The Spirit of the Game

Some years ago I wrote an article on the philosophy of law in a free society. It posed an important question. Should the wise among us not impose a more perfect law on us even against our will? With comments to my article from Saturday ringing in my ear it seemed well to reprise that oldie.

A friend let me borrow a book on baseball written by philosophers. It is remarkable how facinating thinking people find the game of baseball. In one chapter in particular a philosopher addressed the issue of the "spirit of the game" as it applied to umpiring. He then implied a connection to the philosophy of law.

Upon some reflection after having read the chapter there is good reason why we should not want philosophers deciding how judges umpire the game of life.

The argument crystallized around two instances where an umpire's call went to the heart of how the game of baseball is played. The first dealt with a call from the 1880s. In this instance a batter got a hit with men on base. As the first of these runners crossed the plate he began to interfere with the catcher, who was thus unable to tag a succeeding runner out. By the letter of the law of those early days of the sport this unsportsmanlike behavior was not expressly forbidden because the definition of "runner" applied only to those on the base paths. When the runner crossed home plate he technically was no longer a runner, so the rule in effect at the time preventing a "runner" from interfering with the fielders of the other team appeared not to apply to him. The umpire called him out anyway, sent the other runners back to the base paths, and killed what had appeared to be a legal, if not moral, rally. The next week the rules of baseball were changed both to ratify the umpire's extraordinary decision and to make clear that the intent of the game did not include former runners being free to interfere with the action on the field.

The second incident was from more recent memory. In the late 1970s, in a game played in the American League, an apparent home run was hit with two outs in the top of the 9th inning. The team in the field protested the hit on the grounds that the bat with which the home run was hit was covered with pine tar farther up the bat than the rules allowed. On those grounds, the argument went, the bat was illegal. Since the rules required that a batter who uses an illegal bat to be called out the home run was nullified with a game-ending out call.

American League president Lee McPhail reviewed the call the next day and reversed it, reinstating the home run. The game was finished that afternoon from the point of the call and the former losing team won. McPhail's explanation of the reversal stated that the call, while correct to the letter of the law, violated the spirit of the game in that it substituted a narrow legalism for the embrace of the athletic "excellences" baseball is intended to celebrate.

Now, from what I stated earlier one might think I had a problem with these decisions. Not so within their contexts. The spirit of sporting excellence implied in both decisions is how sport ought to be done. Should that spirit of excellence also apply to our conduct of the law? Isn't the spirit of the law a concept that rises above the petty importance of the letter of the law?

In point of fact the answer to both questions is no.

An exclusivity founded in excellence is the point of the rules of baseball. The fifty people in a stadium who do baseball best are all supposed to be on the teams- not in the stands. That excellence keeps the other fifty thousand people interested enough to stay. Otherwise, though, the spectators are irrelevant. The conduct of the game would be the same if they were not there. The (rare) liberties umpires may take are designed to keep mere mortals out of the game.

The point of the law, particularly in America, is different. Yes we all desire and benefit from excellence. We are better off when the law promotes this high goal, but unlike baseball, where a committee of (incredibly) wealthy owners makes the rules and their employees both enforce and play by the rules, in law the common spectators are intimate participants. We are supposed to take part in the process that produces law. Then we are required to live under the rules we have made.

Permitting liberties like those mentioned above is just as exclusionary in law as it is in sport, but when the people are shut out of the process the perceived legitimacy of the law we must live by suffers. In a free society the legitimacy of the law is more important than its perfection.

When laws are enforced as written we feel the effects of what we have fought for and won. When the law thus made is good that helps the spectators to feel empowered. When the law is ill conceived or just plain bad (Prohibition comes to mind) the results are chastening. The spectators will continue to participate to get the excellence they desire because they have felt the unanticipated and unwanted effects of their own power.

When interventions, even well meaning ones, interfere with this process and negate the spectators' work we might get a higher level of excellence for a time. We might also be forced out of our homes or businesses for the profit of others, or be made to pay for or participate in things we find abominable. In any event the umpires will have declared us incompetent to decide for ourselves.

Law is not a spectator sport. If all we can do is watch as the best players do the law on the field all of us in the stands are in deep trouble. We are the owners. We appoint the rules committee. We'd best not become irrelevant. In this game it is far better to suffer, and then correct, our own occasional bad rule than it is to allow the umpires to decide for themselves how they will enforce the spirit of the game.

Posted by Lee Emmerich Jamison at May 2, 2010 6:08 PM
Comment #300018


Good article. The government indeed works for us and it is a tool for the people, not a ruler.

Just rules are important. More important is to avoid ANY precise government rules whenever possible. Let individual people come to mutually agreeable solutions. the Attempt to create perfect justice is a totalitarian enterprise. Government rules should be good enough and not overreaching.

Posted by: C&J at May 2, 2010 6:41 PM
Comment #300021

Somewhere in your essay an insertion could be made. A great mind of years ago said that the best government is one that governs the least. Today our federal government treats the citizens as too stupid to do the right thing. There is a smidgen of truth in that. We keep re-electing them to keep reminding us that we are too stupid to do for ourselves what we must do and therefore we are here to help you make the right choice and if necessary force you to make what the government deems is the best choice.

Posted by: tom humes at May 2, 2010 7:26 PM
Comment #300023

An important caveat from our founders. Democracy is not mob rule.

Posted by: gergle at May 2, 2010 7:40 PM
Comment #300025

gergle, your right especially not in government.

Posted by: MAG at May 2, 2010 8:06 PM
Comment #300028

The best government is that which can govern least, which governs efficiently, and prevents problems in society from reaching crisis levels.

When folks seek small government, but remain oblivious to signs that their efforts are causing problems, they don’t create encouragement to stick with small government, they create future demand for intervention. All too often, folks on the right cynically use such crises, even their own screw-ups to push hatred of government.

But in the end, can we not say that the election of Barack Obama and the Democrats would have been far more unlikely had Republicans managed the country better?

People, I think, were willing to let the government remain as it was. There’s no great thirst, all things being equal, for somebody constantly intervening in your life. We want to be free to make our own decisions.

Small government, big government, what is the necessity of government in the first place?

Fact is, though we’d like to think that everything would be fine if we could indulge ourselves, nobody’s infallible, and at some point society must decide to get in the way of the individual’s freedom of action. At some point, somebody has to be able to tell us “no” about something, or otherwise the chaos in society takes all the life out of our freedom, makes it like ashes in our mouths.

A properly run government would have told Wall Street no, told them that they would have to compete as smaller banks that we could afford to let fail. A properly run government would have ensured that people weren’t building castles of air in Wall Street.

But because they didn’t, it will be a long time before the thirst to rein them in dies down.

For far too long, the political right has encouraged business leaders that the government should cater to, even enable their bad behavior. If there’s one thing most of the rank and file in both parties can agree with, it’s that government shouldn’t be doing this.

Unfortunately, the political philosophy is getting in the way. There are a whole slate of options that are off the table, according to the Republicans, and they enforced this with an endless campaign of rhetoric designed to get people outraged and scared about even the solutons that are working.

The Republicans need to realize that it’s BS to hold people accountable for ideology when the practical governance hardly gets taken care of.

Posted by: Stephen Daugherty at May 2, 2010 9:01 PM
Comment #300033

Now re-write the above and substitute democrat for republican and left for right but include what you have there and that would make sense. It is not a d-r, l-r issue it is poor leadership from both major political parties across the board. This has been going on before I was born which is before WWII. Both major parties have had opportunities to correct the political wrongs, and both parties have failed miserably.

Posted by: tom humes at May 2, 2010 9:40 PM
Comment #300038

One of those great minds, one who learned at the feet of Andrew Jackson, was Sam Houston.

The ideal of the Founding Fathers was never “mob rule”, but the antithesis of mob rule is neither aristocracy nor oligarchy. Centralized authority always devolves into a rule of brutes.

People need to know they have the power to move the government they own. They also need to know the people who run the apparatus of that government can’t steal it from them simply by importing and legalizing conveniently impoverished new minorities who will vote for them. At present they would be foolish to think that is not one of many reasons politicans resist enforcing limits to immigration.

Republicans, or shall I say “country club” Republicans, such as George W. Bush clearly have been a major part of the problem. The truth is the corporate interests, both corporate government and corporate business, see tremendous advantages in unlimited immigration and tremendous disadvantages in popular sovereignty.

Posted by: Lee Jamison at May 2, 2010 11:04 PM
Comment #300039

SD hit the nail on the head except for an oversimplistic approach regarding “too big to fail” banks. Size is not as important as quality. The bank that statred the Great Depression failure was the 28th largest.
Laws are not just the rules. They also set the direction. Effective workforce safety laws, save lives. Pollution laws protect the air we breathe. Anti-trust laws protect the market we all depend on. Labor laws protect workers and build the middle class,etc.The key is enforcement. The last administration adopted a strategy of weak enforcement to co-inside with its philiosophy of weak government. They did an end run around not only the will of the people but the best intrest of the people. They fired the umpire and put a crony in his place.

There is a framework for immigration overhaul being put together currently empasizing enforcement.It does contain a conditional path to US citizenship for selected immigrants that have been in the US for awhile. Looks to me to be a good starting proposal. You might want to take a look. Its a Dem proposal at this point but should pick up some Rep support.As C&J pointed out,enforcement will make all the difference in the world. Take a look.

Posted by: bills at May 3, 2010 12:34 AM
Comment #300040

Here is some info on the immigration proposal being cooked up.

Posted by: bills at May 3, 2010 12:40 AM
Comment #300043

C&J said: “More important is to avoid ANY precise government rules whenever possible. Let individual people come to mutually agreeable solutions. the Attempt to create perfect justice is a totalitarian enterprise. Government rules should be good enough and not overreaching.”

One problem with this oversimplistic and idealistic view of today’s government is that individuals cannot ENFORCE mutually agreeable solutions without creating vigilantism or anarchy. A second problem is with the enormous disparity in resources and abilities and information between two parties striking an agreement, such as that between Enron and an individual stock purchaser. Where goliaths engage in one sided contracts to their benefit with relatively defenseless and uninformed individuals, there arises the need for a government to set rules and enforcements for those 330 million individuals so they can enjoy some parity approximating just and fair contracts with those goliaths.

And that is where democratic elections and representatives of the individuals come into play to for that government to create a level playing field, with all of the complications that arise forthwith.

The propensity for Americans to decry big government with fantasies of a simple and easy alternative way of doing things rejects the reality that grows from democratic elections and a representative republic form of government. The single greatest thing citizens can do to invest in smaller less intrusive government in the future is to demand universal standards in education based on secular and empirical curriculi. The best defense against big government is a well educated, well informed, and vested electorate. That makes citizenship burdensome and civic duty a competitive avocation to other avocations like drinking beer in front of the boob tube.

The ironic thing about democratic forms of government is that the people get the very kind of government they themselves earned and fashioned for themselves by the lifestyles and avocations they choose in their personal lives. Nothing in the way of government could be any more sophisticated or complex than democratic forms of government. Ultimately, it is not the government that fails the people, but, the people who fail their democratic form of government. As you rightly point out, the government works for, and with the assent of, the people. No truer words were spoke, nor with greater pregnant philosophy than these.

Posted by: David R. Remer at May 3, 2010 6:45 AM
Comment #300045

Th key is enforcement of existing laws. Whether is pertains to the recent mining accidents, banks and wall street, illegal problems, tax violations, or corrution in government; the laws are no good unless they are enforced and they haven’t been.

The recent move in AZ and now many other states wanting to follow suit is proof that exising laws are ignored.


“Republicans, or shall I say “country club” Republicans, such as George W. Bush clearly have been a major part of the problem”

This is exactly why the Republicans have lost in the last few elections. The left has incorrectly identified Republican losses as meaning the majority was in favor of Democrat socialist ideas. I this case the old saying, “The enemy of my enemy, is my friend”, does not apply. Just because support dropped for Republicans, it does not mean we embrace Democrats.

The TP movement is proof that Americans are trying to bring the Republicans to the right. And the TP is made up of dems, repbs, and ind.

Posted by: Beretta9 at May 3, 2010 7:14 AM
Comment #300048

baretta9, your comment is still driveling out the propaganda in opposition to facts and reality, I see. Your comment says: “The left has incorrectly identified Republican losses as meaning the majority was in favor of Democrat socialist ideas. “

The facts are, the vast majority of Americans DO NOT want to see Medicare or Social Security done away with. They want to see these programs made affordable and sustainable. A host of polls show this is true. So much for your propaganda about the majority not favoring socialist ideas.

Of course, the military is a socialist policy, as are all the regulatory agencies like the SEC, Commerce Commission, and NASA. The majority who know of these socialist programs do not believe they should be done away with. The very concept of government is a socialist idea when that government pays for itself with taxation or other mandated funding from the people or large portions of their population.

The irony is, the program the majority resents is the bank bailout initiated by Republicans, which, in fact, saved the people from years of depression, economic and psychological.

But, I know your comments will keep pushing that propagandist talking points from the Right despite the facts and reality to the contrary, if your past comments are any indication. Repeating sophist talking points is easier than making a logical and rational argument. But, always backfires in the end. “You can fool all the people some of the time, some of the people all the time, but, you can’t fool all the people all of the time.”

As for the rest of your comment, I generally agree.

Posted by: David R. Remer at May 3, 2010 8:04 AM
Comment #300061


Calling some conservatives’ arguments “drivel” does a disservice to the discussion. People desperately WANT to believe SS and Medicare are sustainable, though it has been obvious literally for decades that they were not for people who were willing to sit down with the numbers and recognize how 2+2 works. So, since most people really function in a wishful, semi-religious relationship with political leaders and, there has been no shortage of such shamen willing to make careers telling people what they wanted to hear, it has been easy to find leaders backing up wishful thinking on these great programs.

The truth is, though, they are now and always have been programs where the money taken from a lot of people went to pay the expenses of a few. (just like a Ponzi scheme…) Now the few are becoming many and the many are rapidly becoming far fewer. It’s that simple. It always was that simple. I knew it when I was 25 years old during the early stages of the “fix” of Social Security back in the ’80s.

How do we fix such a situation? Start by telling the truth to the public whose votes must be directed toward making laws founded in reality, rather than the fantasy we’ve lived in my whole adult life. But we must also accept that centralized solutions will always be grossly imperfect and susceptible to abuse by those who see them as a path to power.

Posted by: Lee Jamison at May 3, 2010 3:01 PM
Comment #300063

Lee, Medicare was collected from many and paid to smaller number of people, largely, those in great need of medical attention, which generous American hearts have been willing to fulfill.

Social Security on the other hand, you have WRONG ENTIRELY on this point. Everyone who paid into S.S. would collect on it if they lived into retirement. NO collect from many and give to a few, which would have made the program solvent indefinitely, as an insurance against poverty in retirement and means tested for benefits.

As for your propaganda about collecting from many and spending it on a few, that my friend is a practice dating back to the George Washington Administration. When the government spends, it collects from many, and pays a few, regardless of whether is the military, Interstate Highway system, FAA, the SEC, or the FDIC or National Endowment for the Arts. That practice is more than 230 years old, and your propaganda implying this is the province of Democrats more than Republicans, or that it is partisan in anyway, simply doesn’t wash against history and reality.

Take the partisan blinders off your comments and let truth and reality be reflected in them. Collecting from many and paying a few, is what ALL governments HAVE to do, to be a government. Hurricane hits, aid money from taxation of the many is delivered to providers of the hurricane recovery agents and people. From the Pony Express to NASA, this is the reality of how our and all governments exist and function. Stop criticizing the Sun for being so bright. It is by definition bright. Criticizing it, won’t make the Sun any dimmer, or change the paradigm for how our government collects revenues from many and spends it on much smaller numbers of people.

Reality is what is. To say reality should not be reality is purely partisan sophistry, regardless of which affiliation side one makes such nonsensical arguments from.

Posted by: David R. Remer at May 3, 2010 3:35 PM
Comment #300064

tom humes-
If you want to engage in content free argument, be my guest. I think it’s far too soon to equivocate between the parties, because the parties have not had equal power during my lifetime.

I am not going to claim that Democrats hold no blame, but we’re not able to chose “none of the above” and get it in a Democracy, and so far the folks leading the particular charges on policy that lead us to where we are now were not the Democrats.

It’s not merely a matter of who’s to blame, but rather who I can change, who I can influence to deal with the problem. Democrats, however imperfectly, have demonstrated far more willingness to depart from the path that got us to this terrible point than Republicans. When scientists talk, they’re listening, more than they’re spouting back industry talking points in return.

If you want to simply believe that the Republicans failed conservativism, rather than conservatism failing us, you go and believe that. But as it is practiced now, today’s conservatism serves to do little more than blind people to real problems and real solutions with rhetoric.

Posted by: Stephen Daugherty at May 3, 2010 3:39 PM
Comment #300065

If conservativism is failing, why is it a growing movenment in America?

I hate to say this, but SS and Medicare ARE going down the tubes. They will go broke and if Obamacare stands as is, it will go the same way as SS and Medicare. Facts are facts, sorry.

Wasn’t there a few counties in Texas a few years back, that opted out of SS and as a result, their retirement replacement plan was a success?

Why wouldn’t this have worked nation wide?

Posted by: Beretta9 at May 3, 2010 4:05 PM
Comment #300066

Lee Jamison-
I think you vastly underestimate just how cynical this whole “tea party” redemption of the right is. Some of the same folks who helped bring the 1994 group in, with its corruption, are the same people trying to get people to gamble once again on the Republicans this time around. You have Dick Armey leading one of the major groups supporting the Tea Parties, for crying out loud.

You want to know why Tea Partisans have such confused policy positions? It’s pretty simple: it’s George Bush Conservatism. They’re simply continuing the kind of policies that Bush did, but in such a way that they can claim they’re not supporting his weak-water conservatism, or his Rovian political tactics. It’s a bloody smokescreen that plays upon the continuing insularity of the Republican audience, their unwillingness to trust sources that aren’t in the conservative media.

Posted by: Stephen Daugherty at May 3, 2010 4:06 PM
Comment #300068


If conservativism is failing, why is it a growing movenment in America?

You know what would be neat? Providing evidence to back the claim that it’s actually growing. Providing evidence that it’s long term growth, that the next generations going to be more conservative.

Little hint: The Demographics don’t work in your favor.

I hate to say this, but SS and Medicare ARE going down the tubes. They will go broke and if Obamacare stands as is, it will go the same way as SS and Medicare. Facts are facts, sorry.

Facts are facts. But a statement about the future, especially one lacking in any details supporting you, is not a fact. Facts are provable things in the here and now, not perpetually predictions, based on ideological premises.

Wasn’t there a few counties in Texas a few years back, that opted out of SS and as a result, their retirement replacement plan was a success?

The word you’re looking for is “Weren’t there” Sorry to be a grammar nerd about it, but it’s a rather awkward mistake. Now the question here, getting back to the subject, is whether a town can actually opt out of a federal program, and how exactly it would go about doing that. Since you see fit not to provide a source, I looked it up, and as it turns out, three Texas counties did indeed opt out, and may have done better.

However, the loophole is now closed, and the recent economic crisis highlights one of the chief concerns with such plans, as people whose retirement savings were gutted can tell you.

The point of Social Security has never been rate of return. It’s not called Social Jackpot. The point is that it will be there, and contrary to GOP rhetoric, it will be there. The worst that happens under the worst of economic conditions is benefits get cut to 75% at some point very distant in the future.

Medicares the most pressing concern, but much of the reason its a pressing concern are healthcare costs that are afflicting private industry and private plans. It’s a general sustainability problem, and the Democrats at least have done something about it.

Posted by: Stephen Daugherty at May 3, 2010 4:34 PM
Comment #300070

You know Stephen, if you look close, you may find more grammatical errors in my speech. That’s why I’m just a stupid redneck and your a college professor. Thank you for the English lesson.

Back to the main thought: like I said Medicare is broke and SS is going down the tubes. A 75% cut don’t sound like much, unless your part of the one’s living on SS.

The only way you can continue to support these broken socialist programs and say they are solvent is to continue to depend on the taxpayers to keep them afloat.

Posted by: Beretta9 at May 3, 2010 4:51 PM
Comment #300071

Well, ahm a Texian, and cud jes as easy hihd behind my Suthun accint, if I wanted to make up excuses for myself.

I’d be embarrassed to. Redneck, right? Ever heard Dr. Red Duke talk? You can be smart and a redneck. I’m just sick of people hiding behind that.

You say things for effect. I say things for meaning. I’ll tell you that the trust fund solvency issue is an issue based on the worst case scenario of a 70 year forecast. Do you know how difficult it is to get a decade long forecast, much less one that long right? Bush cherry-picked to get his proposals some support.

But worse than that, if you kept up, you would have eventually heard him admit that privatizing things wouldn’t extend Social Security solvency one day. For a trillion, two trillion dollar price tag, that’s a whole lot of “thanks for nothing”.

We extended Medicare solvency for nearly another decade.

You can talk about what heroes you are on the fiscal front. Democrats, pushed by political pressure from both sides, will actually get things done.

Posted by: Stephen Daugherty at May 3, 2010 5:50 PM
Comment #300077

I do agree with you about getting things done. Unfortunatley they will be the wrong things. Like govt growth. Spending money we don’t have. Forcing people to purchase goods and services they don’t want. Raising taxes. Lying, lying, lying about anything and everything. Now that is a real accomplishment. The achievement of getting things done in the wrong manner is not limited to Dimocrats. The lone admitted socialist, independents, and republicans are all in the pot. This should be called the World Series of Government Growth. The champs will be the same ones who won the last time and the time before.

Posted by: tom humes at May 4, 2010 12:14 AM
Comment #300087

tom humes-
I don’t understand this obsession with government growth. I can understand wanting to keep it as small and efficient as possible, and under normal circumstances, keeping it paid for with current tax dollars.

But it seems like folks on the Right simply ignore every other big problem for the sake of dealing with this abstract. We end up letting all kinds of problem get worse, so we can deal with this one issue, which to me is so frustratingly vague as to be useless.

I mean, can you even give me a clear value on what size government should be, or is this principle just going to get applied to the point of absurdity?

We have epic oil spills in the gulf, an economy that’s lost about 2 trillion dollars in wealth, a military mired in two wars overseas, the threat of terrorism here, etc, and the worst problem, the primary problem you think of is “Government’s too big?”

Frankly, I think that’s a secondary problem, one that’s best dealt with on a small scale in policy, balanced with the ability of government to function properly. Otherwise, it’s basically a blind quest to shrink government just because somebody in 1790 could get by with it that way. We’re not the nation we once were, and we can’t be governed the way we once were.

Posted by: Stephen Daugherty at May 4, 2010 11:04 AM
Comment #300090

In numbers, there is over 1 agency, bureau, commission, or department per congressional member in the federal government. Most of them are over areas not given to Congressional authority. That would make them un-constitutional. Those un-constitutional ones should be di-banded and save the taxpayers the money and control over them that at the present time exists.

Posted by: tom humes at May 4, 2010 12:21 PM
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