This is the kind of thing that gives philosophy a bad name. Tell it to the Irish soccer team after Thierry Henry’s blatant handball kept them out of the last World Cup. “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 football by transgressing the rules that constitute the game.”
Of course France won that match. Indeed they did so as a direct result of Henry’s cheating. 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 by shooting the ref and carrying the ball over the goal line.
Let’s start with the difference between the rules of a game and the code of fair play. It’s not hard to think of examples where breaking the rules is perfectly acceptable. In basketball, 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 stop them keeping the ball until the final whistle. So you foul them, halt the clock, and hope that you can beat their score once you get the ball back after their free shots. 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.
There are also converse cases, where you can violate a 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. Trevor Chappell opted to roll the ball underarm at the batsman, making a six physically impossible. While this was allowed by the laws of cricket, it was universally condemned as against the spirit of the game. (The Kiwi prime minister 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.")
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 so improving your lie 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 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 isn’t also a clear moral code. It may be all right to take a red card to stop your opponent scoring, but it’s not all right to take one for a two-footed tackle that breaks his leg. Play-acting in order to get an opponent sent off is widely frowned upon. When one side kicks the ball out because someone is injured, everybody respect 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 (remember the saintly captain Willie John McBride’s decree on the 1974 Lions tour—“let’s get our retaliation in first”). On the other hand, disagreeing with the referee is a decided no-no (this season the French coach voluntarily dropped his star forward Louis Picamoles for mildly mocking a referee’s decision). In cricket, it has become acceptable to “sledge” batsmen to distract them, but everybody shuts up once the bowler begins his run-up. The laws allow you to run out batsmen who are backing up, but it just isn’t cricket not to warn them first.
Still, as I said, there are clearly some limits beyond which you aren’t playing any more. 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 ref says, though, you’ve abandoned the game. You can have a game of soccer with innumerable and immoral fouls—we need only recall the last World Cup final—but you can’t have one where the players don’t listen when the ref blows his whistle.
Of course, they also recognize that even legitimate democratic states 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 side we have the general moral duty to obey the law, and on the other the more specific moral duty not to discriminate unjustly, say, and somehow we need to resolve the two, perhaps by campaigning to get the law changed.
I wonder if the political philosophers aren’t missing a trick here. The sporting analogy suggests an interesting option. Maybe 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.
In his classic The Concept of Law (1961), H.L.A. Hart distinguished between an “external” and an “internal” attitude to the law. Those who adopt the “external” attitude simply view laws as a source of potential penalties, and will happily break them as long as the expected fine or prison term is low enough, just as a footballer might calculate whether the cost of a red card in the first half is worth the gain of preventing a goal. The “internal” attitude, by contrast, is a matter of embracing the law as part of your own value system, and so viewing infractions as morally reprehensible in themselves. Hart’s view, and that of nearly all subsequent commentators, is that a healthy polity depends on the internal attitude, and that a purely external attitude to the law would be destructive of civil society.
What if someone murders his wife and accepts the prison term that follows, figuring that a few years in the clink is a small price to pay 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 the rules and morality. Sometimes breaking the rules also violates standards of fair play, like two-footed tackles. But that’s not 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.
The analogy isn’t perfect. In the sporting case, it’s entirely normal for the rules and morality to diverge, given that the rules standardly impose arbitrary constraints on matters of no moral significance. But in the political sphere we generally don’t want laws that require people to do things that aren’t also morally required. Still, the basic point remains. When you 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 oughtn’t to commit murder, even if there were no law against it. And conversely, when the legislature makes a mistake, and legally prohibits me from doing things that aren’t wrong, I don’t see that I have any moral duty to obey. I’ll listen to the ref all right--but I’m quite ready to break the rules, if my sense of fair play allows it.