Allowed Lies

The law should be our servant, not our master; we can and should use law to get what we jointly want.  We now empower the legal system to punish folks for “fraud” in misrepresenting themselves in contracts, and for certain other sorts of lies known as “slander” and “libel.”  Which makes sense because we think such lies hurt us overall. But beyond these cases the legal system isn’t much empowered to punish lies.  Why?

Now I’m well aware there are many areas in which it is not very clear what exactly is a lie; for such topics legal costs and error rates would just be too high to tolerate.  And there are also many other areas, such as in flattery, where we are well aware that most folks lie most of the time; apparently we like it that way.  But there are other areas where people seem to insist quite firmly that they do not want to hear lies, where the consequences of believing lies are substantial, where the costs to reliably determine if a lie happened could be low, and yet where lies are legal.

For example, consider the case where a married man lies about whether he is married when trying to attract a single woman into a relationship.  Single women typically insist they do not want such lies, and it would be easy to determine if the man is in fact married.  So why do we not use the legal system to discourage such lies?

The puzzle goes even deeper than current law, since we could voluntarily choose to bond ourselves to a private agency that would keep some deposited cash if we were ever caught in a lie.  Folks who bonded themselves in this way should be more believable, but almost no one does this.

Perhaps if just a few folks bonded themselves they’d seem too weird, and perhaps public law is just too slow and stupid to find this opportunity to help us.  But I can’t help but suspect that quite a few folks just don’t think it is that bad if married men lie to seduce single women.

What other easy-to-punish consequential lies do we tolerate, and why?

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  • These days, those days

    Could there be this kind of law against lying? One problem might be that the liar would just lie about having told the lie. He could just say, “Hey, you obviously just remember wrong. I never said I wasn’t married. And for the sake of argument, even if I did say that, how are you gonna prove it to the courts? Your word against mine.”

    Another problem is how far are you willing to say that lies are too harmful to be tolerated? Seducing a woman by claiming to be single may be bad enough, but how about lying about how you were convicted of burglary ten years ago (also to a new girlfriend)? Falsely claiming to have been on the football team in college? Buying her a $200 diamond and claiming you paid $1000? Is everyone going to agree about which of these are bad enough to be grounds for a lawsuit?

    And from there we get down to the lies that are too ridiculously petty to even worry about on a casual level, but are still clearly unethical? Suppose I eat some leftover food belonging to a roommate and lie about it? Suppose I promise to water someone’s lawn while they’re on vacation with no intention of doing so, and when they come back and are none the wiser, I take credit for it? The fact that people will find out you’re a pathetic, pathological, petty liar is all the punishment we need. Just ask the Boy Who Cried Wolf.

    • We have laws against theft but don’t usually bother to enforce them when you steal a pen from some counter. Laws against lies could similarly be ignored when too small to bother.

  • q

    > Single women typically insist they do not want such lies, and it would be easy to determine if the man is in fact married. So why do we not use the legal system to discourage such lies?

    We do to a limited extent. We use the legal system to prevent married people from marrying another person.

    I bet there are agencies that would perform the equivalent of ‘title insurance’ in this case. Certainly some dating agencies do require signed statements that people aren’t married and some may in fact do some detective work.

    • We do to a limited extent. We use the legal system to prevent married people from marrying another person.

      I agree. And on top of that, has Robin_Hanson ever talked to someone who’s been divorced? The legal system, via divorce court, will serious f— you over, and you’re likely to be divorced if caught cheating.

    • What fraction of women who find their man is married are willing to suffer the embarrassment or hostility of telling his wife? Seems a high cost to many.

  • Normally enforcement problems would be far too high relative to social benefits to bother with this.

    Are married men lying about their marital status common? I’ve never heard complaints about that, and I don’t see why they would need to lie, as there are countless single women which don’t mind that a guy is married. Social benefits from enforcing that are not that obvious.

    A better example of enforcement of honesty would be obligatory STD checks every year for everyone, and not having a recent check, not disclosing positive the results to your partner, or lying about them automatically making sex count as rape, no matter if it resulted in infection or not.

    There would be a lot of social benefit in it, enforcement would be simple, and I can see no harm in it, other than cost of STD checks, but with economies of scale I don’t expect per capita cost to be that high.

    • Buck Farmer

      STD negative certificates seem like a great product to offer in niche markets (young gay men jump to mind).

      I think that it would take a period of private voluntary certification before this became standard enough to be enacted in law as relating to the definition of rape.

      • British clinics don’t bother providing you with paper “certificates”, they just tell you your results.

  • The puzzle goes even deeper than current law, since we could voluntarily choose to bond ourselves to a private agency that would keep some deposited cash if we were ever caught in a lie.

    Sounds like a great idea to me.

    • Ditto. I would definitely be an early adopter of this. However, it would have to have a) a more refined definition of “lying” and b) a trustworthy, efficient arbitration process.

      On a), I think the target should not be “lying” as such, but the more specific concept of “deception”, defined as “A deceives B when A deliberately causes B to believe something that A claims to believe when A does not believe it”.

      This would exclude situations like, “How are you?” “Fine.” “Hah! I found out your cousin died two days ago! You’re *not* fine. Pay up!” This would not count as deception, since people do not expect the response to “How are you?” to be very accurate, so any small-talk answer would not be “deliberately causing someone to have a false belief”.

      Also, a) would exclude e.g. renting a Ferrari and driving around like you own it. Though this does cause others to believe you’re wealthy, and it’s deliberate, it would not count as deception, because people already discount for the possibility that others are already engaging in costly signaling, knowing that sometime’s they’ll be off.

  • some chick

    I can’t resist the joke… married men have *already* bonded themselves to some private party that will keep some deposited cash if they’re caught in that sort of lie.

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  • komponisto

    Some in our society believe that this is and should remain a “free country”, i.e. as few laws should be made as possible. They may feel that societal disapproval of such behaviors is adequately expressed by unofficial means. Few after all would admire or want to associate with people with a reputation for lying.

    • Jeff

      Societal disapproval seems far less consistent than law. “Few … would admire or want to associate with people with a reputation for lying” is exactly right, but glosses over that people with a reputation for lying is an overlapping but distinct set from people who lie regularly. Some people get the rep from a few poorly placed lies, some never get it despite lying all the time. Making it formal avoids the Tyranny of Structurelessness — it makes it more consistent and then we can argue about how to make it fair because we can actually tweak the outcomes.

      • komponisto

        There may be benefits to a particular proposed law, but they may be outweighed by the benefits of adhering to a meta-law of the form “keep laws to a minimum”.

  • Nithya

    Civil legal systems primarily exist to facilitate private remedies. Most legal systems are also set up to externalise costs, financial or otherwise, to the litigant. Therefore, in most cases of lying, seeking a legal remedy is simply uncommercial. Where the lie (in the private sphere) is big enough and has caused harm that is worth compensating, the option of commencing legal proceedings already exists.

  • Peter Twieg

    I think there are two main motivations for allowing “consequential lies”:

    a) “Everyone does it” – we see this excuse made for politicians all the time, that if they didn’t lie in order to rally the base or capture swing voters than they’d be at a significant competitive advantage. Arguably this could just be seen as an inefficient equilibrium – the solution is to try to figure out a way for unilateral lying to not be advantageous for either party.

    b) “There’s no legitimate interest in this information” – people have notions of what is fair or unfair to judge others on, and we tend to not find it blameworthy if people lie about things which we deem irrelevant but acknowledge to be important to what others care about. For example, most people wouldn’t blame a woman living in a conservative society for lying about having been raped in order to preserve her marital prospects, because they find a lexicographic preference for virgins to be more problematic than the lies which this preference might inspire. Most people would rather argue that their conception of “legitimate interests” is morally necessary rather than agree to a pluralistic notion that no one should lie, period, regardless of how poorly individuals will react to the truth.

    • Peter Twieg

      Oh, also, there was a neat Volokh Conspiracy post on a seemingly-related issue a while back, regarding fraudulent statements of love:

      • Very related post, but his only counter argument seems to be just “imagine what would happen”.

  • For a misrepresentation to amount to a cause of action, there has to be reasonable reliance.

    If it is, as you say, quite easy for a women to find out whether a man is married, the law will find that it was unreasonable for the women to rely upon the man’s claim without at least checking it out. No reasonable reliance, no lawsuit for misrepresentation.

    • You meet a nice man, and talk for a while. At that moment, what is the cost in time and money and signaling to find out if he is married? It would send a pretty bad signal if you demanded his social security number so you could call always-on-call your private eye, right?

  • In case anybody is tired of discussing gender relations issues and would prefer something interesting, like finance, how about the question of whether naked short selling and fractional reserves are fraudulent? In my view, the answer is “obviously no” in both cases. But a lot of people are dead set on “yes”. Moving on to less controversial matters, how about Holocaust (and/or Armenian genocide, anthropocentric global warming, vaccine & AIDS) denial? I have always said it should be legal to tell even malicious lies because of the dangers of letting the government be arbiter of truth. That’s a different matter from voluntarily putting up a bond, which I think a good idea.

    • TGGP: I agree with you that naked short selling, when the buyer *knows* they’re buying from a naked short seller, should not be illegal as such. However, part of the recent controversy (that Megan_McArdle doesn’t mention) is that there have been numerous cases where people have been cheated: the brokerage will tell them they can’t find the shares and “offer” to reverse the trade. And other times, when time comes to vote shares, there are more shares claiming a vote than there are outstanding shares.

      I can’t find the links right now, but the point is, *those* people would have a legitimate complaint about NSS, if found to be true.

  • Aaron

    What other easy-to-punish consequential lies do we tolerate, and why?

    How about lying on résumé’s? Seems like bonding here could be useful. Or at least demonstrate how important résumé’s really are, if bonding doesn’t take off in this area.

  • RobQ

    My legislature has more important things that they aren’t doing. Likewise law enforcement and the courts. You’re just going to have to keep sorting this one out on your own.

  • TruePath

    Your example of married men lying to sleep with single women isn’t a very good one because the very people who would benefit from increased consequences are the men’s spouses who would also be harmed by the confiscation of the money. The bonding would do absolutely nothing for women who might get lied to since if you can disguise your marital status you can probably just pretend to have a bond as well.

    However, I think the general answer to your question is that not bonding oneself to do the right thing is a form of signaling. After all the men who were the most trustworthy and most trusted by their wives/peers wouldn’t see any reason to bother depositing money. Thus bonding oneself sends the signal that you aren’t one of these very trustworthy people. Also people may think of it as an indication that you don’t think moral motivations would be enough to deter you from this bad conduct.

    • Buck Farmer

      With a shift in standards this would not be an issue.

      The example that jumps to my mind is life insurance. Originally, this was seen as ‘betting on your own death’ and it didn’t take off as a product until it was re-branded as the behavior of a responsible individual (usually a man) taking care of his family.

    • Jay

      I think signaling on the woman’s part is also a factor. She probably wants to paint the encounter as a rare, spontaneous fling. Checking references (or other evidence of premeditation) might make her look sluttish. Of course, it could be even worse if there was a log of how many references she’d checked.

  • Count me out: I think the “slander” and “libel” laws are awful.

  • In sales transactions there are legal and illegal lies.

    Examples of legal lies:

    “That’s my final offer” (when prepared to make another offer)
    “I’m under no pressure to sell” (when under extreme pressure to sell)

    Illegal lies:
    “This car has never been in an accident” (when it has a bent frame from a serious collision)

    “There are no structural problems with this house” (when it is built on a swamp and is slowly collapsing)

    I beleve we tolerate the legal lies because knowing the other person’s bargaining position is seen as an unfair advantage.

    Most people don’t feel it is unfair to know the condition of what is being sold.

  • Here is another lie, this one told by both genders: “‘Til Death Do Us Part”.

    Actually since 66-75% of divorces are now filed by women, it seems one gender is a little more coy at least with this particular lie than the other.

    • I know how to turn those lies into truth … but it involves hitmen :-/

  • Vladimir

    Robin Hanson:

    For example, consider the case where a married man lies about whether he is married when trying to attract a single woman into a relationship. Single women typically insist they do not want such lies, and it would be easy to determine if the man is in fact married. So why do we not use the legal system to discourage such lies?

    Such lies did in fact incur a variety of civil and criminal liabilities in the past, both under traditional common law and various statues, until roughly two generations ago. Wrongful seduction and breach of marriage promise used to be uncontroversial common law torts, and many common law jurisdictions also had the crime of seduction (with varying definitions) on their books. As recently as 1938, Frank Sinatra was famously arrested in New Jersey for criminal seduction of a woman of good repute. If I remember correctly, the charges were changed to adultery and then dropped when it turned out that she was in fact married. (I don’t know if this means that the local authorities had less of a problem with adultery than deceitful seduction of an unmarried girl, but in any case, the latter was a criminal offense.)

    All these laws were gradually abandoned in practice and abolished during the 20th century. For reasons that would be interesting to discuss, but alas too complicated for a blog comment, our civilization has gradually drifted towards the present strong ideological consensus that the government has no rightful authority to regulate or arbitrate non-commercial consensual sexual acts between persons above the legal age of consent, and the legal trends have followed these broader social ones. Thus, I’d say that this area is rather special because of its ideological weight, and not a good source of examples for your general points about legal toleration of lies.

    • This history is fascinating, and contains important clues I think to this puzzle.

  • Psychohistorian

    Thirty-one comments and no one mentions the First Amendment. Legal scholars we are not. There is an extremely strong presumption on the part of free speech, which can only be overcome by a “damn good reason.” Fraud actually theoretically covers the lies that RH is talking about, but the law doesn’t recognize such deception as causing damages, and the law does recognize that such claims would be incredibly hard to prove and allowing them would trigger a deluge of frivolous lawsuits.

    The law does not recognize voluntary exchanges of gifts or “services” in romantic relationships as “damages.” If it did, pretty much everyone could file a lawsuit for their time and money immediately following a breakup. This would be nightmarish, because no one can be trusted and there’s almost never clear hard evidence. And proving the actual value of damages is nigh impossible.

    More generally, proving that someone is lying and then proving that this lie caused damages is generally far more expensive than the lie itself. Moreover, in many cases, allowing people to sue or prosecute on such grounds would net a whole lot of innocent people being sued by the greedy or malicious, which is not a desirable outcome. If lies were easily detectable or provable, the legal system could effectively discourage them, but it probably wouldn’t even need to.

    On the bond bit: if I’m an honest person, I’ll pay out of the bond if you catch me lying, so I probably won’t lie. If I’m a dishonest person, I’m not going to admit that I lied, so you’d have to sue me, which could be quite difficult, and you’d have to have a lot of money at stake to make it worth having a lawyer. It’s not a huge help reputationally, since the former could see a lot of frivolous lawsuits and the latter could see a lot of legitimate ones, and an outside observer would have great difficulty telling the difference. In other words, if people put up bonds about their honesty, you could trust people you think are honest, and you couldn’t trust people you think are dishonest. This is not much of a step forward.

  • Eneasz

    Why the focus on such inconsequential legal lies? Why not look at the really important ones?

    There are lies that are easily and soundly disproved being spread constantly, lies that do a great deal of damage to all of society. “Death panels”, for one. Not only are these not punished, in certain places people are rewarded (financially, politically, and socially) for how well they can spout outlandish lies that significantly damage the majority of the population (Glen Beck comes to mind).

    I don’t want the government mandating The Truth either, but when a lie is damaging, provable, obvious, and constantly repeated… doesn’t society have a vested interest in stopping it?

  • I wouldn’t do the self-bonding for all lies, because I think I’m perfectly justified in some of the lies I tell–indeed, some of them I feel obligated to tell.

    To run with your example a little more, would I self-bond against lying about my relationship status or achievements in order to attract women? Such self-bonding would only work if it were hard to lie about having done it, perhaps the bonding agency would design a hard-to-counterfit certificate. But as long as few people were doing this, no women would ever demand to see the certificate. Making a point to show it to women at some point in a courtship wouldn’t work well, because it would either show too much interest too early or be a pointless complication once things were proceeding along nicely. If it were something I reserved for when my honesty is questioned, it would likely in practice be less effective than an eloquent verbal reassurance, or some more direct demonstration that what I had said was true. Announcing the bond to my entire extended social circle, regardless of romantic interest, would probably be the best of a set of bad options, but it wouldn’t help with women I’ve just met, and wouldn’t be especially useful, because social networks already have informal mechanisms for punishing liars.

    In short, I don’t think you can reduce the reasons for not doing this to simple issues of “weirdness.”

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  • Kris Chickey

    Perhaps social networking sites may provide a good venue for presenting this marital status in an easily accepted manner. It seems at least possible that the participant could allow the site to access court records (for nominal fees – passed through the site).

    One might even be lead to believe that sites which tout their “deep understanding” of human motivations ought to be able to offer a degree of certainty regarding submitted information for even unverifed participants. (I suspect only okcupid would be willing to place a number on the subject’s truthfulness at the current time.)