Principles and the application of rules 101 6 Principles and the application of rules For some, ‘[i]t is only a matter of time before major tennis tournaments are played without line judges’ (Henderson 2002: 16). This might be thought a good thing, eliminating human error. But, as we have seen, human judge- ment is essential in aesthetic sports. Still, it might seem that the difficulties or issues raised for judgements of aesthetic sports in the previous chapter either do not apply to purposive sports, or that (when they do) they can be overcome by appeal to technological solutions; for instance, modelled on the way that some line-calls in tennis are automated.
But neither point is correct: there will always be areas of judgement, even in purposive sports, since what event occurred depends on how the rules constitute actions (see p. 91); further, there is a limit to what technology can ever achieve. It is probably not possible in practical terms to do without the judgement of referees or umpires, even in purposive sports. Perhaps decisions about what precisely occurred in such-and-such a case are often replaceable by some ‘technological solution’; as, for instance, when the Cyclops machine used in lawn tennis replaces line judges for at least some cases of determin- ing the legality of the serve – we can imagine such a technology extended to cover all cases, ‘from infrared motion detectors to Matrix-style rotating cameras’ (Adande 2003: D8).
Yet, even were this possible, not all issues will be resolvable in this way. For instance, other considerations of this practical kind relate to the gain if (or when), say, the umpires in cricket were replaced by some technological solution of this sort, recently raised in the context of a discussion of the pressure placed on umpires by ‘players, crowds, media’ (Brearley 2002: 8): for one way to remove the pressure on the correctness of one’s judgements would be to make those judgements answerable to a machine, either to its bleeps or to its ‘decisions’ as to whether a ball was in or a batsman was out. But one might, with justice, harbour reservations about taking that much power out of the hands of persons – where there would be no appeal when the machine beeped that a ball was out. And, of course, one would not have eliminated human judgement if there were such an appeal, but to an umpire.
In such cases, though, one practical danger is that we must now rely on the machine, which differs from trusting an umpire or referee. As with 102 Principles and the application of rules computers, the machine here is likely to function as a black box: we will not know, nor be able to check, that it is functioning correctly – nor that it continues to do so. After all, an umpire can be asked to explain, in ways a machine never can. Further, we can understand how an umpire might ac- quire authority.
As Brearley (2002: 8) rightly put it, such authority ‘comes from good decisions,. but it is also earned by an attitude lived out by the umpire, an attitude that communicates such qualities as honesty, impartial- ity, fair-mindedness, integrity, directedness, and openness’. Only the first of these is possible for our machine. Should the machine be adopted, it may ‘subvert the decisions made by court-side officials’ (Henderson 2002: 16): certainly, in challenging them, it will at least rep- resent a different kind of authority.
(And, as we will see, the umpire may be required to deal with new or unexpected cases.) Moreover, trusting the machine will alter the nature of the sport in other ways; for instance, by changing the margins of winning or losing. Consider the use of ever more exact timing in downhill skiing: what now constitutes a narrow victory would, at an technologically more primitive time, have been a tie, a dead heat, or a draw. This may not matter. In addition, the reply might be that there was always a difference here – that the difference had now become noticeable (or recordable).
Of course, it might be decided that real sports should be of the completely measurable sort – but that would have implications, with a reduced list (compared to, say, the Olympics) of what are and are not sports; moreover, the list might differ markedly from what – pre-theoretically – we thought. For if judgements by umpires can be required, not simply as to whether the ball crossed the line or the batsman grounded his bat, but also as to whether the action was within the rules, such umpiring decisions will always be indispensable. And, as I shall argue, this is – and must be – the situation. The need to apply the rules (even for purposive sports) Two features are supposed to make the situation clearer for purposive sports than it was for aesthetic sports.
First, the outcomes themselves are clearer – it seems the question is simply, ‘Did the ball cross the line?’, ‘Which runner crossed the line first?’. (That is, there is an answer in terms of Suits’s pre-lusory goals.) This might seem a purely factual matter, not one requiring the discretion of judge or referee. Second, all the referee or umpire needs to do is to apply the rules of that sport, where such rules will unambiguously determine whether or not there was a score; or, more generally, what should be done. Doubts have already been raised about the first of these elements.
‘What occurred’ in a sporting context often cannot be decided independently of the application of the rules of the sport: that is one sense in which rules function as constitutive. For convenience, we might contrast the role of the referee or umpire in adjudicating as to what happened with the role in adjudicating on Principles and the application of rules 103 the application of the rules in ‘tricky’ situations. In part, the umpire’s adju- dication on what happened will always be rule-related. Thus determining what happened might involve answering such questions as, ‘lbw or not?’, ‘ball or strike?’: and these involve determining not only that the ball was in a certain position, but that this was achieved within the rules.
The second half of this contrast, concerning tricky situations, can wait until a little later. For most of the situations in a standard game or match will be ones where, once what happened is known, the application of the rules is unproblematic. But, to pursue the first element of this contrast (adjudicating what hap- pened), there will be matters where judgement is needed: for example, in American football, a player must have ‘both feet down and be in control of the ball’ in order that a pass into the end zone be completed (for a touchdown). Here, at least, judgement is required as to whether or not there was control: that does not seem a matter readily determined by a machine.
Similarly, in rugby, scoring a try requires that the ball be touched down in control, where one contrast is with the touching down being blocked by, say, the body of an opponent. Again, such recognition could not realist- ically be mechanized. So some level of human judgement is inevitable here too, as it was for aesthetic sports. The second matter is equally problematic, for (as we saw in Chapter 2 pp.
49–52) rules could not – in principle – cover all cases. Then the umpire or referee’s application of a rule in a particular case may go beyond what had previously seemed the scope of the rule. In such a situation, the umpire will seem obliged to make a new rule – which appears to give umpires too much power (or inappropriate power). In both kinds of sports (aesthetic and purposive), there are questions concerning the role of judges or um- pires: in applying the rules of sports, should we perhaps see these umpires as making rules (as some writers on jurisprudence have seen judges in the US Supreme Court as making law: compare p.
108)? Moreover, the general difficulty here is that all rules must be applied in all situations: what behaviours a rule prescribes or proscribes is not automat- ically clear. This follows from our earlier recognitions about rule-following – that one cannot, say, provide a further rule to explain what following this rule amounts to (since to do so suggests a regress: Chapter 2 p. 45); and that there will be cases where the application of the rule is either silent or problematic (for instance, counter-intuitive). Some cases? The central cases, then, are those where the application of the rules of the game seems problematic.
In some cases, the extant rules do not seem to deal with the actual situations while, in yet others, there seems to be a clear rule – but the wrong one! (Or, at least, one that generates cases that seem to violate considerations of natural justice; one where a common-sense applica- tion of the intention behind the rule would yield the opposite outcome.) 104 Principles and the application of rules Starting from some examples from J. Russell (1999), let us explore some of the varied bases to which decisions by umpires or referees might appeal in practice. • Helping out at home – in an 1887 game, runner Mack, who had success- fully crossed home plate, tussled with the catcher, allowing two further runners to cross the plate: but the rules applied only to base runners: having completed his run, Mack was not subject to this rule. • Hoak’s sacrifice – in a 1957 game, Hoak (on the batting side) fielded a ball himself, to prevent two members of his team being out.
He was penalized for hindering a fielder making a play on a batted ball; but there was ‘nothing explicitly in the rule book to penalize an offensive player for intentionally interfering with a batted ball to break up a double play’ (Russell 1999: 29). So the other players remained in the game. • Pine tar incident – in a 1983 game, ‘a potentially game-winning home run [was] disallowed. when it was discovered that pine tar resin had spread over more than the bottom 18 inches of [the] bat’ (Russell 1999: 30), contrary to the rules, even though it was agreed that this gave no advantage.
In the first, considerations of natural justice mean that tussling with the catcher is contrary to what should be allowed – and, indeed, the rules were later emended in this direction. But, as the rules then stood, Mack was not in contravention of the rule, although he should have been! In the second case, like the first, the player gains an advantage by beha- viour not explicitly precluded under the rules as they then stood. Again, considerations of natural justice lead to a sensible outcome: the advantage cannot be permitted under any reasonable reading of the rules; and the umpire should have so ruled. In the third case, the player is in clear contravention of a rule designed to prevent gaining an advantage – but, in this case, it was agreed on all sides to be no advantage (and possibly even a disadvantage).
So there should not have been a penalty, despite the rules. In all these cases, then, considerations of natural justice – of what seems fair and right, and in line with the spirit of the rules – conflicts with the letter of those rules. So, as these cases illustrate, and as Russell (1999: 30) notes, ‘rules governing games cannot always be relied upon as definitive guides to the regulation of conduct’. It might seem, at first glance, that all that is needed here are new rules, better rules: but (as we saw in Chapter 2 pp.
46–7) this is an illusion.
