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This is a call for a volume of collected papers by a British publisher. The provisional title of the book is Sport, Law and Philosophy: The Jurisprudence of Sport. This is an emerging and under-explored field in the philosophy of sport/law, and I have taken the title from a paper by Mitch Berman. For another example (my own contribution) see here
The idea behind this approach is to look at sport through the eyes of a legal scholar and, conversely, legal scholars often allude to themes from sports or games (Hart, Dworkin, Raz, etc.) to illuminate jurisprudential problems. There is recognition that law and sports (as games) bear strong similarities. Both can be understood as systems of rules, with a judge/referee who has the power to issue punishments/penalties. And the rules of cricket, football and rugby are known as ‘laws’ in English.
I recently ran a workshop about ‘The Jurisprudence of Sport’ at the IVR congress in Lucerne [https://www.ivr2019.org/] [Special Workshop No. 20: https://www.ivr2019.org/special-workshops]. This book would build on the workshop papers, but would include new material (8-10 papers). Some space in the volume could be dedicated to contrary views, i.e. law/jurisprudence and sports don’t mix.
Possible topics would be
- Sport as a legal system. What is the normative status of rules compared to laws? Are both realms presenting absolute prohibitions or can rule-breaking be ‘priced’? Are rules disjunctive – you follow them or you break them (compare with the ‘law and economics’ approach)? How should rules be interpreted – like a constitution/originalism? Can you have defective rules, badly framed rules, unfair rules – similarly: defective laws, immoral laws. Are games morally disengaged – cf. legal positivism? Is there something like Kelsen’s ‘Grundnorm’ in sport = ‘fair play’? Game rules as Razian exclusionary reasons? The ‘internal point of view’ (Hart) versus the ‘lusory attitude’ (Suits).
- Types of rules (formal rules and informal rules/conventions; constitutive rules; regulative rules; penalty-invoking rules, playing rules, eligibility rules, conduct rules, tournament rules) – analogies to: regulatory law/statutory law; Hart’s duty-imposing rules and power-conferring rules
- The role of the referee. DECISION: final OR appeals process. The scope of authority between judge and referee. The relationship between the referee and VAR. Enforcement/non-enforcement of rules/laws. The referee, just like the judge, creates facts: ‘you are off-side’ – ‘this will is invalid’. Bad calls and wrongful convictions. Make-up calls and equity. The impartiality of the referee/judge.
- The authority of the referee. Players, but also fans at the stadium, routinely challenge the decision of the referee (including abuse of the referee). TV viewers feel competent, because of VAR, to do the same. Donald Trump has referred to ‘bad judges’ (and ‘bad laws’) and the Daily Mail in the UK branded three High Court judges as ‘enemies of the people’. How does this affect the institution of law or particular sports?
- Rule breaking (intentional/accidental; strategic foul; dangerous play; negligence – recklessness; cheating-fraud = the doper defrauds other competitors: loss of sponsorship, earnings, job opportunities after the end of your career).
- Justice on the sports field and in the court room. What are the means to get justice and how effective are they? Penalties and punishments: proportionality, deterrence, compensation, restitution.
- The nature of a player’s consent (to abide by the rules; assumption of risk; conventions) – contrast with obligation to obey the law. The state’s monopoly on violence – violence and aggression in sport. Entering a game as ‘entering into a contract – rule breaking versus efficient breach in contract law.
- Issues about the application of law to sports (lex sportiva). Should the law have jurisdiction over sport. Isn’t it a private matter (Mill)? Double punishment (doping): through criminalisation and through sports governing body. What is wrong with match-fixing (underperformance)? Rights issues: is it a (human) right for trangender athletes to participate in the sex category of their choice (see Rachel McKinnon)? Privacy and the intersex athlete (Caster Semenya).
- Challenges to the above analogies between sports/games and law: law and sports differ fundamentally.
The aim of the book is to highlight this area of study and its usefulness to both philosophers of sport and to legal scholars. It would be exploratory but at the same time offer some initial orientation in this field of study. In the literature you often get allusions games/sports and law (Pearson, 1973) and sometimes a more in-depth analysis (Fraser, 2005), but there are only a few papers specifically dedicated to the Jurisprudence of Sport. Mitch Berman coined the phrase ‘Jurisprudence of Sport’ (“Let ‘em Play”: A Study in the Jurisprudence of Sport”, 2012). But a book dedicated to the subject is missing. Berman (1331) writes: ‘sporting systems, though rarely explored with seriousness by legal theorists and comparative lawyers, comprise a worthy object of legal-theoretical study.’
Some representative papers
- Kathleen Pearson: ‘Deception, Sportsmanship, and Ethics’, 1973;
- John S. Russell: ‘The Concept of a Call in Baseball’, 1997;
- Hamilton: ‘The Moral Ambiguity of the Makeup Call’, 2012;
- Luis W. Hensler: ‘Torts as Fouls’, 2013;
- Jonathan Crowe: ‘Not-so-easy cases’, 2019;
And a monograph,
- David Fraser: Cricket and the Law
For any questions and further information please contact me at email@example.com