Force of Law

I do not feel particularly well qualified to write about this, but it seems to me that recent events have dramatically and urgently gestured at the nature of the rule of law, and the tenuousness of reliable enforcement. Since coming into office, the new administration has been carrying out actions that many legal experts suggest are illegal. In several cases since then, judges have issued orders which demand a pause on particular actions. Most recently, the New York Times reports that a judge has now ruled that the White House has failed to comply with a court order. While less splashy than various overt actions, this kind of failure act seems to me like to very close to the red line suggested by various commentators, including conservatives.¹

In the coverage that I have been reading of what has been happening, legality seems to have been the paramount frame that has been used to put things into context. Although everyone knows that many points of law are uncertain, and occasionally shifting, we tend to take it for granted that the edifice of law itself is stable. We might have experts on one side or the other weighing in on the legality or illegality of various actions, but, at least in normal times, there is an assumption that there is a clear process by which things are decided, and cases will eventually make their way to the supreme court, where things will be decided and subsequently enforced. The part that is typically less emphasized is the question of enforcement.

At the risk of appearing to trivialize serious matters, I think that games can provide a helpful entry point into this conversation. Although this doesn’t apply in every case, most (board) games have something that we think of as rules, which delimit the space of what is allowed and disallowed, albeit often with a certain degree of vagueness or ambiguity.² Naturally, however, those rules only extend so far. For example, rules typically won’t bother defining what should happen if a player is caught cheating. They also won’t likely try to account for actions that are outside what we might think of as the bounds of normal play. If the game has an economic dimension, the rules might say that one player is not allowed to simply give resources to another player, but they probably won’t say that a player is not allowed to take resources from another, nor what should happen if a player were to try such a thing.

Part of the reason for this is that games are generally taken to be a semi-cooperative endeavor. Although they are nominally competing against each other, by the act of agreeing to play a game together, players enter into some sort of unspoken arrangement, where they implicitly agree to abide by certain ideas, towards some sort of common end. Even if there will ultimately be only a single victor, all players ideally benefit from a pleasant shared experience, or at least the chance to fairly compete to be the victor. If one player flagrantly breaks the rules, the players themselves would need to decide what to do about it, which might involve some sort of collective decision, or deferring to the local “rules lawyer”, or perhaps the person who owns the game or proposed the gathering. Through whatever means, the group might decide to punish the cheating player in some very specific way, or they might expel them from the game, or (most likely) the game could just come to an end. Many games depend upon a certain internal balance, and removing one player part way through often distorts things enough that it would no longer be rewarding to keep playing (perhaps because things would be a foregone conclusion at that point).

Probably the more common scenario is not outright cheating, but cases where the rules were not clear, or a player made an honest mistake. It’s fairly common for a player to take some action that they thought was legal at the time, and is only revealed later to have been in error, or possibly in error. In many such cases, there will be one player who has read the rules more carefully than the rest, and is therefore able to point to the specific clause in the rulebook that reveals the correct decision. In other cases, however, rules are simply incomplete.

For many games, when the rules break down, it might be possible to refer to online errata published by the maker of the game, or discussions with the games designer, or even to community forums, which perhaps have various house rules adopted by different groups. At that point, however, things are clearly beyond the limits of the original game. Unless the players have pre-established a rule about how ambiguity will be resolved, there may need to be some sort of process for deciding on a resolution.

The problem of course is that at that point, the effect of the rule can be anticipated, and it will most likely be consequential (or else it might not have even come up), such that different players will have different interests, and the process for deciding can itself be gamed. If the game is truly a one off event, then we might expect players to argue somewhat selfishly for the outcome that would benefit them the most, at least to the degree that they are invested in the outcome. In many settings however, players will need to think about not just this one game, but all games they might potentially play with these same people. A useful concept for this, which I first encountered in a Lost in the Shuffle column by game designer Richard Garfield, is the idea of the metagame.³

The idea of a metagame has by now become a much more familiar concept, in part because of its relevance to various ever-evolving online games, but the relevant point here is that people who regularly play games together are invested in not just the outcome a single game, but rather something about the series of events they will have together. In the original article, this related to strategy—a player might choose not to betray another player in one game, or else they would be penalized in the future by other players trusting them less. But it also applies to the overall stability of the system. If a player cheats this one time, they might not be invited back.

Presumably the relevance to the present moment is too obvious to even need mentioning. Although it is certainly not a game, a system of governance operates according to various sets of rules. In the case of a governing council, for example, there will likely be various rules covering who can speak when, under what conditions they can be interrupted, what proportion of votes need to be yes for something to happen, and so forth. Although such rules are typically rather abstruse, and not something that regular members might learn in detail, there can be tremendous power with having an especially in-depth knowledge of them, as it might allow for creating situations in which one can turn things to one’s advantage.⁴

The fact that rules end up being complex, even for something as simple as a voting body, points to the fact that coming up with a functional system that cannot be easily exploited is far from simple. This is especially true because the rules of a living system need to allow at least some flexibility for things to evolve and change over time. One needs rules that are complex enough to cover all eventualities, and yet clear enough that things won’t constantly get derailed by disputes about the rules themselves.⁵ Those kinds of difficulties are in some sense the hard cases. By contrast, the easy case is—or at least one might think it should be easy—is what happens when someone blatantly breaks a rule.

The trouble, however, is that most rules ultimately do not necessarily speak in full detail as to enforcement. Or rather, most systems of rules assume that “players” will abide by the rules, or if judged to have been in violation of a rule, to abide by that decision. One could of course add a rule that players must follow the rules, but that does not cover the eventuality that a player also breaks that rule!

In reality of course, when we are talking about life and not games, these expectations break down extremely frequently. People flagrantly break rules all the time. When caught breaking a rule and told to stop, many things are possible. They may give in and accept the consequences. They might dispute the charge. Or they might resist the demands of whoever is asking them to stop.

The fact that people do not always follow rules is of course the reason why the law is inextricably linked to violence. Although the vast majority of laws do involve the explicit application of violence in order to be effectuated, the effectiveness of law is inherently undergirded by the threat of violence. As Robert Cover wrote in Violence and the Word, “I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk.”⁶ Although one might choose to think of the state as a kind of solution to the problem of violence, and some kind of representation of the collective will, states need the tools of violence in order to assert their will.

In many cases, thankfully, this threat will only ever remain a threat. Stop what you are doing, and you may be able to avoid being arrested. Stop resisting, and you may be able to avoid being beaten. But in most cases, these deterrents only work because the threat is real. Ultimately the state is very much willing to use force to assert its will, up to and including lethal force. The fact that the use of force is intended to be legitimate, and in the service of peace, means it must be highly discriminable from the more arbitrary and capricious application of force. The limits of such force thus need to be both carefully delineated, but also arranged such that force will be reliably applied when needed.

At the highest levels of things are inevitably where the stakes are highest. At that level is where things are most unnerving, in part because of the stakes involved, but also because of the variety of forces that might be brought to bear. When one alone against the state in a matter of force, it is rather a foregone conclusion that the state will win. But when the stakes become the state itself, it is far less clear exactly what rules will get enforced or how. If someone does not follow my order, how will I compel them? Perhaps with the implicit or explicit threat or use of violence? But what if they were the instrument of violence that underlies the threat?

We are fortunate that things have largely remained peaceful in recent weeks, but of course that does not mean that force has not played a role. Indeed, I have been surprised by the lack of reporting on the details of how certain actions have been achieved. Take the example of gaining access to the Treasury’s payments system, for example. Although I imagine many systems are much more nebulous, this seems to have been a rare instance in which a huge amount of power was centralized in a tiny bureaucracy, in which only a few people had legitimate access. This is almost certainly at least partly wrong, but on some level I imagine this to be something like a computer system with a password. When asked for access, the person who had the authority to give it initially refused. In response, they were placed on leave, and the next person who had the power to grant access apparently complied.

What I haven’t seen reported on is what kinds of pressure were applied in these scenarios? In this particular case, the act of placing someone on leave may have been a strong enough signal that any other kind of resistance seemed futile, even if choosing to accept that decision ends up being little different from obeying the initial directive. At the opposite extreme, one can imagine someone resisting with all of their being, physically resisting whatever demands were made, up to and including the demand to stop fighting.⁷ Perhaps there was again a sense of foregone conclusion, perhaps because of knowledge of other ways the system could ultimately be accessed.

Somewhere in the middle, there is the implicit or explicit threat of violence. Hand over the password or we will arrest you. Let go of the keyboard or we will shoot you. Go on leave or we will make your life a living hell.⁸ Whether or not the authority to apply such violence is in any sense legitimate may be beside the point in the moment. And what of the person who will apply such force? Well, they too have a choice to make. They too may face consequences if they fail to follow orders. Ultimately, they too, are under the same threat of violence if they refuse to comply, and they too have the chance to resist that force, possibly at grave risk to themselves.

To take another example, on at least two such occasions recently, lawmakers have apparently attempted to enter the administrative offices of USAID and the EPA. In both cases, they were denied access by people in uniform. In at least one of the cases, it is unclear exactly what the affiliation of the person blocking the way was, or who they are accountable to.

Now, my understanding is that there is some debate as to whether Members of Congress have the right to enter the administrative office of various agencies. But, the fact remains that they were prevented from doing so not by a legal ruling, but by someone physically blocking their way. Did that person have the legitimate authority to prevent them from entering? Such questions are both unclear and irrelevant in such moments. In the moment, there is just the person physically controlling the space, and whatever authority they believe they are acting by.

Given how quickly things are developing, this might all be moot very soon. Importantly, however, the take away from this should ideally not be some kind of faux-Nietzschean conclusion, that since all laws are basically made up, that everything is just a matter of force. On one level that is of course correct, but it misses the fact that the power of any individual is determined in large part by the systems in which they operate, and the power of the system is in turn made up of individuals.

To simplify greatly, it also misses the existence of the metagame. Although it can be very tempting to think that the present moment is all that matters, and that a sufficiently momentous outcome may justify any action, this is almost always an unreasonably narrow and parochial view. Ultimately history continues, and there will be more iterations and layers of the game.

Although we often take it for granted, the construction of any kind of reasonably stable and functional set of governing rules is a remarkably hard thing to achieve. Even if imperfect, the existence of a system that allows for the possibility of change has the potential to adapt over time. But if broken, such a system isn’t likely to be easily repaired.