Law and Chess: An Analogy Worth Considering

Abstract

LAW AND CHESS: AN ANALOGY WORTH CONSIDERING

KELVIN KAJUNA

Second Year LLB Student, School of Law, University of the Witwatersrand

I INTRODUCTION

This essay will attempt to contemplate the validity of asserting that law is analogous to a chess game. The cogency of this assertion shall be determined with reference to the following theories of law: legal realism (especially that of the Scandinavian variety), modern legal positivism and an economic analysis of the law.

II THE VALIDITY OF ALF ROSS’ NOTION OF SCANDINAVIAN REALISM

(a) Alf Ross, On Law and Justice

Games are uniquely human activities whose origins stem from man’s passion for competition and social interactions, and chess is no exception. Inherent to the game of chess are rules that describe the movements of the pieces (e.g. a knight may only move in an L-like fashion) and therefore provide a description of what may or may not be done. These rules essentially constitute the game of chess and any deviations thereof can be seen as ‘not playing chess’.

Legal realism is divided into two camps - namely the American and the Scandinavian. The American realists eschew legal conceptualism and find solace in pragmatist, behaviourist and empiricist ideals.[1] Scandinavian realists take this a step further and advocate for a complete discarding of the metaphysical foundations of law.[2] Alf Ross, in his most notable work, On Law and Justice[3], expounds on Scandinavian realism by asking us to imagine a game of chess.[4] Inter alia, he describes a concept he calls a ‘valid norm of chess’ – a concept which purports to provide a small model by which to define and explain the concept of ‘valid law’.[5] The norms of chess ‘are the abstract idea content [in the form of directives] which makes it possible, as a scheme on interpretation’ to comprehend the so-called phenomena of chess.[6] Ross’ comparison to the law is revealed when he states that valid law is ‘the abstract set of normative ideas which serve as a scheme of interpretation for the phenomena of law in action, which again means that these norms are effectively followed, and followed because they are experienced and felt to be socially binding.’[7] This argument, according to Ross, lends credence to the fact that since metaphysical considerations have no place in determining the norms of chess, they likewise have no place in determining valid law.[8]

(b) A Critique of Ross

Nevertheless, Ross’ reasoning is flawed in several respects. It must be noted that law does not simply exist as an empirical phenomenon. As H.L.A Hart demonstrated in a critique of Scandinavian realism (and legal realism in general), the exclusion of anything vaguely ‘metaphysical’ (such as a notion of ‘justice’) would undoubtedly lead to absurdities.[9] For instance, Scandinavian realists would have, in favour of a more rigid application of the law, rejected the finding in the Zimbabwean case of R v Takawira.[10] The judges in this matter employed a notion of justice (and, it is submitted, common sense) in order to find that a policeman could not be found guilty for being in possession of ‘subversive material’ if this possession was in pursuance of a lawful investigation of a crime.

Although perhaps an extreme example, the above shows that while it is true that the norms of chess cannot necessarily be traced back to a metaphysical analysis of its origin, it is unwise to attribute this same quality to law and exclude anything non-empirical or metaphysical. A more cogent analogy between law and chess can thus be found when dealing with Hart’s conception of the ‘rules of recognition’ and its relevance to modern legal positivism.

III H.L.A HART WEIGHS IN

(a) The Concept of Law[11]

Hart’s seminal work, The Concept of Law, provided both a critique of John Austin’s ‘Command Theory’[12] as well as a conception of Hart’s own propositions as to what the law is. Essentially, Hart’s definition of the law is that of a set of rules further subdivided into what he calls ‘primary’ and ‘secondary’ rules.

‘Primary’ rules deal with the imposition of duties and the conferring of powers to officials or citizens.[13] ‘Secondary’ rules are said to govern ‘primary’ rules insofar as they allow us to introduce new ‘primary’ rules (these are called ‘rules of change’); they allow us to control their operation and determine if a rule has been broken or not (‘rules of adjudication’); and they allow us to determine which rules are or are not part of the legal system (‘rules of recognition’).[14] Furthermore, Hart described two prerequisites for the existence of a legal system: (1) the valid rules of the legal system must be complied with; and (2), secondary rules (especially the system’s rules of recognition) ‘must be effectively accepted as common public standards of official behaviour by its officials’.[15]

(b) Social Rules and Rules of Recognition – one in the same?

Comparisons between law and chess can be found in the consideration of social rules. What distinguishes a rule from a mere habit (such as the habit of chess players to move a knight the same way)[16] is an internal aspect whereby members of society perceive the rule in a particular manner and thus have a specific attitude about it (such as how chess players regard the way a knight moves as a standard for all players of chess and any change from this way of moving would be rejected). This internal aspect is also called a ‘critical reflective attitude’. A rule of recognition is therefore also a social rule because it is subject to compliance and the ‘critical reflective attitudes’ typical of social rules.[17]

IV LAW AND ECONOMICS

The real-life legal context which is perhaps the most analogous to a game of chess can be found in legal proceedings. Much like players in a chess game, parties in a legal dispute engage in attack-and-defence strategies to become the winner. However, as Richard Posner dictates in his Economic Analysis of Law,[18] the overarching winner in such legal disputes may be neither of the parties but in fact the society in which they live – ‘judges frequently decide hard cases by choosing an outcome which will maximize the wealth of [a] society.’[19] Indeed, the ‘legal convictions of the community’ is a common point of departure for judicial officers in South Africa when determining the criminal or delictual liability of an accused or defendant respectively.[20]

(a) Game Theory

Game Theory is defined as ‘a set of tools and a language for describing and predicting strategic behaviour.’[21] A relatively new field of science, Game Theory primarily uses mathematical approaches to decide optimal strategies for parties. Its unprecedented development has resulted in its growing relevance within various legal contexts. For example, the formation of contracts in contract law has been influenced in terms of offers and acceptances and the associated bargaining powers of the involved parties.[22] In relation to competition law, Game Theory has contributed to the extent of our understanding of conflict, collusion and cooperation.[23] Finally, the legal regime of negligence together with contributory negligence is often contentious (in the law of delict and torts) and Game Theory has shed light on the myriad manipulations possible by parties’ legal counsel.[24]

(b) Public Choice Theory

Tactics and strategy making law akin to a chess game are not just finding relevance within the private law sphere – the advent of Public Choice Theory has resulted in the application of Game Theory to law-making by legislatures, regulatory agencies, and courts. Moreover, Public Choice Theory ‘may offer an argument for [the] restructuring [of] the way legislatures or administrative agencies work.’[25] In the South African context, this theory provides an account of how and why law-making bodies should, as far as possible, make use of cost-benefit analyses and public participation or examination. A comprehensive cost-benefit analysis (and indeed increased engagement with relevant stakeholders) would have, for example, benefitted the Department of Home Affairs before it adopted its new visa regulations (requiring, inter alia, that parents travelling with children must be in possession of unabridged birth certificates) [26] with probable negative effects on the tourism industry.

V CONCLUSION

Whilst legal realism as a philosophical contemplation (least of all as a theory of law) may not enjoy as much fanfare as it did in the early twentieth century, Hart’s modern legal positivism continues to be de rigueur in contemporary jurisprudential circles. The successful comparison of law to a chess game by Hart and others has, to a certain extent, helped to demystify law as an institution and as a set of rules. In fact, thanks to increasing discourse and developments within the context of law and economics, individuals and societies alike are becoming more proficient at achieving the proverbial checkmate – be it in the private or public sphere.

[1] Raymond Wacks Understanding Jurisprudence: An Introduction to Legal Theory (2005) 175.

[2] Ibid.

[3]Alf Ross On Law and Justice (1959).

[4] Ibid at 13-18.

[5] Ibid at 29.

[6] Ibid at 16.

[7] Ross op cit note 3 at 18.

[8] Ibid.

[9] Wacks op cit note 1 at 184.

[10] R v Takawira 1965 Rhod LR 162 (RA).

[11] Herbert Lionel Adolphus Hart The Concept of Law 3 ed (2012).

[12]Generally, this theory postulates that laws are derived from sovereign persons or bodies and a society’s citizenry is obliged to adhere to them. This theory subsists within the context of classical legal positivism and shall not be considered in this essay.

[13] Brian Bix Jurisprudence: Theory and Context 4 ed (2006) 38.

[14] Bix op cit note 13 at 39.

[15] Hart op cit note 11 at 116.

[16] Wacks op cit note 1 at 76.

[17] Michael Steven Greene Legal Realism as Theory of Law (2005) 46 William and Mary Law Review 1915 at 1943.

[18] Richard A. Posner Economic Analysis of Law 6 ed (2003).

[19] Wacks op cit note 1 at 249.

[20] See for example Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 42.

[21] Randal C. Picker ‘An Introduction to Game Theory and the Law’ (1994) Chicago Working Paper in Law & Economics at 2.

[22] Avery Katz ‘The strategic structure of offer and acceptance: Game Theory and the law of contract formation’ (1990) 89 Michigan Law Review 215 at 232.

[23]Martin Shubik ‘Game Theory, law, and the concept of competition’ (1991) 60 Cincinnati Law Review 285 at 300.

[24] Picker op cit note 21 at 11.

[25] Bix op cit note 13 at 208.

[26] Immigration Regulations, GN 413 GG 37679 of 22 May 2014.