The Jurisprudence of Rugby
Rules, Laws and Principles??
In 2017 I wrote of the imperialism of a rugby referee — no doubt exaggerated by a recent game in which I felt aggrieved by the officiating. In so writing, I dramatized the positions on the field as though they were legal actors in the courtroom. The scrum-half barristers; the coaching solicitors; the arbitration of a captain speaking to the ‘judge’ (the referee). But quite poignantly I opened with ‘Rugby is governed by laws; not rules.’ A question-begging statement in dire need of explanation that even I don’t think I could have answered eloquently at the time. 2 years of law school later and I’m reading Dworkin distinguish rules from principles through the vehicle of a baseball game in his early critique of H.L.A. Hart’s Concept of Law. It seems the sporting field is an apt microcosm for jurisprudence. So, what is a rugby law versus a normal rule?
As in any jurisprudential playing field, the landscape must be formulated with initial linguistic semantics. It is true that rugby calls its presiding guidelines ‘laws’ and, as will become clear, this is distinguishable from ‘rules’, but not separable as I made it seem in that article. Rules are everywhere: no talking in the library; don’t feed the wild animals; wear a damn mask. Add someone holding a gun to your head telling you to comply and John Austin might just call it law. But the word ‘rule’ can take almost any form — the word itself is an umbrella term when used without qualification. The prefix ‘legal’ warps its scope. The relationship between ‘legal rules’ and ‘law’ can be pictured as a Venn diagram, the law encompassing the whole circle of ‘legal rules.’ It is this relationship, specifically the periphery of the ‘law’ circle, that I alluded to in my grand opening statement 3 years ago. The term that fills this outer circle is ‘principles.’ If we were to speak literally about the law, other words come into play such as ‘administration’, ‘executive action’, ‘practicalities’ which account for the less academically exciting aspects of day-to-day law-making and executing. For our purposes, we can remain on the rugby field, and stick to rugby rules and rugby principles which together form the rugby law.
The Dworkian rule and principle dichotomy may seem unappealing to some seeking to answer ‘what is law?’ given he muddies the waters of Hart’s clarity with added (and needed) nuance. But the distinction itself is a simple one. A rule tells you exactly what to do; a principle guides you in a direction but does not give an exact answer. Don’t slap a stranger — that is a rule; the preservation of human health — that is a principle. That the principle here may logically guide the slapper to be punished just as the rule would, does not alter their differing approach — the principle is wider in application and would be utilised differently both by the governed and the government who implement it. We can employ three differentiating criteria:
1. Conclusiveness: a rule gives specific circumstances and an outcome;
2. Inability to conflict: a rule cannot conflict with another rule; it either applies or it doesn’t. Two principles can (and often are in law) used in a balancing act against one another; hence
3. Dimension of weight: principles carry weight — the advancement of technology will probably subside to the preservation of life. The latter is carries a normative and common-sensical weight that the former does not (call this a link to morality at your own will)
So, what of rugby laws? There exists the elucidation of the laws in a neat, 21-section, online document by World Rugby. Laid out much like a statute, it proceeds to go through each detail of the game, sections and subsections labelled appropriately, with kinks constantly ironed out over its lifespan. Off the bat, we may ask why these are not all ‘rules’ under our definition. The answer is twofold: ambiguous rules coupled with ‘principle’ language gives rise to principles by effect; and principles, such as the need for a fair fight, hang over the match to fill in the gaps of human unpredictability, especially given a referee cannot consult this substantial document each time something happens on the field — he is oft-guided by principles as secondary law. We shall look at these in turn:
Principles by Effect
A rule that employs the ‘principle’ vernacular may become a principle by effect. That is to say words that require a degree of discretion — ‘fair’ or ‘reasonable’ or, more plainly, ‘at the discretion of the referee’ — import the notions of principle by leaving room for the referee to decide (using these principles). Discretion itself is a hotly contested notion in law, but we can merely use a definition that anywhere in the rugby laws that require the ref to make an assessment beyond the written text, not of the written text (because there is always a level of discretion in the most simple rules — often just because the ref’s eyesight was obscured and he must determine what happened on incomplete facts). So, let’s find some examples.
The most obvious is that of the advantage law. It is headlined in capital letters ‘PRINCIPLE’ and lays out the open-ended principle that
“If a team gains an advantage following an infringement by their opponents, the referee may allow play to continue in an effort to keep the game flowing.”
It comes with some hints that an advantage ‘may be tactical, territorial, or a combination of the two’ and ‘must be clear and real’. There’s a whole lot of discretion going on here. The first is the necessary determination of when a team has ‘gained an advantage’ — what does this mean? The most that can be narrowed down is that it is tactical or territorial. Suddenly the ref must appreciate and adjudicate the tactics of the game or determine what level of territory constitutes an advantage after an infringement. Moreover, the rules determining when the advantage ends look much the same: ‘when the referee deems… [so and so to happen]”. The referee has a lot of scope throughout these rule. The scope of this Principle by Effect is often why the first adaptation players make is ‘this ref gives long advantages, look to [insert tactic here]’ — because the refs are allowed to develop a wide range of interpretations.
More hidden levels of discretion (and discretion of a lesser degree) is found when only a couple words of principle are used. Take the penalty offences of a ruck:
1. Players must not:
a. Pick the ball up with their legs.
b. Intentionally collapse a ruck or jump on top of it.
c. Intentionally step on another player.
d. Fall over the ball as it is coming out of a ruck.
e. Kick, or attempt to kick, the ball out of a ruck.
Here, only the word ‘intentionally’ imports a level of discretion into the decision-making of the referee. Within a court setting, this investigation of intention would take the shape of the infamous ‘objective’ test of whether their actions can reasonably be seen to display an intention — the delicate tip-toe away from complete subjectivity (trying to pry open the mind of the perpetrator). Perhaps, too, with help from the man on the Clapham omnibus, a referee will have to deem whether the actions of a player signal intent. There is a level of discretion, but it is constrained to the words of the rule.
These hidden levels of discretion amount to a principle by effect insofar as a referee will fall on secondary principles (below) to adjudicate them. The test of intention may sometimes reflect a test of malice — perhaps the ref deems the act too evil as to not be intended (stamping in the ruck comes to mind). Similarly, a player does not commit an intentional knock-on if there was a ‘reasonable expectation’ he may get the ball — this may be guided by the momentum of play and a determination of whether it was a ‘professional foul’ to halt the other side’s progress. As long as there is inbuilt discretion in the laws there is scope for guiding ‘principles’ to fill in the gaps.
Side note:
Have you ever seen a referee give a penalty at the scrum and wondered what on earth even happened there? I’ve been a scrum-half all my life and I could not tell you if my life depended on it. You’ll be happy to hear that the scrum section is one of the longest, at 39 sub-sections and 18 accompanying videos, yet the rules ‘during the scrum’ are exhausted at just 11 of these — and I am none the wiser. Honestly, I was searching for some ambiguous rule that I could use as an example of a principle by effect and merely found what I already knew — a skeleton of rules about the front row pushing straight and a feeling of absence of detail. I don’t feel it would be erroneous to say that the overriding principle here is: ‘the stronger scrum should prevail’ — but this isn’t clear in the rules. Hence, this is perhaps better reflected as a version of principle by ‘secondary law’.
Principles as Secondary Law
Principles can reside over a match as a normative prevailing wind, gusting the referee in one direction or another — a secondary law on top of the base. The very idea of secondary law (I realise a problematic term for the jurisprudes among you — ignore all previous conceptions of this term) is an odd one to comprehend given the rules are quite clearly all there in black and white. But, they’re not. Even all of the rugby ‘rules’ are not there. World Rugby constantly provides an investigative role and produces added regulations with amending schedules that can wrap around the main body of law (such as concussion protocols) or simply slot in where the laws call for it (the section on players’ attire simply points to Regulation 12 of World Rugby).
A number of these broad-brush principles can be drawn from the text itself. Take the advantage rule and its wide discretion: is there a higher principle we might decipher? Ex turpi causa non oritur action — ‘No man may profit from his own wrong’. A common legal maxim that underwrites this advantage rule. The other team commits a penalty and the game does not stop if the non-offending team are on the front foot. ‘Professional fouls’ that put a stop to the other team’s momentum are limited by this principle that will guide the referee in numerous situations but most notably in the advantage rule.
Other principles can either be derived from the schedules of World Rugby or through common sense. The concussion protocols, for example, portray the principle to protect the players, but this is also common sense. Indeed, the foul play rules enumerate this principle into some detail, but it carries across to every aspect of the game — not just where players lash out and try to inflict harm. This probably explains some of the scrum resets and penalties — a lot of strain is going through the necks of the front row so minor infringements can make it dangerous. Another principle I mentioned was that of fairness — the procedural principle that like cases should be treated alike. With the levels of discretion available to the ref, it is conceivable that he may give long advantages to one team and none to another — it’s within the ‘rules’ per se. But he is constrained by the principle of fairness that guides him to treat the teams as equally as he can.
Conclusion
I’m sure there are more principles to this game, and plenty more rules worth discussing that haven’t arisen here. The point is that both exist within the laws of rugby. In general: principles tell you to go North, rules give coordinates. But as we have seen, principles wrap around and are woven into the rules more subtly than this simple distinction. They operate together, with principles guiding the application of rules and vice versa. What can be said is that there is a lot of scope for games to adjudicated differently — such is the legal discretion afforded to the referee, but that they are ‘imperial’ as I once stated is false. They are never beyond the principles and rules that make up the law…
(I mean I guess they can completely disregard the laws entirely, but I suppose the angry parents on the sidelines keep them in check).
This is all, of course, hypothetically speaking.
