Cricket and the Law

The Man in White is Always Right

David Fraser

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135773373
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Cricket, law and the meaning of life...

In a readable, informed and absorbing discussion of cricket's defining controversies – bodyline, chucking, ball-tampering, sledging, walking and the use of technology, among many others – David Fraser explores the ambiguities of law and social order in cricket.

Cricket and the Law charts the interrelationship between cricket and legal theory – between the law of the game and the law of our lives – and demonstrates how cricket's cultural conventions can escape the confines of the game to carry far broader social meanings.

This engaging study will be enjoyed by lawyers, students of culture and cricket lovers everywhere.

1
Introduction

‘It's not cricket’. Everyone knows the meaning of these three words. They embody the ideals of fair play, ‘gentlemanly’ behaviour, and ‘good sportsmanship’. What I shall attempt to demonstrate in the rest of this book, however, is that these three words, and all they embody, is in reality, subject to enormous doubt, ambiguity, stress and struggle. While everyone might know what the phrase means at a level of generality, once we turn to the specifics of what might be the actual rules and practices contained in the ideal of ‘fair play’, in this context, the spirit of the game, or more specifically still, of ‘cricket’, things become much more complicated. As any good lawyer will tell you, language is full of ambiguity. Indeed, lawyers and judges, to the frustration of the general public, often seem to thrive on making ambiguous that which appears to be perfectly clear.

At some level, that is indeed the project of this book. I want to explore the ambiguities, uncertainties, and contradictions of cricket and of law. The ideal of the uncluttered contest between bat and ball, of willow and leather, which gives to cricket its place in the mythology of England and of Empire, is in fact, and in law, as all of us who love the game in fact must recognize, far from its lived reality. What makes this interesting from a number of perspectives, including perhaps the unexpected angle of legal theory, is that cricket can, and I argue throughout does, offer us exciting lessons about the nature and possibilities inherent in ambiguity and doubt. Indeed, cricket itself, in its laws and practices embodies almost from the beginning these conflicts and contradictions. The Laws of Cricket make explicit reference to the ‘spirit of the game’, which must, at some level at least, be deemed to exceed, or to be outside of, the strict and literal text of the statute.¹ In what follows I will explore in particular contexts three levels of interpretive and practical conflict—the contradictions between and among various readings of the Laws themselves; contradictions, real and apparent between the Laws and the ‘spirit of the game’; and finally, the disagreements about and around the content of our understandings of exactly what constitutes the ‘spirit of the game’.

In all of this, I shall attempt to set out the ways in which these interpretive practices and disputes embody and reflect debates within and about law. Law and cricket are, I believe, simply different arenas in which struggles over meanings, interpretations, applications of rules by adjudicators, judges and umpires in these instances, engage us politically, ideologically and socially. For example, debates about LBW decisions are ‘the same’ as debates about causation in tort or criminal law; debates about dissent on the field are debates about contempt and respect for legal institutions in a democracy. And sometimes, debates around and about cricket are in reality, debates about the very existence of law and democracy. Recent controversies about the existence of corruption and bribery at the highest levels of the game have brought these concerns to the fore of discussions about the rule of law in cricket. Hansie Cronje has provided us with the possibility for some of the greatest jurisprudential inquiries of the new millennium.

The Jurisprudence of Hansie Cronje

My friend and colleague Allan Hutchinson has argued persuasively in his recent book on judging, not just that law is a game of adjudication, but that the core element of all game playing, including law, is ‘good faith’. Good faith is at the heart of the game of law and adjudication which is a practice at once free and constrained. It is the understanding and deployment of good faith that we encounter and play with the vital Hutchinsonian distinction between ‘anything goes’ and ‘anything might go’ in judging. Thus, ‘Accordingly, good faith can be thought of as acting in line with the spirit of the enterprise in which one is engaged and respecting other people's expectations about what is supposed to happen.’²

This insight offers us the constraining limit which operates between and among the apparent contradictions of law and the spirit of the game which I discuss in the subsequent chapters of the book. All the conflicts will be, must be, can only be solved, within a framework in which the expectations of the participants in the game—law or cricket—about the definitional content of the game itself, are met. Judges, plaintiffs, defendants, umpires, spectators, players, all share expectations that certain things will occur within certain, yet often unspecified limitations. Judges must decide on the basis of accepted practices and discourses. They must adjudicate, even when in the process of that adjudication, they must call upon some uncertain criteria, for example ‘public policy’. They may not, they must not, simply ‘flip a coin’, they must decide and they must decide as judges. It is when these limitations, however uncertain, on the judicial function, are violated, when good faith ceases to exist, that at some level, we are no longer playing the game. Throughout this book, I want to explore these boundaries at the two levels of playing the game and not playing the game, of law and not law, of the point at which violation of the Laws becomes at a true level, not cricket.

This is what happened, perhaps, in South Africa in early 2000, when England met the host country in the fifth Test at Centurion Park. When they visited South Africa for this Test match series, as usual, England lost. But they did not lose everything. In the fifth Test, at Centurion Park in Pretoria, England actually won a game. But this is in reality and in law of secondary importance. What is vital here is the way in which they won, for quite literally, the very existence of cricket and the law hang in the balance.

A normal Test match will be played, if it lasts the distance, over five days. Each team will bat, if required, in each of its two innings until its 10 wickets have fallen. Thus, as we know, the winner is the team which scores more total runs than the other side while managing to take the 20 opposition wickets. The Laws of Cricket allow a captain to ‘declare’ the team's innings closed before all wickets have been lost. Normally this will occur when a team feels it has enough runs to win the game and wishes to leave itself enough time to bowl the other team out in order to win the match. However, this is not what happened at Centurion Park.

There, almost all of the first four days of play had been lost due to rain. In the normal course of events, the batting side, the South Africans in this case, would have batted on day five until it became obvious under the Laws that no result was possible and the match would have ended in the typical dull sort of draw for which English cricket in particular has unfortunately been noted. However, the South African captain, Hansie Cronje, met with the England captain Nasser Hussain, at breakfast before the final day's play and proposed a novel, even revolutionary, solution. Cronje would ‘declare’ his innings closed, after setting a score which England had a reasonable, but far from certain, chance to overcome in its second innings. In return, England would ‘declare’ their first innings without batting. In other words, the Test would be played to its full in one day instead of five, an exciting run chase would be guaranteed for the fans instead of the predictable batting practice. The ‘spirit of the game’ would triumph, as the recent trend of captains trying for a ‘result’, in other words a win or a loss, to go down fighting etc., would be carried out by the two sides here. Hussain agreed. South Africa set a target and England won in the last over of an exciting day's play.

Centurion Park was the first time in the history of Test cricket that a side had ‘declared’ its innings without batting. For the jurisprudential traditionalists, this constituted a ‘forfeiture’, rather than a declaration. Under the Laws in effect at the time, they had a good point. A strict reading of the Laws would indicate that such an act by Hussain was ‘illegal’. Under Law 14(1) and (2) of the 1980 Code, it appears to be quite clear that

1. Time of Declaration
The Captain of the batting side may declare an innings closed at any time during a match irrespective of its duration.

2. Forfeiture of Second Innings
A Captain may forfeit his second innings, provided his decision to do so is notified to the opposing Captain and Umpires in sufficient time to allow 7 minutes rolling of the pitch.

Law 12 added that a match ‘shall be of one or two innings according to the agreement of the sides prior to play’ and Law 15 of the 1980 Code indicated that

1. Call of Play
At the start of each innings and of each day's play and on the resumption of play after any interval or interruption the Umpire at the Bowler's end shall call ‘play’.

Reading these provisions of the Laws in force at the time, it would seem clear that Hussain's decision not to bat at all in England's first innings constituted a ‘forfeiture’, rather than a ‘declaration’. An innings can be declared ‘closed’ under these provisions only ‘at any time’ during the match. If there is to be a difference between a ‘declaration’ and a ‘forfeiture’ on these textual provisions, it must be that a declaration can only take place once play has started by the umpire calling ‘play’. Not batting at all, a captain cannot close that which has not already been opened. Since the ‘forfeiture’ provision of the 1980 Code applied only to a second innings, Nasser Hussain acted illegally in forfeiting his first innings. This is the position of former Test umpire Don Oslear who declared therefore that

As a consequence, the innings in progress at close of play on the final day was England's first innings. Therefore the real result of the match was not a ‘Victory’ for England but a draw.³

Oslear was joined by at least two former Test umpires from Australia, Len King and Robin Bailhache in condemning the illegality of the ‘declaration’. King referred to the action as a ‘farce’ and concurred with Oslear that it should not have been possible ‘according to the letter of the law’.⁴

For others, in the majority it would appear, the agreement between the captains was cricket at its finest. This was not corruption. This was not tainted by a fundamental illegality. There was no absolute nullity contaminating Hussain's ‘declaration’. Instead we must characterize the captains’ agreement as competition in the best traditions of the spirit of the game. A result was, if not guaranteed, at least on the cards, but the result depended purely on England's ability to score the runs against a South African side bent on preventing them from doing so. In other words, there would be a real game of cricket in which, as Allan Hutchinson would put it, anything might go.

Christopher Martin-Jenkins declared that while there might be some room for ‘legal’ debate over the distinction between a ‘forfeiture’ (illegal) and a ‘declaration’ (legal), the two sides played a game of cricket, the fans saw a game of cricket, and the umpires rendered decisions within the context of a game of Test match cricket. He wrote:

Traditional sportsmanship often seems to be under threat from the exaggerated aggression of those playing the game for increasingly high financial stakes. The events of yesterday can have only been good for the spirit of the game.⁵

He added

Initiative and a sense of public responsibility triumphed over the kind of dog-in-the-manger attitude that sometimes gives cricket a bad name. The result was an unexpectedly tense, intense and downright thrilling conclusion to a Test match that had threatened to meander away meaninglessly.⁶

For another commentator, writing with the hyperbole often associated with cricket, the game was a triumph of the human spirit.

In any case, cricket was treated respectfully by the captains. Nothing untoward occurred. No rubbish was sent down, nor any easy runs given away. They did the right thing. Nature cannot be allowed to dictate terms. Man is not so woefully short of imagination nor Test cricket so insufferably serious that a fair contest cannot be produced when time is tight.⁷

The captains acted in the spirit of the game, for which after all, they were responsible under the Laws in force. Law 42(1) stated

The Captains are responsible at all times for ensuring that play is conducted within the spirit of the game as well as within the Laws.

Law 42(2) added that

The Umpires are the sole judges of fair and unfair play.⁸

The umpires offered no apparent objection to the deal struck by the captains. Both sides played cricket and England emerged the winners of a tight match. Oslear insists on a close and literal reading of the 1980 Laws and the distinction between a declaration and a forfeiture. He and others like King and Bailhache, would argue that the captains’ duty to uphold the spirit of the game must be limited and circumscribed by ‘as well as within the Laws’. If Hussain had sent out his two opening batters, waited for the umpire to call ‘play’, and then declared before a ball was bowled, Oslear would have been happy that the Laws had been obeyed. Here the umpiring fraternity seems to be adopting a strict rule formalism which ignores any idea that in such circumstances the spirit of the game, obviously shared in these circumstances by almost everyone involved on the day, should have precedence over ‘the letter of the law’. As former Australian bowler Geoff Lawson puts it, democracy in the widest sense must be the dominant interpretive norm for determining whether the ‘declaration’ was or was not ‘cricket’.

Oh, yes, the fans. What a wonderful way to remind us all that the game is not simply played for the players. Fortunately there are still leaders who think the game needs to be relevant to fans as we embark on the 21st century.

… Now Cronje and Hussain should be praised for their ‘innovation’, because it reminds us that the game belongs to its followers.⁹

We know from experience of the game of cricket that in many instances, the idea of the spirit of the game is meant not just to supplement the grundnorm of the Laws but to supersede the technical boundaries of the written regulatory provisions. Instead of an elitist and isolated view that umpires and players should always simply adhere to the formal text of the Laws, at some level at least this impulse to allow reference to the spirit of the game as an overarching interpretive norm, seeks to allow not just a greater feeling of democratic involvement in rule-making and rule-application, but to permit the game itself to adapt and grow to changing circumstances, according to the agreement and consent of the participants.

And the matter does not end there. According to the Laws of the 1980 Code in effect at the time,

Any decision as to the correctness of the scores shall be the responsibility of the Umpires.¹⁰

The umpires, in raising no objection to the Hussain ‘declaration’ and in confirming the England victory, have arguably ratified the legality of the captain's action. Once the score has been approved by the umpires as an England victory, there is legally an England victory. The only way in which Oslear can be correct is if he is arguing that the action by Hussain was what lawyers in the civil law tradition would call an absolute nullity, something which we might call void ab initio. In such a case, even the decision of the umpires to confirm the score and the result would be unable to convert an illegal act into a legal one. But this depends not on a literal reading of a clear and unambiguous legal text but on an interpretation which gives supremacy to one legal text about when a declaration may be made over another text which grants power and authority over the score to the umpires alone. The question for resolution will not be decided by some reference to legal formalism or legal positivism since it can be decided only by interpretation. The texts and interpretive strategies and positions compete for preeminence here. The winner will be the most persuasive argument and the most persuasive argument will be determined by one's particular vision of the ‘spirit of the game’. ‘Cricket’ in other words, will decide what ‘cricket’ is.

Finally, it is perhaps relevant, although in no way strictly bin...