Critique: Rule-Breaking from Creativity to Illegality



I found this essay on Facebook, and found the title sufficiently interesting (and the content refreshingly short) enough to read. I also found myself identifying a couple of flaws/fallacies and disagreeing with a couple of the authors’ “trans-disciplinary” arguments. Fair warning: I’m about to head off into Philosophical Geek Land. You also might need to take the time to read the referenced article to understand what I'm griping about and to see whether my gripes are reasonable.


To save the reader of this blog a little time and to clarify the fundamental argument with the paper, I will attempt to summarize the authors’ thesis and my disagreement(s) with it. The authors equate creativity—specifically paradigm-breaking ideas or ideas that fundamentally change how human beings interact with or perceive the world around them—with “breaking the rules,” in effect a form of illegality. They then argue that the difference between creativity and illegality depends on the long-term end results (positive/negative) and the legitimacy of the laws/rules being broken.


I can agree with their thesis in the specific instance they mentioned—paradigm shifting. Thomas Kuhn’s The Structure of Scientific Revolutions offers an excellent history of scientific paradigms and how they change (for example, the unchanging Earth vs. plate tectonics or a Newtonian vs. Einsteinian understanding of physics). In the case of scientific paradigms, the creativity of Einstein had to overcome established systems, beliefs, and interests; all of these might be treated as social conventions or “rules,” but are not precisely laws. Indeed, Einstein was not attempting to undo Newton’s theories, but to amplify them and give them a slightly different interpretation. In the long run, his theories were validated by empirical evidence, experimentation, new technology, and social acceptance of the new theory. Kuhn’s theories on scientific revolutions constitute of culture shifts and maybe disregarding the social currency or ascendancy of particular theories, but that’s quite a stretch from “illegality,” unless one considers E=mcˆ2 to violate the laws of nature. Einstein and his later adherents were certainly not breaking any social, civil, or criminal laws in presenting a new view of reality.




That said, my arguments with their thesis are as follows:


1. Creativity is not always a case of “breaking the rules.” Creativity in the arts can be unique without breaking any fundamental rules. Indeed, many art forms have conventions (vanishing points in the visual arts, meters or rhyme schemes in poetry). One can be “creative” in those situations without breaking rules or causing harm to others.


2. The authors blur the functional differences between civic or criminal laws and social conventions or rules. For one thing, civic laws are concerned with preventing and punishing harm to others or society. Social guidelines (mores, manners) serve approximately the same purpose, but usually do not carry legal or criminal penalties if you break them.


3. The authors have a really far-out definition of what it means to be a “creative” entrepreneur: “The innovator entrepreneur combines available resources in a new way that challenges conventions of human behavior, even imposing conceptual and empirical challenges for commercial laws.” I’ll buy the part about combining resources in a new way; but to say that every innovator is challenging human conventions or creating challenges for commercial laws is quite a stretch. You might make a case for automobiles, telephones, or computers, which fundamentally changed our society, but would you describe canned tuna, office staples, or electric fans as creating “conceptual and empirical challenges for commercial laws?”

4. The authors head into shaky territory when they start to take on “perverse legality, positive illegality, and perverse creativity.” Perverse legality they describe as a situation like “the whole Nazi project” (a violation of Godwin’s Law right there) “protected actions that were later recognized as social perversions,” the end result being that behaving morally/creatively in that society would constitute breaking the laws of that society.

5. The authors posit another scenario "in which illegality does not imply social damage, [but] it is also possible to find a scenario in which creativity is oriented to cause social damage." Their specific example is when a nation-state's legal mechanisms are co-opted by some alleged criminal enterprise, ostensibly like a drug cartel taking over a nation in South America or the kleptocracy that gradually took over post-Soviet Russia. I will return to this issue in my own conclusion.

6. They create some unnecessary acronyms and then make the situation worse by mistyping or not explaining one of those acronyms. They have “one mind that is breaking a rule (MBR),” “minds that are evaluating that rule breaking process (MVRB),” and “informal rule (IR).” What, then, is MVBRP? I wouldn’t make much of a big deal about this, except that they used MVBRP twice, when presumably they meant MVRB. This is not a logical argument on my part, I admit, merely an aesthetic one.


7. Where I parted company from the authors almost completely is regarding their statement that “Today, almost no one would consider revolutionists of centuries XVIII and XIX as criminals.” If they mean the leaders of the American Revolution, I would agree. If they mean the leaders of the French Revolution, I would take exception on the following grounds:


a. They utterly destroyed the state, leading to such instability that France has not had an enduring republic since then (they are now on their Fifth Republic). And, in fact, the Revolution led directly to the dismantling (and killing) of nearly all legitimate authority, including the King, Church, aristocracy, civil servants, and eventually the revolutionists themselves.

b. The power vacuum and bloody chaos thrown up by the French Revolution made the ground fertile for a Bonaparte to seize control. The end result of his rule was 20 years of war that tore apart Europe and imposed “liberty, equality, fraternity” at the point of the bayonet.

c. The fervent atheism of the Revolution undermined Christianity, one of the fundamental strengths of European culture, for the last two centuries.

d. Note: Lest anyone think I am completely insensitive to the historical plight of the French peasantry under the Ancien Régime, I am not. I am suggesting that there were other ways the grievances of the people could have been redressed that need not have demolished French society or resulted in guillotines on the Champs-Élysées. I am also suggesting that the King, Church, and aristocracy might have learned the British lessons about accommodating the will and needs of the people before the situation became that desperate.


8. In their second "Conclusions and Explorative Issues," the authors state, "Since the psychological rule-breaking process underlying illegality and creativity is the same, it is therefore needed to pay attention to other criteria when defining both illegality and creativity." I would submit, based on my points 1-3 above, that the authors have not made their case on this argument conclusive.

9. In the authors' point 9, they state that "The judicial branch is also considered a moral tribunal because this branch sometimes creates laws through production of jurisprudence." This might, in fact, be the case, but that was not (in my view) the intention of the American Founders, nor is it necessarily a given in most justice systems: courts of law are there to adjudicate situations where the law is unclear; not to write new law, as has become the custom in American federal courts in the XXth and XXIst centuries. Be that as it may, their point is regrettably true, as moral and legal matters are now settled in the courts rather than in the legislatures, where the true will of the voters might better be expressed.

10. In the authors' point 10, they state that "Pointing out that both criminals and creative people have a similar psychological process does not mean that criminals should be rewarded or that creative people should be punished." Good.

11. The authors conclude point 11 with "The longer of the time-scale use to evalue the rule-breaking process, the most accurate that evaluation will be." This seems to be saying that, "the longer your historical perspective, the more likely it is that your judgment of whether someone was creative or merely a law-breaker is correct. Science fiction writer Larry Niven would put this more succinctly: "Hindsight is 20/20."

12. The authors' point 12 explains how law-breaking is defined based on the legitimacy and correctness of the laws.

13. The authors' final point 13 states that "simulation and prospective analysis tools are required when evaluated the social effects of a law or an informal institution." I would restate this as "You need more than the laws themselves to determine whether they are both rightly executed and morally good." I would tend to agree.

But, but, but...I kept turning over in my head exactly what the point of this essay was. Were the authors trying to provide moral sanction to people fighting "creatively" against corrupt laws? Or, more disturbingly, were they trying to provide moral justification to people who are trying to "be creative" or "change the rules" (a more modest phrase) in societies the authors find "co-opted" somehow--and let "history" decide if they'd made the right/moral choice?

I asked questions like this partially because at least one of their sources (Law and the Rise of Capitalism) is written by a Marxist scholar, and Marxists have a rather creative view of what they consider a "legitimate" government. And partially I questioned their thesis because they seemed to be unnecessarily (and somewhat inaccurately) blurring the definitions of "creativity," "paradigm shifting," lawbreaking, and political revolution to the point where someone subverting a government that others see as legitimate might come across to readers of this document as merely a creative rule-breaker, if you're willing to wait around a couple of centuries to see the end result.

Anyhow, these are the sorts of thoughts that wander through my mind when I'm confronted by murky philosophy--or clear philosophy with murky results. Philosophy matters, so I took the time for this dissection. Make of it what you will.