SOME PHILOSOPHERS SAY you can’t win a sporting contest by cheating. Their idea is that games wouldn’t exist apart from the rules that govern them, and so someone who ignores those rules isn’t even competing, let alone winning.
This is the kind of thing that gives philosophy a bad name. Tell it to the Irish soccer team after they failed to qualify for the 2010 World Cup because of Thierry Henry’s blatant handball. “It’s all right, boys. We’re going to South Africa after all. France didn’t beat us, because you can’t win a game of soccer by transgressing the rules that define the game.”
You might think that there’s a distinction to be made here between being credited with a win, as France was, and really winning. A student who steals the answers beforehand might be deemed to have “passed” the exam, and have a certificate to prove it, but the student hasn’t really passed. In the same spirit, perhaps we can deny that Henry’s handball resulted in a genuine victory, even though France’s name went down as the winners.
But it’s not a good analogy. Of course France really won. Indeed they did so as a direct result of Henry’s cheating. That’s why they and not Ireland went to South Africa.
It’s different from the exam case. If it were discovered afterwards that the student had stolen the answers, the exam result would be quashed and the certificate reclaimed. But there was no question of revising the final score once Henry’s handball became public. After all, the foul was as public as could be from the start, to everybody but the referee.*
So you can break the rules and still be competing, whatever the philosophers say. Still, there remains a good question here. What exactly does it take to be playing a game? Maybe you can break some rules, but there are limits. You can’t win a soccer match by shooting the referee and carrying the ball over the goal line.
To sort this out, we need to distinguish between the rules of the game, the code of fair play, and the authority of the officials. And once we have done that, it will turn out that there are some interesting analogies between playing a game and being a citizen of a state. We’ll see that fair play is often consistent with breaking a game’s rules, and this will then suggest, against philosophical orthodoxy, that there is no general moral requirement for good citizens to conform to the law of the land.
Let’s start with the difference between the official rules of a game and the code of fair play. By the code of fair play, I mean the expectations that the athletes have of each other, their sense of what is and is not acceptable behaviour. Such unwritten codes of fair play can diverge from the official rules in both directions. There are rule violations that count as fair, and unfair strategies that don’t break the rules.
Basketball offers a good example of the first kind of divergence, where breaking the rules is in line with accepted standards of fair play. If you are one point down and your opponents gain the ball with twenty seconds to play, you are downright supposed to foul them. It’s the only way you can prevent them keeping the ball until the final whistle. So you foul them, stop the clock, and hope that you can beat their score once you get the ball back after their free throws. It’s an accepted part of the game. Everybody expects you to do it, the referee’s whistle is pretty much a formality, and nobody thinks of it as bad practice at all.
Then there are the converse cases, where you can violate an unwritten sporting code even though you aren’t breaking the rules. In 1981 New Zealand needed a six off the last ball to win a one-day cricket match against Australia. The Australian captain Greg Chappell instructed his brother Trevor to roll the ball underarm at the batsman, making it physically impossible to hit a six. While this was fully allowed by the laws of cricket, it was universally condemned as against the spirit of the game. (The Kiwi prime minister at the time, Robert “Piggy” Muldoon, didn’t hold back: “the most disgusting incident I can recall in the history of cricket… an act of true cowardice and I consider it appropriate that the Australian team were wearing yellow.”)
It is interesting to compare notions of fair play across different sports. Simon Barnes, for many years the chief sports writer on the London Times, once described a friend of his saying, “I would die rather than cheat at golf. In cricket I cheat sometimes.… And when I played football I cheated all the time.”
Barnes’s point wasn’t that his friend was an honest citizen on the golf course, but turned into a moral leper on the soccer field. He was just the same character in all these sporting contexts. Rather Barnes was making the point that different sports impose different requirements on their participants. Some look askance at any deviation from the rules, while others regard it as quite proper to break them and take any consequent penalties.
Golf is at one end of the spectrum. It’s easy to tee up your ball in the rough when no one is watching. But improving your lie like this is quite beyond the pale, even in the most insignificant competition. Someone caught out surreptitiously fiddling with their ball won’t just be penalized the two strokes required by the rules. They will be ostracized in the bar and very likely expelled from the club.
In soccer, by contrast, all kinds of technical infractions are an accepted part of the game. You steal as many yards as you can at throw-ins, you tug and pull at your opponent as the corner comes over, you give away a free kick rather than let the attacker beat you.
Still, this doesn’t mean that there aren’t clear standards of fair play in soccer. It might be all right to take a red card for a foul that stops an opponent scoring, but it’s not all right to take one for a two-footed tackle that might break a leg. Play-acting in order to get an opponent sent off is widely frowned upon, at least in northern countries. When one side kicks the ball out because a player is injured, everybody respects the obligation to give it back at the throw-in.
And so it goes. In rugby union, punching and even stamping are regarded as in the spirit of the thing. (When the saintly Northern Irishman Willie John McBride captained the 1974 Lions tour of South Africa, his dressing room instruction before the first test match was, “Let’s get our retaliation in first.”) On the other hand, disagreeing with the referee is a decided no-no. (In 2013 the French coach voluntarily dropped his star forward Louis Picamoles for mildly mocking a referee’s decision.)
Ice hockey similarly allows, indeed encourages, its players to vent their frustration in honest fisticuffs, with a standard penalty of five minutes off the ice. But it’s strictly arms and fists that are tolerated. Any player who uses his stick as a weapon will be suspended for a number of games.
In cricket, it has now become acceptable to “sledge” the batsmen between balls, trying to distract him with some verbal dig. But no fielder would dream of talking once the bowler begins his run. That wouldn’t be cricket.
I could go on. All sports have their own quirky codes, unwritten rules of behaviour handed down from generation to generation. But let’s get back to our original question. What does it take to be playing a game?
If conformity to the formal rules isn’t the right answer, perhaps it’s that you must stick to the unwritten code of fair play. But that doesn’t seem right either. Take Thierry Henry and Ireland again. I’d say his handball overstepped the bounds of fair play, even by the standards of professional soccer. But this didn’t somehow invalidate the result. There were no serious grounds for appeal. The referee’s decision, as they say, was final.
Perhaps there is room for dispute about this specific case. Did professional soccer players really consider Henry’s handball beyond the pale? It’s debatable. I doubt that any of them thought that Henry should have confessed to the referee after the goal was given. But I for one was disappointed that he handballed in the first place. Bobby Charlton wouldn’t have done it, nor would Gary Lineker.
Still, let’s not bogged down in one example. The general point is clear enough. If a less controversial case is needed, just consider the Trevor Chappell underarm ball again. Even though everybody thought it a terrible violation of the spirit of cricket, the umpires had no option but to call it a legal delivery, and Australia won the match. Maybe they won by sharp practice, but they certainly won. That’s precisely what was so galling to the Kiwis.
Sports performers can behave very badly indeed while still competing in every sense. Take the “Bountygate” scandal that engulfed the NFL’s New Orleans Saints in 2011. Their coaching staff had been running a “bounty” system, rewarding players financially if they succeeded in injuring targeted members of the opposition. The practice was greeted with universal incredulity and revulsion once it was exposed, and heavy suspensions and fines followed. But none of the Saints’ wins was overturned.
A not dissimilar episode shamed the English rugby union side Harlequins in 2009. The rules of rugby make special provision for substitutions of players with blood injuries. To take tactical advantage of these “blood replacements”, the Harlequins management started cutting lips, issuing players with blood capsules, and otherwise spilling fake blood. When the story came out, the rugby union fraternity was shocked, and the club coach, doctor, and physiotherapist were banned. But, once more, nobody suggested that Harlequins hadn’t really been playing rugby matches and that their results should therefore be nullified.
Still, as I said, there are clearly some limits beyond which you aren’t playing anymore. To my mind, the crucial issue is whether you continue to accept the authority of the referee or other officials. However badly you behave, you’re still playing if you defer to the decisions of the on-field authority. Once you refuse to do what the referee says, though, you’ve abandoned the game. You can have a game of soccer with innumerable and immoral fouls—we need only think of Holland’s “tactics” in the 2010 World Cup final against Spain—but you can’t have one where the players don’t listen when the referee blows his whistle.
I think that there is a moral for political philosophy here. A central issue—the central issue—for political philosophers is “political obligation”. Why are we under any moral obligation to respect the state? After all, newly naturalized citizens apart, none of us had any choice about being ruled by our institutions of government. Nobody asked us whether we wanted to be subject to the police, the courts, and the tax system. These authorities simply imposed themselves on us. So why exactly do we have to obey them?
Nearly all political philosophers pose this issue in terms of respect for the law. The first sentence in the entry on political obligation in the authoritative Stanford Encyclopedia of Philosophy states: “To have a political obligation is to have a moral duty to obey the laws of one’s country or state.” Philosophers debate the precise basis for this duty, but they nearly all take it as given that we do have a duty to obey the law. Their dispute is only about why this is so.
Of course, philosophers also recognize that even legitimate democratic states can sometimes have immoral laws, such as laws prohibiting homosexuality, say, or enforcing racial segregation. But they don’t regard these as invalidating the moral standing of the law, so much as generating moral conflicts—on the one hand we have the general moral duty to obey the law, and on the other the more specific moral duty not to discriminate unjustly—so somehow we need to resolve the two, perhaps by campaigning to get the unjust law changed.
I wonder if the political philosophers aren’t missing a trick here. The sporting analogy suggests an interesting option. Perhaps citizens have a moral duty to respect the authority of the state, but no further moral duty to obey the law as such—just as participants in a game must defer to the authority of the officials, yet beyond that are under no compulsion to conform to the rules.
I don’t think that there is much doubt that we all benefit from the protection of the state. As Thomas Hobbes observed in his Leviathan over 350 years ago, life would be “nasty, brutish, and short” without a central authority that successfully claims a moral monopoly on the use of force. When states fail, basic public services disappear and life quickly degenerates into lawless looting.
Even a bad state is much better than none at all. When the hated regimes of Eastern Europe and South Africa collapsed at the end of the last century, their populations had the good sense to carry on recognizing the existing police, courts, and other state institutions until new constitutional arrangements could be made. By contrast, the misguided disbanding of the defeated Iraqi army and police by the US authorities in 2003 created a vacuum for mob rule, and is viewed by many commentators as the main source of the subsequent chaos in the Middle East.
Still, even if the threat of anarchy creates a moral imperative to recognize the authority of the state, I don’t see that this carries with it any further moral duty to obey its laws. As we’ve seen, playing a game depends on ceding authority to the officials, but not on adhering to the rules—it can be quite proper to break a rule and take the penalty. So too with civil society, I say. As a good citizen I must respect the state, but not necessarily its laws.
What if someone murders his wife and accepts the prison term that follows, figuring that a few years behind bars is a small price to be rid of her? Would that be all right then? Absolutely not. But that’s because murder is wrong, not because there is a law against it.
Just as in sport, we need to distinguish between breaking the formal rules and genuinely unacceptable behaviour. Sometimes breaking the formal rules also oversteps the standards of fair play, like two-footed soccer tackles. But that’s not just because it’s breaking a rule, but because it’s nasty. Think of all the cases where it’s quite appropriate to break a rule, such as fouling in the last seconds of a basketball game.
As I see it, then, while we should certainly respect the state’s authority, we only have a duty to obey the law when it would be moral to do so anyway. You might wonder whether this holds good in all cases. What about the law requiring you to drive on the left in Britain? Surely that wasn’t a moral requirement until Parliament said it was. It’s not as if there is some universal and eternal moral principle saying you must drive on the left, independently of what Parliament decrees.
This is an interesting case, but it doesn’t suffice to show that Parliament can create duties ex nihilo without any prior moral backing. As it happens, the convention of driving on the left arose independently of Parliament. This by itself was enough to create a moral requirement to conform, simply because you would endanger others if you didn’t. Later on, Parliament specified penalties for those who violated the convention. But that only made Parliament the enforcer of the moral requirement, not its original basis.
I’d say something similar even if parliamentary intervention had in fact been the sole source of the rule about driving on the left. Parliament would then have been helping people to settle into a useful agreement, which they would then have a moral duty to observe. But this moral requirement wouldn’t have derived from some general principle that you must obey Parliament because it is Parliament, whatever it says, but simply from the principle, as before, that you shouldn’t endanger others needlessly.
We can apply this idea more widely. It is in everybody’s interest, independently of any legal system, that we share the burden of paying for roads, police, defence, and so on. However, it will always be a bit arbitrary exactly how this burden is shared, just as it is arbitrary which side of the road we drive on. So one sensible solution is to set up a body that will figure out some reasonable rules about taxation, which we will then all have a moral duty to follow.
As it happens, elected governments are the bodies that we use for this purpose, and so we all have a moral duty, within reason, to pay the taxes that they require of us. But, again, this isn’t because we must blindly obey the decrees of governments as such, but because they are asking us to do something that is independently moral.
The point is that the state sometimes plays a co-ordinating role in setting up moral arrangements, as with taxes, the highway code, and so on. Most moral requirements, however, are not like this. We don’t need the state to tell us that it’s wrong to murder, assault, rob, or kidnap. These things are morally wrong, whatever the state says.
At most, the state’s role with murder, robbery, and similar immoral crimes is to specify the punishments that are due to offenders. But that’s a different thing. That’s not what makes murder wrong. It’s just a matter of coordinating our social responses to those who transgress.
So I say that when we have a moral duty to obey the law, that’s not because it’s the law, but because breaking it would be wrong anyway. You shouldn’t commit murder even if there weren’t a law against it.
Conversely, sometimes states get it wrong. They say that certain acts, like homosexuality, racial intermarriage, or drinking are immoral, when in fact they aren’t. In cases like these, I don’t see that I have any moral duty to obey the law. I certainly don’t want to get rid of the state, for that way lies chaos. But when it prohibits me from doing things that aren’t wrong, I will happily ignore its requirements, even while respecting its authority to penalize me if I am caught.
So the analogy between games and politics turns out to be remarkably close. In both cases, we need a central authority that wields power, otherwise we will have nothing but a brutish mess. But beyond that there is no moral requirement to obey the authority’s regulations. We can reasonably take our own view on whether it is right to transgress and risk official punishment.
This freedom does not mean a world without morality in which everything is permitted. Just as most competing athletes will have a clear sense of which sporting infractions are and aren’t acceptable, so will most citizens recognize that many actions aren’t just illegal but downright immoral. These are the codes that really matter. We need officials to make sure things don’t get out of hand, and for this reason I’m the last person to question their authority. But when my sense of fair play allows it, I’m quite ready to break the rules.