In Defense of Chicanery

July 10, 2011

A classic evil vs good argument posits that evil cannot exist without good people - because it needs them to generate the power to accomplish things. Nothing in this world comes for free, evil has to steal from the people who work and create things. Also, it has to be tolerated by the good.

On the flip side, one can argue that good cannot thrive without some chicanery. Conservative (=good?) people often cannot accomplish significant things, because they are too unwilling to take a risk; one sometimes needs an accomplished fraud to get people to believe that something can be done or a principle has been met when it has not, and so do the things that make good things happen. In many places we allow or ignore fraud; traders sell things they dont have (called 'selling short'), and buy even though they dont have the cash to buy (called 'buying on margin'); banks are allowed to lend money they dont have (called 'fractional reserve banking'). In daily life lying is often necessary3; an unemployed person will not be able to get a place to stay (even if they have the money to pay the rent) because many landlords want "evidence of employment" before they will take the risk of renting to a person they may have to evict shortly. Where our ever increasingly computerized and public society with credit bureaus and background checks makes it impossible to lie, we encounter some major injustices towards minorities. Freshly released prisoners, especially those on probation, find it hard to get employment anywhere due to now ubiquitous background checks, and so are often forced back into the prisons or into truly criminal enterprise. Far before modern technology, the need for chicanery has been recognized; in the human mating dance a woman will often 'test' a man to see if he is willing to break some rules to make interesting things happen. Of course, he should also be intelligent enough to avoid serious consequences!

This brings up another point. Risk takers are often willing to take on big challenges because the rewards are high, and they have information or talents not generally available to reduce risk. One of the most brain dead and counter productive laws we have is the criminalization of the use of inside information. This law basically rewards rent seeking - because it enables the most powerful players to extract the maximum from society which is generally left in the dark. This should be a matter of contract, with the prime actors able to sue people they trusted and did not measure up for breach of contract. Every leak (including those generated by early trading) should be celebrated as a victory of society over rent seeking behaviour. Even worse are licensing laws that make it a crime for people without a license to work in any field, especially when the law includes a bar on granting a license to people who have committed certain crimes.

The argument is not about the leaders or the powerful - because they are few. It is about the many people at the bottom of society and how they are treated. The argument is that society naturally tends to evolve to marginalize small risk-takers and extort and enslave small wealth producers, when it really should be encouraging small risk-takers and rewarding and freeing small wealth producers. The general drive in government to get lazy and not be required to prove intent, results in laws that penalize the weak for acts that would be judged non-criminal when done by the powerful. In the current recession, while the US focussed on big banks and big business and big labor, Germany spent a lot of time worrying about the 'Mittelstand' and how things and proposed laws affected them - and came out a whole lot better as a result.

Going back to the "good cannot thrive without some chicanery" argument, one of the clearest indicators of an unjust and oppressive society is the definition of smaller and smaller acts of chicanery as crime2, and resources available to prevent them through sheer force. Mob rule and extreme punishments are not a good sign. One of the most powerful (and attractive) leitmotifs of early American civilization was the federal judge who fought lynch mobs to preserve the rights (and life) of suspects. Chicanery levels out disparities within society, and it would be advisable to restrict the ability of any society to define more and more acts as crime and to severely restrict the resources to successfully prevent them. Criminals, especially the non-violent kind, are typically the risk-takers of society who deliberately or mistakenly over-stepped the lines drawn by society, and should be considered a resource that needs to be reintegrated with society1. "Zero-tolerance" systems and "throw away the key" attitudes are incredibly detrimental to justice - and to economic well being. While being lucky to have information technology blossom during his time, Clinton succeeded also because he did not take a zero tolerance attitude, unlike Bush senior or junior.

Our Constitution actually does a remarkably good job of defining such restrictions on government, but over time has been watered down by erroneous interpretations that granted the federal government more and more power, until we have a state today where it is essentially unlimited. The cycle of civilization being what it is, I think we in the US are condemned to a period of further decline, followed by a period of chaos where government cannot be looked upon as a provider, followed by militarization and ascent. The leader we chose is instructive here - Obama came from a broken family with a mother and grandmother supported by the government being the prime care providers - compare that with Merkel who came from the chaos of a dissolving East Germany. 2017-04-14 (Now we have Trump - who seems like the embodiment of chaos in government.)

Our Constitution even provides for consideration of the beneficial aspects of chicanery, by providing for the right to a jury and the possibility of jury nullification. Currently we make every effort to block this - maybe we should instead require courts to provide instruction to juries about their right to ignore the law and acquit when it would be just and right to do so? If a law is regularly flouted or nullified should it not automatically be abolished?

Finally, if you want a religious argument, a fundamental tenet of Christianity is the practice of forgiving. Christianity is a very successful religion. There are evolutionary model simulations in non-zero sum game theory that suggest the best personal strategy for a society are where individuals punish betrayals, but then forgive and re-engage offenders.

Last Updated March 3, 2018
See also:-
[1] Civil Disobedience as a Business Model - Rob Tracinski
[2] As Criminal Laws Proliferate, More Are Ensnared -WSJ
[3] The Invention of Lying
Title Changed 7-24-2011