made (it may subsequently be verified to a greater or lesser extent) and, as a rule, it is the substantive “precondition” of the decision by each of the players actually to let his own action be determined by the corresponding maxim — or, if he is a cheat, to pretend that it is being so determined.
In a causal analysis of the course taken by a concrete game of skat, the assumption by each of the players that the others conform to a “rule” which is in fact usual, and therefore also their “acquired” knowledge of that “rule”, would have to be classified, within the causal regression, as a determinant that was normally just as constantly effective as all the other causal “preconditions” of the way a player conducted himself. To that extent, there is no difference at all between that determinant and the “conditions” generally necessary for the life and conscious action of human beings.
However, if we describe the rules of skat as the “precondition” of empirical knowledge of skat, the meaning of this statement is of course, logically speaking, fundamentally different. What it means is the following:
Contrary to the other, “general”, substantive “preconditions” of events, the “rules” are for us the characteristic distinctive feature of “skat”.
To spell it out more elaborately: Phenomena that are considered relevant in terms of a norm of play that is usually described as the “rules of skat” will, in our eyes, constitute a distinctive complex of performatory acts as being a “game of skat”.
The intellectual content of the “norm” is therefore the criterion according to which what is “conceptually important” is selected from that multiplicity of cigar smoke, beer drinking, banging on the table and comments of every kind that furnishes the customary context of a good old German game of skat, as well as from the incidental “milieu” of the concrete game.
We “classify” a complex of phenomena as “skat” when it contains phenomena that are deemed to be relevant for the application of the norm. Moreover, those are the phenomena whose causal explanation would be the task that a “historical” analysis of the empirical course of a concrete “game of skat” would set itself. They constitute the empirical collective entity that we call a “game of skat” and the empirical generic concept of “skat”.
To sum up: What defines the object of the investigation is its relevance from the point of view of the norm. To begin with, it is clear that the sense in which the rules of skat are here the “precondition” of our empirical knowledge of skat — in other words: the specific criterion of a particular concept – should be strictly distinguished from the sense in which they (that is to say: the fact that the players know them and take them into account) are the “precondition” of the empirical course of “games of skat”. And, furthermore, the function of the normative concept in the classification of phenomena and the definition of the object of investigation does not in any way alter the logical character of the empirical, causal investigation of the object that has been defined in that way. …
… This is a case of the so-called “teleological” concept formation, which is not confined to the observation of “social” life and not even to the observation of “human” life. Biology “selects” from the multiplicity of phenomena those which are “important” in a certain “sense” — i.e. from the standpoint of “sustaining life”.
When we discuss a work of art, we “select” those elements of the multiplicity of the phenomena that are “important” from the standpoint of “aesthetics” (not in the sense of being aesthetically “valuable”, but in the sense of being “relevant for aesthetic judgement”). The same happens even when the aim is not to perform an aesthetic “valuation” of the work of art, but to “explain” its distinctive individual character, or to use it as an example to illustrate general causal propositions concerning the conditions of artistic development – in other words, in both cases, the acquisition of purely empirical knowledge.
The relation to aesthetic or biological “values”, or to the “values” of the laws of skat, “pave the way” for our selection of the object to be explained. And, in those cases, the object itself “is” not artistic norms, nor the vitalistic “purposes” of a god or world spirit, nor the doctrines of the laws of skat. Instead, in the case of the work of art, the object is the brushstrokes of the artist, determined by his state of mind (which can in turn be causally explained by his “milieu”, his “ability”, by the “fortunes of his life” and by concrete “impulses”). In the case of the “organism”, the object is certain processes that can be perceived physically.
And, in the case of the game of skat, the object is the thoughts and the external performatory acts — both of them caused by actual “maxims” — of the players. …
… To sum up, we have seen that, in empirical investigations, the “rules of skat”, playing a role as a “precondition”, can have three functions that are logically completely different from each other: in defining the object, their function is classificatory and conceptually constitutive; in establishing knowledge of the object, they have a heuristic function; and finally, they function as causal determinants of the object of knowledge itself.
Moreover, we have earlier had a clear demonstration of the fact that the rules of skat can become an object of knowledge in ways that are fundamentally different: in relation to skat policy; in relation to the laws and jurisprudence of skat (in both those cases, as an “ideal” norm); and, finally, in their empirical aspect, where they have an actual effect and are actually caused.
From this, we can already draw the conclusion that it is absolutely necessary to establish with the greatest of care, in every case, in what sense one is speaking of the “meaning” of a “rule” as a “precondition” of acquiring any sort of knowledge.
Above all, we can conclude that, if one does not carefully avoid any ambiguity of expression, this will increase to its fullest extent the ever-present danger of hopeless confusion between the empirical and the normative.
Card Players, by Harriet Backer (Date: 1897)
Legal rules
[MGH: By the word ‘norm’ Weber means ‘convention’]
Let us now move from the domain of the “conventional” norms of skat and the quasi- “jurisprudence” of the “laws of skat” to the domain of “genuine” law. The question of the crucial difference between a legal and a conventional rule will be left aside for the moment. …
… we shall recapitulate a few points: One conclusion at least can be drawn from what has already been said: it makes no sense to conceive the relationship between legal rules and “social life” as one in which the law could be seen as as a “form” of “social life” … and to attempt to draw “logical” inferences from that conception.
The legal rule, viewed as an “idea”, is not an empirical regularity or a “regulatedness”. On the contrary, it is a norm [i.e. convention] that can be conceived as something that “should be valid” — in other words: it is certainly not a form of being, but rather a standard of value against which actually existing phenomena can be evaluated, if we seek “juridical truth”.
And, viewed empirically, the legal rule is even more definitely not a “form” of social being — regardless of how social being is defined conceptually — but [it is] a substantive component of empirical reality, a maxim that is, more or less “strictly”, a causal determinant of the empirically observable conduct of some human beings — the number of whom is in any given case indefinite — and that is, in the individual case, followed more or less consciously and more or less consistently.
Experience shows that judges follow the “maxim” that directs them to “decide” “conflicts of interest” according to a certain legal rule; other people — bailiffs, policemen and so on — then have the “maxim” that they should “carry out” that decision; moreover, generally speaking, most people think “legally” — that is to say: they make compliance with legal rules one of the maxims governing their conduct.
All these circumstances are elements – extraordinarily important elements – of the empirical reality of life and, more especially, of “social life”. We used the term “empirical ‘legal order’” to designate the “empirical existence” of law as maxim-creating “knowledge” possessed by concrete people. This knowledge — that is to say: this “empirical legal order” — is one of the determinants of the behaviour of the acting human being.
And to the extent that his action is purposeful, the empirical legal order is, from one point of view, one of the obstacles that he endeavours to surmount — either by violating it while running as few risks as possible, or by “adapting” to it — and, from another point of view, an “instrument” that he tries to make use of for his “purposes”, in exactly the same sense in which he would make use of his knowledge of any other rule of experience. He may possibly attempt, by influencing other people, to alter the empirical substance of the legal order in accordance with his “interests”, in exactly the same sense (logically speaking) in which he would try to alter some constellation in the natural world by the technological exploitation of the forces of nature. …
… “judges”, will go through a series of procedures and then sign a document (called “judgement”) … When calculating whether this result can be expected with a fair degree of probability, he, or his “lawyer”, will of course above all consider the question of how the judges “ought to” decide the case according to the “conceptual” meaning of the legal rule. But this “dogmatic” consideration will not be of much help to him, since its result, however “impartial”, will, for his empirical purposes, be only one item in the calculation of the probability of the empirical process to be expected. Even though his lawyer has conducted a conscientious investigation and concluded that the “norm” — considered in its ideal aspect — would be in his favour, he is quite well aware that, for innumerable reasons, it may still happen that he “loses” in court. (This colloquial way of referring to that outcome is significant and very characteristic.)
In fact, legal proceedings are completely analogous to the “game of skat” — an observation that should need no further explanation. Here, the empirical legal order is the “precondition” of the empirical course of events — in other words: it is a “maxim” for the judges deciding the case, and an “instrument” for the parties to the dispute; and knowledge of the logical “import” of the empirical legal order. In other words: its meaning when viewed in the perspective of legal dogmatics is an indispensable heuristic instrument for the empirical causal “explanation” of the actual course taken by legal proceedings in a concrete case: as such, it plays a role that is just as important as that played by the rules of skat in the “historical” analysis of a game of skat.
… if we want to arrive at a causal explanation of a concrete judicial process in its judicial aspect, our explanatory interest focuses on the legally relevant elements of the process. In this case, therefore, the analogy with the rules of skat is complete.
The empirical concept of the concrete “legal case” is — just like the concrete “skat case” — exhaustively defined by those elements of the given section of reality that are relevant from the standpoint of the “legal rule” (in the “skat case”: the rules of skat).
… those “facts” whose distinctive character and causal explanation “matter” to us are no longer necessarily the same as those facts that are the “relevant” ones from the point of view of the legal rules — in contradistinction to the relationship between the “rules of skat” and the concrete skat game, and between legal rules and legal proceedings.
This is true although the distinctive character of the concrete “legal order” in existence at a particular time and in a particular place may be one of the most decisive causal “conditions” of all those facts, and although the mere existence of a “legal order” may be a general (substantive) “precondition” of those facts, a precondition that is no less indispensable than is the availability of wool, cotton or flax and the usefulness of those raw materials for providing for certain human needs. …
… If the desired result is attained, then there is no doubt that the “legal rule” has causally influenced the fact that, in future, the chimney will no longer belch heavy smoke. Of course, it has not had that causal influence as a conceived ideal “Ought” (a “norm”), but as actually bringing about a certain behaviour on the part of the persons involved — for instance, the judges, in whose minds the “legal rule” was present as a “maxim” for their “decision” …
The “empirical legal order” has the character of a “rule” — that is to say: it is a fact, which can be established as such and which is known to a large number of people, that the “maxim” of “judges” tells them that, if conflicts of interest are accompanied by the same generally defined states of affairs, the decisions rendered and enforced by the judges concerning those conflicts of interest should, generally speaking, be the same.
In other words: the “legal norms” have the character of generalized propositions — “legal rules” — and they are present in that form as “maxims” in the minds of judges. And the — partly direct, partly indirect — effect of this is to bring about empirical regularities in the actual conduct of human beings towards each other and in relation to material objects.
… let us consider the situation where a certain new “legal proposition” is “created” empirically. We define this as the fact that a “symbolic” process takes place in a specific manner that corresponds to what a large number of empirical persons habitually regard as the usual and binding way of “establishing” legal rules. The “effect” that this new “creation” of a “legal proposition” has on the actual conduct of these persons, and of others whose conduct is susceptible to their influence, can in principle be “calculated”, in accordance with our experience, in exactly the same manner as the effect of some “natural phenomenon”.
Therefore, it is possible to formulate general empirical propositions concerning the “effects” of legal propositions in exactly the same sense as other propositions of the form “x is followed by y”; and we are all familiar with such propositions within the domain of everyday political life. From the point of view of logic, these empirical “rules” … are statements as to the adequate “effect” of the empirical validity of a legal proposition. …
… In the case of “conventional rules” [i.e. conventions], as in the case of “legal rules”, there is, logically speaking, a world of difference between the “rule” in the sense of an imperative and the empirical “regulatedness”.
And, from the viewpoint of an investigation whose objects are empirical regularities, “conventional rules” [i.e. conventions], in exactly the same sense as “legal rules”, are one of the causal determinants to be found as part of the object; and — just like the “legal rule” — it is neither a “form” of being nor a “formal principle” of knowledge.
In any event, the reader will already, a long time ago, have grown tired of this long-winded exposition of completely self-evident points, all the more so since its language is still extremely crude and imprecise – a consequence of the fact (which was noted earlier) that the formulations are purely provisional. [END OF EXHIBIT]
You can see the ‘provisional’ process of making theory. Within the next 24 hours I hope to publish my statements about statements published at least a decade later by Weber which more clearly set out the evolution from custom-to-convention-to-law and I think represent his final ‘conclusive’ position. All in preparation for Rome.
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