Gaming the System: A Theory of Institutional Manipulation

Abstract

Social life, especially political life, is mediated through rules. This dissertation addresses three puzzles raised by this fact. The first puzzle begins from the thought that rules seem to offer agents content-independent reasons to do as they direct even when the directive is a mistake. For example, the fact that something is required by law is supposed to give law-subjects a reason to do it independent of the merits of the act. When is this true? And how should rule directives feature in practical deliberations, especially when the rules seem to require acting in ways that an agent believes to be morally objectionable? I offer a practice-based account of reasoning with rules that grounds rule normativity in the importance of acting institutionally. I argue that agents frequently are right to follow mistaken rule directives because many things of value are only realizable by acting in social practices. These are, to use Alasdair MacIntyre’s terminology, “practice internal goods.” The more valuable the internal goods of a practice, the weightier the reason to follow the rules. The practice-based account’s ability to explain the bindingness of rules in some high-stakes situations, like consequential elections, while allowing for justified rule breaking in some lower-stakes situations, is a strength of the account compared to conventional views. The second puzzle begins where the first left off: if one finds oneself in a situation where one is obligated to follow the rules, is it good enough to game the system—i.e. to comply with the form of the rules while circumventing or subverting their force? The phenomenon of gaming the system is ubiquitous, but no general treatment of it exists outside the realm of sports. I develop and defend a conception of gaming the system as institutional manipulation. I argue that an institution is manipulated when its decision-making procedures are used in violation of the regulative ideals that govern the “reasoning” capacity of the institution. I identify three such ideals—efficiency, excellence, and fairness—and show how strategies that undermine them are unjust, unfair, and institutionally corrupting. Ambivalence toward gaming the system highlights a third puzzling feature of rules, which is that people often accept that exploiting loopholes is “dirty,” dishonorable, or unethical, yet they remain convinced loopholing is legitimate since it avoids rule breaking. For example, partisan gerrymandering is a widely condemned electoral strategy that is nonetheless treated as legitimate in American politics. I push back on some mistaken assumptions underlying this view. I argue that in addition to being unjust, partisan gerrymandering is delegitimating and sufficiently innovative gerrymandering is illegitimate. Both gerrymandering’s distinctive injustice and its delegitimating effects become clearer when gerrymandering is recognized as an instance of gaming the system. Evaluating gerrymandering through this lens reveals its manipulative and corrupting nature. This provides a more accessible, less contested account of the wrongs of gerrymandering than prominent alternatives on offer.