“Let ‘em Play” — Day 3: Of Constitutive and Regulative Rules

At first blush, we might suppose that the analysis I provided yesterday applies, mutatis mutandis, to foot faults in tennis and therefore that tennis officials should call foot faults less strictly at crunch time. But this conclusion would be premature. It could be that foot faults in tennis differ from fouls and similar infractions in basketball, football and comparable sports in ways that make a difference.

I’ll explain today why I believe that foot faults do differ in a way that matters. Tomorrow I’ll argue that temporal variance in their enforcement might nonetheless be defensible on alternate grounds.  This afternoon I will respond to some of the many excellent comments already posted by VC readers.

The analysis I presented yesterday for temporal variance in the enforcement of penalties for fouls like those committed in basketball depended upon the claim that there are times when it might better serve the objectives of competitive sports to refrain from enforcing a penalty despite the occurrence of an infraction. That’s because the competitive costs of an infraction and of the sanction or penalty that it begets are both temporally variant and the latter can become, at game’s end, very much greater than the former.

Yet assessing the competitive costs of these two things – the infraction and the sanction – seems impossible in some cases. Take balls and strikes in baseball. The denomination of a pitch as a “ball” is not properly conceptualized as the penalty for an infraction; the concepts of infraction and penalty just don’t apply here.

That not all undesired consequences that attach to nonconformity with the dictates of a rule are sanctions imposed for infractions was a central claim upon which Hart relied when critiquing the Austinian command theory of law.

Most of the rules of the criminal law impose duties and threaten sanctions for their violation. But other legal rules, like those specifying the conditions for valid wills or contracts, are of a different sort. These, Hart proposed, are “power-conferring rules” – rules that (somewhat simplified) provide that “if you wish to do this, this is the way to do it.” In the case of rules that impose a duty, he explained, “we can distinguish clearly the rule prohibiting certain behaviour from the provision for penalties to be exacted if the rule is broken, and suppose the first to exist without the latter. We can, in a sense, subtract the sanction and still leave an intelligible standard of behaviour which it is designed to maintain.”

But the distinction between the rule and the sanction is not intelligible in the case of power-conferring rules. It makes sense to say “do not kill” even when we leave off the part about what happens if you do. In contrast, we know we’re leaving something critical out of the picture if we say “get two witnesses” but don’t explain that the will will be invalid otherwise. The power-conferring/duty-imposing distinction is, at a minimum, a close cousin to another distinction between rule types made famous by John Searle: the distinction between constitutive and regulative rules.

The Hartian analysis of power-conferring rules helps to explain why balls and strikes in baseball feel very different from the infractions I have discussed in basketball. In the case of the latter, we can sensibly ask both whether some type of contact ought to be proscribed (thus denominated as a “foul”), and, in addition, whether, if so, the penalty attached to commission of the foul – two free throws, say, or ten yards – is too great (or too small).

But every pitch is either a ball or a strike. The logical consequence of its being outside the strike zone is that it is a ball. While we can sensibly ask whether the strike zone is too small (or too large), or whether the number of balls that constitutes a walk is too great (or too small), or whether any number of balls should result in the award of a base, it seems nonsense to ask whether a pitch’s being a ball is too high a price for its having narrowly missed the strike zone: that the pitch was a ball is just what it means for its not having been a strike.

In short, balls and strikes are not proper candidates for temporal variance on the analysis I sketched yesterday because (1) temporal variance depends upon the widening of a gap between the competitive cost of an infraction and the competitive cost of the penalty it incurs, but (2) there is no such gap between nonconformity with a power-conferring rule and the consequences that attach, and (3) the rules governing balls and strikes are power-conferring rules (or constitutive rules, or something of this sort).

If this is right, the question becomes whether the rules governing foot faults in tennis are power-conferring (or constitutive) as opposed to duty-imposing (or regulative). For want of space, I’ll just assert that the former construal seems significantly more plausible. In order to successfully or “validly” put the ball into play, thus giving oneself an opportunity to win the point, the server must do several things: (1) start behind the baseline, (2) strike the ball before stepping on or over the baseline, and (3) by striking the ball, cause it to land in the service court diagonally opposite.

We might say that these are three components of the rule that defines a valid serve. A failure on any of these three grounds is just a failure to perfect the power conferred upon the server; none is a violation or an infraction.

Let’s suppose that’s correct. Even if so, here’s the puzzling thing. If foot faults, just like ordinary “zone” faults (i.e., the failure to serve the ball into the service box), are governed by power-conferring rules, and if temporal variance could be defended only on the analysis developed to this point, then we should expect foot faults to be immune from temporal variance just as surely as are zone faults. But widespread intuitions are more equivocal.

I have not run across anybody who is tempted by temporal variance for zone faults. If, facing match point, the server hits a second service wide by a smidgen, well them’s the breaks and that’s the match. And yet some folks (McEnroe, for example) believe that foot faults should be enforced with temporal variance. Just as revealingly, many more feel that the temporal variance of foot faults is, at the least, more plausible, less obviously mistaken.
The fact that even those who resist temporal variance for foot faults do not feel about foot faults quite as they do about zone faults – the fact that many of them at least feel the tug of temporal variance – requires explanation even if we end up concluding that, all things considered, foot faults should be enforced invariantly. That fact is inexplicable if the argument for temporal variance depends upon the widening of a gap between infraction and penalty and if faults aren’t penalties for infractions.

I favor our taking widespread intuitions seriously. Doing so invites us to consider whether the analysis supplied thus far furnishes the only sound basis for temporal variance. Perhaps it doesn’t. Perhaps temporal variance for some power-conferring (or constitutive) rules might be warranted on other (possibly related) grounds. That’s my topic for tomorrow.