Thursday, June 09, 2005

Lessons from the Arena, Part II

I'd like to spend today expanding upon a point I raised over at TIA last week. In that post, I lamented the liberal tendency to get distracted by the moral character of the opposition, while ignoring the systemic nature of their nefarious activity.
But, too often, I think, the accusations [of wrongdoing] revolve around the bad character of the involved actors. Karl Rove is accused of playing dirty (and he does). Katherine Harris illegitimately ended the Florida recounts (agreed). The Swift Boat Veterans were a bunch of stinking liars (testify, my brother!). I could go on (and on, and on...).

However, there comes a point in time went you actually want to do something about it. Demonizing the opposition may serve to solidify your coalition, but it persuades few new voters to take your side -- even when the accusations are undeniably true. It just doesn't work that way.

Rove may be an unscrupulous character, but he is so only because of the nature of the game. If the game were different, he would be different or he would be replaced by someone who was. It's that simple.
So, to my eyes, the applied solutions should be systemic ones. If we don't like the way the game is being played, we need to change the environment in which the game occurs. Simple.

But this does require abandoning certain fantasies of retribution, something many liberals seem unable to accept. And, in truth, who amongst us hasn't let a smile creep across their face as they imagined an indictment with Karl Rove's name on it? Be that as it may, it's never going to happen and we had better spend our energy elsewhere. Still, some can't let go.

Why is that?

I believe this stems from a somewhat naïve understanding of what rules, in practice, really are. Many of us can recall our days on the playground where we concocted byzantine regulations to govern that day's diversion. Similarly, we can recall the outrage we felt when someone chose to go outside the rules. We understood the order and fairness that these rules brought to our games and condemned those who devalued these social amenities with their lawlessness.

Most of us internalized these lessons and continue to apply them in our daily lives. We happily exist in a heavily regulated environment with laws, social etiquette, ethical guidelines, and tradition defining the limits of our behavior. We may not always be able to comply completely with the rules as we understand them, but we try the best we can and accept the repercussions for failure. On a certain level, we understand that it's best for all of us if rules are followed.

But, what are these rules?

Let's talk about the NBA again. In my last post on this topic, I acknowledged that "cheating" is rampant in professional basketball. Also, there is a considerable amount of play that many would consider to be unethical or, at bare minimum, a demonstration of poor sportsmanship. Whether we are talking about an elbow thrown when the ref isn't looking or a hard foul landed to prevent an easy layup, there is a fair amount of on-court behavior that is explicitly or implicitly prohibited by the rulebook. It rarely gets completely out of hand or interferes with legal gameplay enough to upset the ultimate outcome. But, it certainly gives people ammunition for their complaints.

There is, though, an old saying that I think is apropos to this situation: if a tree falls in the forest and no one was there to hear it, does it make a sound? Or, if you throw an elbow and the ref doesn't see it, is it still a foul? Of course, there are a lot of philosophical approaches to answering such a question, but in the real world there is only one answer: no.

There are the rules that exist in the rulebook and there are the infractions that the refs are actually able to call. Of these two, only the second set matters. You might get a bad reputation if you habitually attempt to evade the rulebook rules, which might lead to a heavier focus on your conduct. However, this doesn't change my contention in the slightest. It doesn't matter what you do on the court -- if the ref doesn't call it, it's legal.

A friend of mine who had just completed a contract law class shocked me one day with a declaration that contracts don't really exist. He went on to explain that contracts are only binding if (a) both parties perceive the benefits of compliance, or (b) a practical enforcement mechanism exists. For example, if a small technology company contracts with a powerful multinational corporation, the details of the contract are whatever the multinational says they are regardless of what is written on paper. If the multinational decides to default on its obligations, it will unless there is a realistic threat that their contractual partner will be able to enforce the contract through litigation. Since economic realities usually foreclose this possibility, the contract is binding only as far as the multinational allows it to be. The contract might exist in a theoretical universe, but it fails to materialize in the real world.

This is something that we all have to come to grips with. People are only bound by the letter of the law, not the spirit. Moreover, people are only bound by the laws that are likely to be enforced. If you can break the law without being noticed, your activity was, in effect, legal.

Was the election stolen in 2000? Were laws broken in Ohio this last year? From a theoretical perspective, the answer is probably yes. But, from a practical standpoint, the answer is no. Or, perhaps more accurately, it doesn't matter because if laws were broken, they were broken in such a way that the refs aren't going to call it. And if the refs can't or won't call a foul, there's no point wasting energy complaining about it.

Actually, I'm being a little bit glib here. Of course complaining helps. It's commonly referred to as "working the refs" and the right has been applying this principle to the media for the last 30 years. But the point is that it only gets you so far. If you want real change you have to focus on system dynamics.

And this doesn't just mean enacting new laws. You have to make sure that a practical enforcement mechanism exists, otherwise the law is hollow

What you don't want to do is to spend time hoping that those who have misbehaved will receive their comeuppance. They threw elbows and got away with it. The play is over and we need to be present for the next one. If we don't like playing games with thrown elbows, we need to create a system that is capable of effectively policing that behavior. Right now, throwing elbows is effectively legal. So, we can throw our own elbows or we can change the rules so they can't be thrown so easily in the future.

However, complaints do nothing more than highlight our regulatory naïveté. The other side has figured out which rules matter. We need to do the same.
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