What is Gambling?

The Swiss Court recently ruled that Texas Hold ‘Em is illegal outside of licensed casinos, on the grounds that success in THE is due more to luck than skill. It thus falls within the purview of laws that prohibit private gambling enterprises.  Story here.

I’m wondering whether appealing to the luck/skill differential is the best way to determine whether an activity counts as ‘gambling.’  Betting on sports games is a paradigmatic instance of gambling, but I doubt whether success in sports-betting is due more to luck than ‘skill.’   You may of course get lucky once or twice betting on sports, but you’re extremely unlikely to do well over the long haul if you don’t bring to the table significant knowledge of the sport.

It seems to me that all the clear-cut instances of ‘gambling’ involve the following: a person risks money on the occurrence of a future outcome with a probability less than 1.  This covers all the clear-cut examples of gambling (sports-betting, horses, roulette, craps, Keno, lotteries) but excludes games like THE.  (Note that in THE you’re not betting that the outcome of the hand will be that your cards are better than another player’s cards–you might strongly suspect that they are not and bet nonetheless.)

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8 Responses to What is Gambling?

  1. Nate says:

    Interesting story. The reasoning in the court’s decision is weird, in that they seem to be asking the wrong question. It doesn’t strike me as being particularly relevant that luck outweighs skill in poker. Suppose it does. (And, in fact, I believe it does.) Over time, luck will be evenly distributed, meaning that the remaining non-luck factors will prove decisive. And that’s all one needs to make it a game of skill. So, the relevant question is not whether luck outweighs skill, but whether skill plays a sufficient role to give a meaningful advantage to those who have it. Crazy eights? Probably not. But poker? Obviously.

  2. Lime says:

    Nathan, perhaps if you were better at THE you would consider it a game of skill =)

    They must be interpreting luck vs. skill in a given hand or perhaps competition, rather than over time. On that interpretation, it seems that betting on sports games, where there is a line, is more luck than skill as well. That being said, I wonder precisely how we measure luck vs. skill, or test our intuitions.

  3. Josh says:

    This is, in fact, a problem. I imagine there is some set of legal distinctions that have operationalized the definition of “gambling” but my guess would be they’ve sidestepped the moral ambiguities that you’re asking about.

    It’s only tangentially related, but I’m often wondered about what constitutes “prostitution.” It seems particularly problematic in light of the pornography industry, an industry which obviously pays people to have sex. And to anticipate an objection, what about movies shot in the first person, where an individual is paying another individual to have sex and allow them to film it? Take away then camera and it becomes illegal? That’s weird, right?

  4. David says:

    The prostitution/pornography distinction came up in my Applied Ethics course this past semester. We were similarly puzzled. I believe I suggested that the legal basis for the distinction has something to do with the fact that pornography is included under the umbrella of ‘speech,’ and so protected. (I don’t mean to defend this way of distinguishing the two.)

  5. Lime says:

    I believe, actually, that distinction has something to do with who the customer is. Is the customer (the one paying for the product) paying for sex, or paying to watch a movie.

    The legal realist in me believes, simply, that as a society we want pornography to be legal, but prostitution not to be. So judges will bend over backward (even citing a lack of interest in prosecuting pornography) to interpret the law in this way.

  6. Josh says:

    Figuring out who the “customer” is, though, seems tough. Consider my hypothetical from before – a single filmmaker pays an actress to have sex and film it too. How can we say that the relevant customer here is the film’s ultimate consumer? In what sense is the filmmaker not a customer, assuming he gets some pleasure out of the interaction? Does the intention of the filmmaker make the distinction? That seems problematic too.

    I suppose the law would say he’s paying the actress to be filmed; the sex is secondary. But isn’t that what escorts always say (on Law and Order and elsewhere) – that their client was paying for a date, and the sex was secondary? It really seems to me that both pornography and prostitution should be illegal, or neither should be.

    How does appealing to legal realism help? I’m saying there may not be a good theoretical basis even for distinguishing between pornography and prostitution, and as such, even assuming Lime is right that “we want pornography to be legal, but prostitution not to be”, that want is itself incoherent. We think without reflecting that these are two different categories, but they are not.

  7. David says:

    Lime writes: “The legal realist in me believes, simply, that as a society we want pornography to be legal, but prostitution not to be. So judges will bend over backward (even citing a lack of interest in prosecuting pornography) to interpret the law in this way.” I suspect this is probably right–it seems especially plausible given our sense that there is no theoretical basis for criminalizing prostitution but not pornography. But I wonder why we ‘as a society’ have this sense that people should be allowed to make a living in the pornography industry but not the prostitution industry. Something must be behind our tendency to treat these two industries differently, even if, on reflection, we have no grounds for doing so. Any ideas?

  8. Lime says:

    Just speculating here, obviously, but I think that in Josh’s example the conviction would probably turn on jury/judge’s understanding of the intent of the “filmmaker.” Was he “making a film” or “filming his ‘sex for pleasure’?”

    Josh, I don’t think your example renders the distinction incoherent so much as it points out that in some cases the distinction between prostitution and pornography depends upon our conception of the motive of the actors. Of course, the fact that from outside an perspective the events may look identical may point to outlawing both or neither.

    Courts face similar issues when prosecuting hate crimes, some forms of sexual discrimination, etc. In the above case, I imagine that the prosecution would try to point to a history of filming without developing for sales, other facts about the filmmaker, and so on to establish motive.

    None of this speaks for or against morally distinguishing between the two cases.

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