More Random Hypocrisy

In January I complained that Robert Kurzban’s book on hypocrisy focused most on an accident theory, namely:

The human mind consists of many specialized units. … While these modules sometimes work together seamlessly, they don’t always, resulting in impossibly contradictory beliefs.

Leo Katz has a new book that also explains legal hypocrisy as mainly accidental. He says that when we make decisions based on multiple considerations, each consideration is like a voter in our minds. So just as there can be voting cycles where A beats B beats C beats A, our minds can similarly have non-transitive preferences. As a result our choices depend on how they are framed. When the law does this, it leaves legal loopholes that clever lawyers can exploit.

Katz presents his theory as an alternative to:

The misguided idea … that we have loopholes because it is very hard to get laws right, … that is, … writing them in such a way that the law’s language exactly reflects its underlying purpose. (more)

Katz concludes that lawyers shouldn’t at all feel guilty about taking advantages of legal loopholes that appear to evade the law’s purpose, because, hey, there is no coherent purpose. He also excuses evading the laws of God as well as of men, as apparently one can’t expect God to be any more coherent than men, and he excuses trying to lie to associates indirectly rather than directly. It’s all good he says, no need to feel guilty.

Katz doesn’t even appear to consider the possibility I favor, that we are often designed to be hypocritical, to appear to support and follow social norms while actually evading them. Even so, Katz gives many nice examples of hypocrisy, legal and otherwise:

A lawyer tells a client who is on the verge of declaring bankruptcy, to move to a state with generous exemptions. … Another lawyer tells his client who is a visiting the US on a tourist visa but would very much like to make his home here, that he should try to qualify for political asylum. … Although lawyers give this kind of advice routinely, … they feel themselves to be taking advantage of a loophole and loopholes are in bad odor. …

[Consider] the way the devout treat religious commandments. They circumvent them with a brazenness that would put the most aggressively loophole-exploiting lawyer to shame. … To circumvent the prohibition against dueling, the Jesuits recommend contriving to create a situation of self-defense: … to circumvent God’s prohibition on operating a business or even performing such a minimal task as turning on a light on Shabbat, Jews hire a gentile to perform that task for them.

[When] religions prohibit lending money at interest, … followers usually feel free to circumvent the prohibition by … the sale of some valuable object by the debtor to the creditor, with an advance agreement that it be repurchased by him for a fixed higher price at some later date. … If the mismatch theory is right, what devout believers are doing involves nothing less than taking advantage of God’s failure to give a sufficiently airtight statement of his commandments. But that is clearly not what the devout see themselves as doing. …

Loophole exploitation also flourishes in another unexpected realm—dictatorial regimes. Subverting the ruler’s orders by seemingly obeying them but actually undermining them in subtle ways, though often in plain sight, is one the oldest forms of successful risk-minimizing resistance. In the early 1980’s Poles wanting to protest the government’s suppression of the dissident trade union Solidarnosz did so by taking a walk on the city’s main promenade timed to coincide exactly with the official news broadcast. They did so, moreover, wearing their hats backwards. … Since a dictatorship is not bound by the rule of law, why should it be possible to evade its laws in this way? And yet it is. …

Like everyone else, when I want to deceive someone, I find it much easier to mislead than to lie. … I just feel better when I lie circuitously rather than outright. … When I mislead, rather than lie, I am engaged in a legalistic-looking stratagem, but there is no law that I am anxiously trying to circumvent. (more)

FYI, here Katz lays out his accident theory in a journal article:

I do not think it an exaggeration to say that exploiting loopholes is most of what good lawyers spend most of their time doing. …

We engage in legalistic-looking stratagems even where there is no imperfectly drafted, loophole-riddled law anywhere in the vicinity. For instance, I prefer to dissemble by omission or evasion rather than an outright lie, even though the effect will be the same. I prefer to break up with my lover by provoking a quarrel that causes her to do the breaking up, even when it is perfectly transparent what I am doing. I might willfully blind myself to the suffering of a needy bystander rather than openly decline to help even when both he and I understand what I am doing …

What gives rise to the loophole here being exploited? The fact that the tax system appears to be trying to accommodate several different considerations. We want to tax the person who has earned the income, but there are a variety of criteria that go into determining who is the earner. With regard to investment income, those criteria will have to do with who has the legal authority to control what might be done with the asset being invested—who controls how it will be used, on what terms in may be lent out, at what price it might be sold, and so on. Of course, these criteria will often point in many different directions. Accommodating them all is what gives rise to the dependence on (seemingly) irrelevant alternatives, that is, loopholes. …

We do not ordinarily think of such a decision maker as being influenced by irrelevant alternatives, despite being quite obviously engaged in multi-criterion decision making. But that is because the utility function manages to hide that influence, not because it is absent. The reason there does not appear to be any such influence is that the function reflects a ranking of all possible outcomes. There are assumed not to be any extra outcomes out there whose intrusion might upset the ranking. Most of the time that we are making decisions, however, we are still in the process of constructing, by our choices, such a choice function. It is at this stage that the introduction or the withholding of alternatives might upset. …

Arrow’s theorem … tells us … that any decision-making rule that synthesizes multiple criteria into one final verdict is subject to something closely analogous to agenda manipulation. (more)