Judging by Consent

Written by David Lyford-Smith, Level 3

A philosophical grounding for what the judge program is and what it should be



Happy New Year! Traditionally, a lot of people take this time to reflect on their goals for the year ahead. In this article, I am going to talk philosophically about Magic judges and the judge program, and what my own beliefs about what our goals and characteristics should be.

What are judges for?

This seems like a pretty good place to start. Why do we have judges at all? 98% or more of Magic players play outside of the organised play program, without a judge present. Many organised play events such as FNM do not regularly have a judge present. And it’s been said that “if nobody called judges, we wouldn’t need them.” Faced with all that, why do we have judges? Certainly, at larger events there are logistical tasks that need doing, and rules information that needs disseminating; but do we need people to act as arbiters for disputes between players? And what should the goals of those people be?

When competition is involved, sometimes two players will not be able to work out a disagreement for themselves. They won’t agree on whether Jack took too long for his turn, or Viola played an extra land this turn, or how to fix that rules mistake they made three turns ago. A third party is needed that is independent to the players’ concerns and can make a fair judgment on how to get the game back underway. That third-party role is what judges are truly necessary for, and where I think the most philosophical guidance is needed about our role. Having a third person butt in to a two-party game is disruptive. Even when invited in, having a judge appear throws the course of the game that is played off. Even with the best of intentions, judges can attract poor feelings from the rest of the community because they make decisions that affect others, and not themselves.

Many players distrust or dislike judges. They see them as unnecessary, or as self-important, or as ineffective. Judge culture is strongly community-driven, which is great for judges, but not outward-facing enough to help bridge that gap with the rest of the Magic community.

So, what to do?

Robert Peel to the rescue

Disclaimer: Before beginning, I should note that in this article I talk quite a lot about the ideal of ethical policing and make a lot of comparisons between judges and police. I should note that I am supporting and comparing to the theoretical ideals of 19th-century British police, and not making any comparison with, support of, or criticism of any other policing forces in any other time or place.

Luckily, these issues are not being though about for the first time. In the 1820s, Robert Peel became Home Secretary of the UK, and created the country’s first centrally-organised permanent police, the Metropolitan Police. There were widespread concerns over this force being used as a political tool, or as an armed militia that would suppress the populace. Under Peel’s guidance, the joint commissioners of the newly-formed Met, Charles Rowan and Richard Mayne, laid out goals for all police, which were included in the instructions given to every new officer.

The Peelian Principles are based on the concept of ‘policing by consent’. Under this concept, police are able to act with power that is drawn from the consent of the general public, rather than because of state-invested power or from military force. In order for the force to keep its efficacy, then, it must keep public support and be seen as a benefit to society as a whole and not just the state.

The analogies with judging are clear to me. Judges should exist and should be welcome at events because the Magic community supports and agrees with their existence and their goals, and not just because of the powers that Wizards and the DCI invests them with. A loss of confidence in the right goals and right measures of the judge program is not simply a PR problem for judges, but an erosion of our ability to act as an effective organisation. Public perception should be a clear priority for judges. And that perception should be driven not by marketing spin, nor by bending to the sways of public opinion, but by building a representation for quality and impartiality through our individual and collective actions.

I have a lot more to say on this, which I’m going to do through examining each of Peel’s nine principles in turn. Each is phrased as a goal of the police.

To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment

The first goal is that the police exist to maintain order and prevent crime, and that the alternatives – extreme force and severe punishments – are not desirable.

Judges must exist to make events better for their players. “Keep it fair; keep it fun” has been said many times before, but it is still true. We could replace the need for judges and the Infraction Procedure Guide entirely by making the rule “Any rules mistake is a Game Loss”. But that creates a negative, aggressive playing atmosphere that is only appealing to a tiny number of people. Judges must instead seek to educate players about how to play correctly and fairly where appropriate (at Regular REL and outside of tournaments). They should also show restraint in creating and applying policy to ensure that the balance is on education and deterrence, and not only on punishment.

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.

This is the part of the principles that directly affects the need for them to exist in the first place – the ‘policing by consent’ concept.

To reiterate, judges’ additional powers and responsibilities come with a duty to work in the interests of the wider Magic community. The judge program’s collective abilities to intervene in games, award game losses, disqualify or even suspend players are only there so long as judges respect the needs of Magic players worldwide and act in their interests ahead of our own.

To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.

The police must foster an environment where the general public not only respect them as an organisation, but actively wish to assist in promoting law-abiding behaviour.

The judge program should seek to create and enforce policy in a way that encourages players to feel that abiding by that policy, and calling judges when the policy is breached, is fair and appropriate. If policy is created that people feel bad calling a judge to enforce, or one that they feel is unfair when it is used, then I believe there should be consideration of the place of that policy in the documentation.

More generally, many communities and cultures have a “don’t talk to the cops” policy, and for good reason. If the judge program is seen as seeking culprits over seeking truth and fairness, then the community will be reluctant to confide in or assist judges conducting investigations. Simply threatening penalties for non-cooperation will do nothing. Trust must be fostered so that the community wants to work with the judge program, and trusts that judges will do the right thing with any information shared with them.

To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.

It is the goal of the Met to avoid physical force, and public cooperation is an essential part in achieving that goal.

In Magic, we have penalties and disqualifications, and not physical force. But this links to the points I made under the previous heading: promoting trust in judges is far more effective, and morally preferable, to enforcing compliance through penalties.

To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.

This is my favourite of the original principles. It encapsulates the raison d’être of the ideal police force: to support and serve the law impartially, and to serve courteously and diligently the public’s needs and individuals’ safety, irrespective of their background.

In judging terms, there’s a lot to say here. Firstly, yes, judges should build public support, not by reacting to momentary pressures, but by showing an impartial and faithful support of the rules. Unlike the police, however, judges also have the ability to change the “laws” that we enforce. So, for judges, we must say instead that the duty is not only to follow the rules, but to work always to improve the quality and fairness of those rules.

The second element is to offer courteous, positive, and even support to all members of the Magic community, regardless of the many factors that might cause us to discriminate. Not only does this mean inclusivity in the diversity sense, but also not undue differential treatment due to experience or competitive success.

To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.

This is the direct statement of the Met’s goal to avoid violence wherever possible. Even today, most British police are unarmed; this is the reason why.

Now, as I said before, judges don’t (and shouldn’t) have physical force in their arsenal. While there are some underlying lessons in this principle that are relevant to judges, I think it’s best to move on and discuss those elsewhere.

To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

Here, the Peelian principles outlay an interesting concept: “the police are the public and the public are the police”. Conceptually, the point is this: to hold that the police are somehow distinct from ‘the general public’ is to drive a wedge of separation between the two that should not exist. Everyone has a civic duty to promote order and the rule of law; society provides the resources for some persons to only follow those duties; those persons are the police.

Likewise, judges are the Magic community and the Magic community are judges. Every single judge is also a Magic player and a member of the community. Portraying judges as separate from the wider community, or acting in a way that promotes that perception, is not only promoting an untruth. It is also driving a wedge between two groups that ought to foster cooperation with one another. As individuals, judges are more able to serve the needs of the community if the community sees them as fellow members. To achieve that, judges must not exclude themselves from the wider community, but instead seek to grow closer to it – by playing Magic with non-judges, by welcoming non-judge’s input, and by promoting others to do the same.

But equally, it’s important that we all, as members of the Magic community, have a role to play in promoting fair play, calling out poor conduct or cheating where we find it, and doing our part to create the tournament environment we wish to see.

To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.

This is a bit more archaically written that the other principles, and so could do with a clearer statement. In essence, it says that the job of the police is to do the job of the police, and not to act as an arm of the state or to act as judges, as gaolers, or as executioners.

For judges, there is no state – but there are tournament organisers. Most of the time, judges are being compensated for their time by a tournament organiser. By and large, the needs of the players and the objectives of the tournament organisers coincide, but there are business incentives that are separate from the concerns of the judge program. Judges must keep players’ experience and their concerns as their top priority.

There is also an analogy with Wizards of the Coast’s involvement with the judge program. Historically, Wizards has been an excellent hands-off manager of the judge program, with little involvement or overruling, and generous support of the judge community. However once more, should ever a conflict of interest exist, the judge program must remember to respect the position of Wizards as the custodians and creators of Magic, but to serve the playing community first and foremost.

To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

This is a vitally important distinction – successful policing is measured in low crime rates and reduction in fear, and not in the number of arrests made or the number of police actions taken.

For judges, the same is true absolutely. Speaking of cheating as one example, the goal should not be measured in the number of disqualifications processed. This is only a recipe for punishing the innocent, and for mishandling the true causes of cheating. True success in deterring cheaters is measured in the degree to which the community fears cheating and believes it to be rife. Protection of the innocent from cheaters takes priorities over punishing the cheaters. Therefore, judges should seek to combat cheating by creating culture and policy that makes cheating unattractive; by fostering trusting relationships with players that allow investigations into cheating to be accurate; and by building a reputation for efficiency and efficacy that discourages would-be cheaters from even attempting to cheat.

Across all other areas of judging endeavour, the same logic applies. The number of penalties given for some specific issue, such as Slow Play, is a poor measure of success: a better one is the community’s assessment that Slow Play is rare and well-handled. This is a particularly good area to talk about because most members of the Magic community I talk to feel that Slow Play is a significant area where judges could do better, and I agree.

In summary

The Peelian Principles underlie a philosophical ideal of what a perfect police force should be. Below, I’ve written up a parallel nine principles for judging, that describe my view for the philosophical basis of a perfect judge program. I’m not saying that what we have today is completely separated from these principles – but there are behaviours and failings out there today that in this light we must recognise and must improve.

If you are reading this, I hope you agree with me. Whether you are a judge or not, I look forward to working with me on making that judge program I envisage into a reality in 2019 and beyond.

Here, then, are what I’ll call the Principles of Judging. The goals of the judge program are:

  1. To promote fair and fun play through education and through example
  2. To seek always fair application of the rules
  3. To work for the good of the Magic community and to seek their respect and approval
  4. To craft policy which reflects the community’s sense of what is fair and appropriate
  5. To build trust that cooperation with judges is desirable and will lead to fair outcomes
  6. To show impartiality in the application of the rules
  7. To recognise always that judges are part of the Magic community, not apart from it
  8. To act in the interests of Magic players, independent of influence from other parties
  9. To measure success always by public satisfaction, and not by volume of enforcement

David Lyford-Smith

Level 3 Judge, UK