Review: Greg Lastowka’s Virtual Justice

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3 Responses

  1. A.J. Sutter says:

    Apropos of Lastowka’s second argument and your response: So are you saying that games are therefore economic because the maximization of a social welfare function is involved? Classically, “social welfare” functions were simply aggregates of individual utility functions — is that what you mean? Or do you mean “social” as distinct from economic? And are you suggesting that law doesn’t have any relevance — or even perhaps any ontological status — in a non-utilitarian context?

    • Joshua Fairfield says:

      Greg is claiming that games are non-utilitarian, hedonic, and thus outside of ordinary life. In his view law carves out a sphere for games because they don’t fall within law’s ordinary ambit. A parallel he gives might be to the sphere of the family, in which law often defers to a range of norms.

      I am claiming that games are utilitarian, not in the sense of functionalism, but in the economic sense. Lastowka’s description of hedonism reads a lot like economic utilitarianism to me. So when I play a game, I am increasing my utility. I think some of the confusion comes from the two meanings of utilitarian: sometimes we mean functional and sometimes we mean that an activity increases a person’s social welfare — when used in the latter sense, an activity does not have to be functional in order to generate utility in the economic sense.

      So in my view, law defers to games not because they are hedonic, non-utilitarian, and thus outside of ordinary life, but because players have consented to alternative rules that govern the game and law respects that consent. Further, game-playing appears to me to be standard social welfare increasing behavior: I am happy to trade time and money for the game, and the maker of the game is happy to trade the game for my money. The place where the rubber may hit the road between Greg’s and my views is that sometimes players have not consented to certain “rules” of the game–rules, for example, that are set out in adhesion EULAs and are universally ignored by players. A good example would be the rule against sharing accounts in virtual worlds. Every game prohibits account sharing, and pretty much all players let someone else log into their account at least once in a while.

  2. A.J. Sutter says:

    Thanks for your reply. I think you’re probably right about the relationship between law and game rules. It was the use of the term “utility” that prompted my question, especially in the antepenultimate and penultimate sentences in the last paragraph of your post, from “Lastowka’s second argument …” to “… increase overall social utility by respectively creating and paying to play a game.”

    From your post and your reply to my question, you seem to be saying (i) you would agree that if games were not some sort of economic activity, then law would not apply, but (ii) games are some form of economic activity, because they increase “social utility” (and therefore law does apply to them). In your reply you also use the characterization “non-utilitarian, hedonic, and thus outside of ordinary life.” (I’m also not sure what you mean by the “functionalist” sense of utilitarianism — but I suppose that as a form of utilitarianism, it is quantitative, yes?)

    The doctrine of utilitarianism is about 200 years old. There were a couple of thousand years of qualitative, non-utilitarian thinking about ordinary life — and about the application of law to such life — that preceded it, and about 200 years of non-utilitarian thinking about ordinary life — and about the application of law to such life — concurrently with its existence. Non-utilitarians don’t believe that law does not exist. It is very curious, and I think very mistaken, to hold that law applies only to things that are measurable by utility, be it in an economic sense or the “functionalist” one you mention. Have I misunderstood you?