The Sage Forge

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. 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.



Lee Jamison may be reached for comment at lee@leejamison.com.