Tuesday, 16 July 2013

The Spirit and the Letter of the Law - Lessons from Cricket

By sticking to the letter of the law Stuart Broad struck a blow for fairness and consistency.

How many of those who have so roundly criticised Stuart Broad for not "walking" when he edged a ball to first slip during the first of the Ashes test series this summer, have broken the law and not handed themselves in to the police? Have none of them driven over the speed limit without reporting their offence?

Many people routinely break the law with impunity and think nothing of it. A cricketer happens to abide by the laws of cricket and there are calls to punish him.

This hypocrisy comes, I believe, from misplaced romanticism about the spirit over the letter of the law. It seems to be a popular notion that adherence to the spirit of the law is as, if not more, important than abiding by the letter of the law. But cricketers, and citizens generally might do better to focus instead on the letter of the law.

Glorifying the spirit over the letter of the law allows for a subjective interpretation of the intentions of law-makers; it encourages a discretionary approach to the law and promotes lack of clarity and inconsistency. What, after all, is the spirit of the law and how can we all agree on what it means? Lord Bingham was surely right to describe the qualities of clarity, consistency, objectivity, and governance by law not discretion as important ingredients of the rule of law.

The rules of the game of cricket happen to be called "Laws". 

Stuart Broad was "out" caught as defined by Law 32.1, but  Law 27 provides:

1. Umpire not to give batsman out without an appeal

Neither umpire shall give a batsman out, even though he may be out under the Laws, unless appealed to by a fielder. This shall not debar a batsman who is out under any of the Laws from leaving his wicket without an appeal having been made ...

2.  Batsman dismissed

A batsman is dismissed if, either (a) he is given out by an umpire on appeal, or (b) he is out under any of the Laws and leaves his wicket as in (1) above.

9.  ...an umpire's decision ... is final.

So, Stuart Broad was not given out and was not dismissed under the letter of the laws of cricket. The laws do allow for a batsman to "walk" where the fielding side have not appealed. But he was no more obliged to give up his wicket than would Andy Murray be obliged to volunteer to replay a point won where he sees his opponent's ball landing in but it is called out and there is no appeal.

Traffic laws define when a speeding offence is committed and what the punishment should be. In cricket being dismissed is not a punishment for an offence, the rules define the combination of circumstances which lead to a dismissal. Stuart Broad was not dismissed under the rules of the game.  He was lucky that the Australians were no longer able to ask for the third umpire to review, but he acted within the letter of the law. Did he act contrary to the spirit of the law?

Paragraph 5 of the Preamble to the Laws of provides that it is against the spirit of the game:
"To dispute an umpire's decision...
To direct abusive language towards an opponent or umpire
To indulge in cheating or any sharp practice, for instance:
(a) to appeal knowing that the batsman is not out
(b) to advance towards an umpire in an aggressive manner when appealing
(c) to seek to distract an opponent either verbally or by harassment with persistent clapping or unnecessary noise under the guise of enthusiasm and motivation of one's own side."

Note that the preamble talks of the spirit of the game rather than the spirit of the law and the examples given are far more to do with general conduct on the field of play. The preamble does not refer at all to a batsman failing to walk when an appeal is made to the umpire. A distinction is made between that situation and a dishonest appeal to the umpire. Michael Holding was wrong therefore to draw a parallel between the Denesh Ramdin case and that of Stuart Broad.

Golfers are obliged to volunteer that their ball has moved when addressing it - but who else would know that the ball had moved? They have to be trusted to admit to events which lead to penalties. Test cricketers are not in the same position - two umpires watch their every move on the pitch, another on a TV screen. In any event golfers and cricketers are both obliged to abide by the letter of the law - it is just that the laws of each game place different obligations upon them.

For years the convention at test match level is that a batsman will play to the umpires' decisions. In the same match that Stuart Broad stood his ground, the Australian captain and vice-captain both awaited the umpires' decisions after similarly being caught out. If only one side or one player decides to "walk" rather than await the umpires' decisions, then there would not be an even contest.

The spirit of the law is in the eye of the beholder. Insistence on adherence to the letter of the law is fair to all and it provides for clarity, certainty and objectivity. Romanticism about the spirit of the law can lead to inconsistency and subjectivity - enemies of the rule of law.

Stuart Broad's decision not to "walk", far from cheating, ensured a fair match. His adherence to the letter of the law should be applauded.


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