Law in Contemporary Society

If swindling is indistinguishable from selling, how can I rest assured that I’m not a swindler?

-- By GregJohnson, rewriting the original by JustinChung

Leff’s argument that swindles and sales are essentially indistinguishable is unsettling in that it removes a familiar means of justifying one’s actions while conducting transactions with others.

In the excerpts we read, Leff analyzes swindles and sales by cataloging the ways in which they are made possible by certain psychological needs and social roles. His conclusion is that they are fundamentally the same, arising from the same set of motivations and catalyzed by the same sorts of familiar situations.

By making these two categories of morally-conclusory evaluation unavailable, the theory makes it impossible to justify one’s actions on the basis merely of having followed the legitimate methods of selling, since these methods are not different from those of swindling. That is, one cannot be sure that one has arranged a deal (whether or not mutually advantageous) instead of having perpetrated a scam.

Instead, one is forced to evaluate the substance of the arrangement. Of course, other sound means of doing this do remain available, such that, without resorting to a false distinction between swindles and sales, one can identify and pursue morally-good transactions.

A: Being able to morally justify one’s actions is important for happiness.

Consider Robison, who isn’t particularly happy. He’s certainly jaded with the system that he works in, and he seems to have settled on doing as well as he can do given the way things are (and since he knows the ropes very well, this amounts to doing quite well). He has carved out and settled into his niche, as an oligopolist provider of criminal-defense creative problem solving.

But as a part of his work, he takes people’s savings from them. Is that a problem? Relying on a sale/swindle distinction, we might imagine Robinson saying to himself that this is fine: Sure, selling my defense services involves taking the guy’s house, but that’s a fair sale: it’s totally different than, say, loan sharking or a Ponzi scheme, which might take some other dumb fuck’s house—that would be a swindle!

With the recognition that there is no real category distinction between scams and sales, though, this intuition-based claim doesn’t work, potentially leaving Robinson unhappy in his role.

B: Without a categorical scam/sale distinction for evaluating transactions in terms of fairness, one is left to struggle for a more direct method of morally evaluating transactions.

When approaching real-world transactions with Leff’s ideas, one realizes that, without the intuitive scam/sale distinction, it can be very difficult to decide whether a transaction that one is pushing is morally appropriate to push and, if so, to provide a moral justification to oneself. For example, inability to comprehend one’s true motivations (if pursuing a deontological justification), cognitive biases (if pursuing a utilitarian justification), and similar problems make morally evaluating particular transactions very difficult compared to the you-know-it-when-you-see-it categorization—as scam or not—of which Leff’s theory deprives us.

Furthermore, the psychological analysis that Leff proffers implies that one of the most attractive aspects of swindles and sales is the feeling that one has come out on top of the other party. Assuming that this winning feeling has moral worth, then, it seems that some deals could be moral or not depending on how they are perceived! This makes objective evaluation of a transaction even more difficult.

Leff’s theory provides little if any framework for evaluating transactions morally. He stresses the mechanisms of pushing transactions in a way that very well illuminates how transactions occur but says little about whether they ought to. Yet this isn’t an unwarranted shortcoming. Social transactions are so interrelated that it would almost be foolish of him to attempt a robust account of their morality—it would amount to arguing for a full moral theory. Moreover, context is so important for morally evaluating a transaction that it is presumably impossible to evaluate one based on its terms alone without regard for the surrounding context within which it was arranged.

C. Recognizing that the scam/sale distinction is false, though unsettling, is valuable: it clears away an easy but fallacious categorization and thereby encourages finding a sound basis for morally evaluating transactions.

The moral value in revealing the fundamental sameness of scams and sales is that this makes obvious the need for more careful moral evaluation of transactions, moving away from the mechanisms of the transaction (which are fundamentally the same) and toward evaluating context.

For example, a negotiated transaction that results in one party giving his house to the other party in exchange for something of lesser value can be either lauded or condemned as a moral matter—it could be a sweetheart sale to a family member before moving cross-country, or it could be a loan-sharking scam where the seller has made clear he’ll gamble his proceeds.

Returning to our earlier example, one can imagine Robinson looking directly to the circumstances to justify his behavior without relying on the false categorization: Sure, selling my defense services involves taking the guy’s house, but I didn’t put the dumb fuck in the unfortunate position of being a defendant and, given the situation, the defendant truly has no better option than to higher me.


Leff’s approach is initially unsettling—it undercuts a common but erroneous assumption that makes evaluating the morality of deal making behavior straightforward, and it does so without providing an alternative means of doing such evaluation. Understandably, this can invoke resistance to the theory.

Leff doesn’t need to provide a replacement account of the morality of deal making for his insight to be useful, though; pointing out a widespread error suffices. That is, pointing out that the emperor has no clothes does a great deal of good by making clear the need for something to replace what wasn’t actually there in the first place.

  • This was one way of understanding the draft you began from, but it doesn't help much to render the thought comprehensible. Your argument is that because Leff has shown why it is hard to tell the suburbs of swindling and selling apart, because the similarity of functional constraints makes it hard for the law to attach the distinction to a particular action, this makes it hard to tell the activities apart morally. There is no reason whatever to believe this claim, and you are unable to complete the draft essentially taking the proposition back. By the end of the first graf, in fact, there's nothing left of the thesis. The remainder of the draft then functions primarily to explain why Justin himself decided to abandon the draft and start somewhere else.


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r3 - 08 Jan 2010 - 22:32:15 - IanSullivan
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