Calling The Game In Accordance With Its Tenor: Challenging Formalism, The Sports Adjudication Myth

Abstract

In this paper my ambition is to contribute to what’s been called ‘the jurisprudence of sport’. Within that potentially broad spectrum, my focus here lies on the topic of sports adjudication, and the question of if and when sports officials can be justified in choosing to not apply a, or the plain meaning of a, rule. Herein I propose to follow J.S. Russell in his denial of formalism as a reliable and sound thesis for sports officials to try to practice, given the way this notion has been challenged and overcome in the philosophy of law. Russell’s thought is that we can follow the philosophy of law in overcoming formalism, and in thus developing normative theories of sports adjudication to replace it. In this, we agree. But my normative account for sports officials (i.e. my account of what I think officials ought to do, instead of always strictly and mechanically applying the rules, all the time) is informed by first the descriptive, and then the normative, theory of inclusive legal positivism, rather than by R. Dworkin’s integrity theory of law, as Russell’s account is. I argue that sport’s inclusive positivism, as I call it, reliably parlays stable ground as a form of internalism (a theory of the normative content of sports), and can therefore give birth to a reasonable, non-Dworkinian, – and more importantly – non-formalist, normative account for sports officials. In other words, my argument will be that sports officials don’t always have to apply the rules. That is because other perfectly legal standards may be relevant in this context (in the context of rule application, i.e. within a game). One such standard, I contend, is that officials should apply the rules in accordance with the tenor of the game, so as to try to secure what are often the game-specific interests and values that distinctively pertain to sports, and their adjudication.