Playing by the Rules

Mitchell N. Berman, "Let 'em Play:" A Study in the Jurisprudence of Sport, 99 Geo L.J. (forthcoming 2011). Connie Rosati What does sport have to do with jurisprudence? Not a great deal, one might think. To be sure, particular sports, like legal systems, are rule-governed practices. This commonality and the relative simplicity of sports makes them useful as a source of examples that might be deployed to explain more complex legal-theoretical ideas. Philosophers of law and legal theorists commonly use sports examples in just this way. Most famously, H.L.A. Hart used examples from games and sport both in criticizing other views about the nature of law and in clarifying his own distinctive view. In his critique of Austin's command theory of law, for example, Hart invoked the scoring rules of a game as he explained why nullification under the power-conferring rules common to modern legal systems cannot be assimilated to sanctions under duty-imposing rules. (H. L. A. Hart, The Concept of Law). And he adverted to chess and cricket to explain one of his most distinctive theses-that rules, and so law, have an "internal aspect." Chess players, he observed, do not merely have "habits of moving the Queen in the same way," which an external observer might record. In addition, "they have a reflective critical attitude to this pattern of behavior: they regard it as a standard for all who play the game." Continue reading "Playing by the Rules"

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