Racist Language

by Miroslav Imbrišević

The recent treatment of Greg Patton, a professor of business communication at USC, made me think about my German childhood in the 1960s. In an online lecture for MBA students, Prof. Patten introduced a common filler word in Chinese, just like ‘err’, ‘umm’ or ‘you know’ in English. Some students thought that the filler ‘na-ge’ (那个) sounded just like the N-word in English. Three students raised the issue in their feedback forms to Prof. Patton on the same day. ‘When I read them, my heart dropped, and I have felt terrible ever since’, Patton said. He explained: ‘I did not connect this in the moment to any English words and certainly not any racial slur’, particularly if you consider the difference in ‘sounds, accent, context and language’. He immediately apologised to the class in an email and sent another apology on the next morning.

Read the full article here:
https://theelectricagora.com/2020/10/13/racist-language/?fbclid=IwAR3UefO5KlEDOdBsRvLosZf5sq-vpU3m55vQBZg_MlGW-ucJ7V40KNM_uVM

Sporting Propaganda: The Language of Strategic Fouling

by Miroslav Imbrišević

Words don’t just describe the world; they change the world. We do things with words as John L. Austin (1975) has argued. But words can also change how we think about something. In this piece I wish to examine the everyday usage of words referring to strategic fouling, as it cuts across various languages. In some languages this rule-violation gave rise to figurative language after the practice became wide-spread. We find euphemisms but also dysphemisms, as well as evaluative language (whose purpose here is to excuse the action). This is important, because ‘if thought corrupts language, language can also corrupt thought’ (as George Orwell observed). I will argue that euphemisms and other evaluative language which refer to strategic fouling are a piece of sporting propaganda, aiming to dull our senses to such rule-violations.

Key words: strategic foul, euphemism, dysphemism, evaluative language, metaphor, metonymy, propaganda

Free to download here:
https://idrottsforum.org/imbrisevic200928/

Trans Attack on the Concept of ‘Woman’

Attackofthe50ftwoman

by Miroslav Imbrišević

Those who are in the grip of trans ideology reject ‘woman’ as a sex term, because it
‘doesn’t do justice’ to transwomen’s experience. Until recently, their claims to womanhood were considered a psychological disorder. After all, ersatz coffee is not coffee, it’s a substitute, so we musn’t be fooled by the label. This was very likely the underlying view of the medical profession.

Attitudes in some quarters (particularly in feminist philosophy) have changed. Being trans is not considered a disorder anymore [1]. But why do transwomen have to be included in the class of women? Woke culture urges that we acquiesce to their self-belief and treat them as ‘women’. We can of course, as a courtesy, treat transwomen as ‘women’, by referring to them as ‘she’, etc. But all concerned need to keep in mind that treating someone as X doesn’t make them into X – recall the Emperor’s New Clothes. Being a woman, contrary to Judith Butler, is not (merely) a performance.

UK legislation makes it possible to change gender (2004 Gender Recognition Act) and to have the sex on your birth certificate altered. But this is just another courtesy which the state extends to trans people [2]. The exemptions in the Gender Recognition Act (GRA) and in the 2010 Equality Act (EA) confirm that the state can make life easier for trans people but it cannot change their biological make-up.

The GRA (Appendix, section 19 Sport) states that transwomen can be excluded from the female category in sport in order to secure fair competition and the safety of the competitors. And according to the EA it would be lawful to exclude a transwoman from a group counselling session for female victims of sexual assault (Explanatory Notes to the Equality Act 2010: 157).

UK legislation has created a legal fiction. The state will treat transwomen as if they were women – for all legal purposes [3]. This constitutes the limit of what the state can do – it cannot change material reality. The transperson’s sex at birth hasn’t changed, neither has it been observed and recorded wrongly. I suspect this is where some trans activists go wrong, they start to believe that the legal fiction has become reality.

One clue is in the term ‘transwomen’. It picks out a group of people who are not the same as women, if they were, we wouldn’t need the term ‘transwoman’. Since their biology doesn’t qualify them as members of the class ‘woman’, they have to resort to another criterion: self-identity. This has a Cartesian flavour. The trans philosopher, Talia Mae Betcher, claims that we have First Person Authority (FPA) about self-avowals like: ‘I am a woman’. A facetious critic might point out that many people claim to be Napoleon, but rather than playing along and respecting their FPA, we send them to institutions. But let’s not go this way. For Descartes, the only certain thing I know is the cogito: I am, I exist. But I only exist while I am thinking. All other cogitations (thoughts) are prone to error, and this goes equally for Betcher’s self-avowals.

Consider Therians. These are (mostly young) people who identify as animals: I am a wolf. They imitate these animals in dress and behaviour (howling). Should we treat them as if they were wolves? Do they have FPA?

Betcher tries to circumvent the epistemic weaknesses of first-person avowals by claiming that FPA about gender is an ethical notion rather than an epistemic notion. If you deny – in the wider community – what people claim about themselves (within trans communities) you wrong them, and you allegedly erase them. I don’t see why we are wronging people when we point out to them that the courtesy of treating them as women has limits (more here). These limits, i.e. the exemptions in UK legislation which allow for exclusion of transwomen, are a thorn in the side of trans activists. They remind them that their mantra (trans women are women) clashes with reality.

If we cannot change reality, trans activist reason, perhaps we can change the meaning of the words which describe reality? There are (at least) two lines of attack on the term ‘woman’ (= adult human female). 1. Biological sex is not a clear-cut criterion for determining who is a woman, because there are intersex people, who don’t fall neatly into the male/female binary. From this trans activists conclude that transwomen belong in the class ‘women’ because it is not sex-based. But this reasoning is faulty. Just because a term might be fuzzy at the edges doesn’t mean that it doesn’t hold for the vast majority of cases. For example, the occurrence of dusk and dawn doesn’t mean that we have to give up the view that daylight is the criterion for ‘day’ and darkness the criterion for ‘night’. Equally, a total eclipse of the sun doesn’t mean that darkness is a feature of the term ‘day’; it is merely an exception, an extraordinary event.

The second line of attack goes like this: within the class of women there are two sub-categories: cis women and trans women (similarly Alex Sharpe: ‘trans women’ and ‘non-trans women’). They are both ‘women’. This is an attempt to smuggle something into the debate which needs to be established first: In what sense are transwomen women? Using language in this way is merely wishful thinking. An idea (label) doesn’t establish the reality of the idea. Other types of re-labelling are: penis = lady dick; lesbian = a female or transwoman who is sexually attracted to women and transwomen, etc., etc., etc. So no, feminism does not have to be trans-inclusive, and transwomen don’t have to be included in the class ‘women’ – provided that you look what’s under the label ‘transwoman’.

NOTES:

1. Be that as it may, but in the last couple of years there has been a huge rise in girls who identify as boys. This might have something to do with the pressures of gender-conformity for girls.

2. Note that the legislation was originally aimed at transsexuals (those who sought to have gender-affirmation surgery). However, the current transman gives birth, and many transwomen are outwardly indistinguishable from men.

3. The GRA uses the phrase ‘for all purposes’, and this is unfortunate. It has been shortened. The full phrase standardly used in legislation (since the 16th century) is much clearer: ‘for/to all intents, contructions and purposes’ – and for absolute clarity we need to add: ‘of the law’. The shortened phrase has encouraged some transpeople to believe the legal fiction. The law doesn’t claim that it can make a man into a woman, it only claims that for the purposes of the law we can treat a biological male as a woman.

Are Transwomen like ‘Adoptive Parents’?

sdr_HDRB

by Miroslav Imbrišević [15/7/2020]

https://www.theguardian.com/education/2020/jul/11/uks-only-trans-philosophy-professor-to-jk-rowling-harry-potter-helped-me-become-a-woman

The philosopher Sophie-Grace Chappell says: “Trans women are like adoptive parents, who want to be accepted as being the same as biological parents. And they are accepted as such, despite the differences in how they became parents in the first place; and if society could do the same for trans women, we’d be in a better place.”

This does sound nice, who doesn’t like well-meaning parents? But it is misleading. This is what’s wrong with the ‘adoptive parents’ analogy.

It suggests that adoptive parents (transwomen) have the same concerns (for the wellbeing of the child) as the biological parents (women). They both want the same end and, therefore, there is no clash of interests and rights (between women and transwomen). This may be true for parents and adoptive parents, but the analogy breaks down when applied to women and transwomen (activists and their allies). Women’s rights and trans rights do clash. They do not want the same thing. Unlike adoptive parents, trans activists do not care for the welfare of women, they are only interested in furthering their own cause: the trans narrative. If they truly cared about women, they wouldn’t be peddling the fiction that there is no difference between women and transwomen, and that women should just shove up and make room for transwomen in spaces which are designed to be women-only. If they really cared about women, they wouldn’t spew so much hatred and misogyny against females who disagree with trans ideology (see the abuse against J.K. Rowling). If they really cared for women, they wouldn’t run as women’s officers (why would a transwoman be best placed to represent women?), they wouldn’t put themselves forward for women-only short lists (diminishing hard-won opportunities for women), they wouldn’t accept awards or accolades which are meant for women (Philip Bunce in the ‘Top 100 Women in Business’ list), they wouldn’t want to displace females from podium places in sport, etc. Actions like these are proof that they have no concern for women, but only a ‘me first’ attitude and a feeling of entitlement (that rings a bell, doesn’t it?). The analogy may reflect how some transwomen (Sophie-Grace Chappell) would like women to see them, but it is not as harmless as it looks.

 

 

The Language of Law: To all Intents and Purposes

20190710_123045

by Miroslav Imbrišević

Trans activists in the UK might get confused by the phrasing in the 2004 Gender Recognition Act, section 9 (1), particularly by the phrase ‘for all purposes’:

‘Where a full gender recognition certificate is issued to a person, the person’s
gender becomes for all purposes the acquired gender (so that, if the acquired
gender is the male gender, the person’s sex becomes that of a man and, if it is
the female gender, the person’s sex becomes that of a woman).’

This phrase has a specific legal meaning and history. It is short for ‘to/for all intents and purposes’, going back to English law in the 16th century. It means: ‘in every practical sense’ or ‘virtually’. It does not mean that a transwoman is a woman; it only means that the law will treat a transwoman as if she were a (biological) woman – for example, by issuing a new birth certificate. What we have here is a legal fiction, a helpful construct going back to ancient times. Roman law treated soldiers who were captured by the enemy (and thus becoming slaves in the eyes of Roman law) as if they were free men. This legal fiction ensured that the captive’s will was valid. Similarly, the GRA relies on a legal fiction by treating transpeople as if they were of the opposite sex. If a transwoman were no different from a woman, then the exceptions in the GRA wouldn’t make any sense. Section 19 Sport (1) states that in gender-affected sports the governing bodies can ‘prohibit or restrict the participation as competitors’ of persons who have legally changed their gender. The reason for this prohibition or restriction is to ‘secure (a) fair competition, or (b) the safety of competitors’.

The lawmakers implicitly acknowledge the underlying legal fiction by restricting the legal scope of changing your gender. The same goes for sections 15 Succession etc, 16 Peerages and 20 Gender-specific offences etc. In English law the crime of rape is defined as penile penetration. This means a transwoman, with intact male sexual organs, cannot use the defense that she is a ‘woman’ and therefore could not have committed the crime of rape.

It was wise of the UK lawmakers to include these exemptions, because they remind us that a transwoman is not the same as a woman and a transman is not the same as a man. However, for trans activists these exemptions contradict their mantra: ‘A transwoman is a woman’. For this reason they clamour for changes to the legislation.

The Canadian cyclist Rachel McKinnon seems to believe that she is ‘female’ in all respects, and for this reason she would be entitled to compete in the female category. Such a claim can only be made if you ignore, or are oblivious to, the legal fiction underlying gender legislation. I suspect that the Canadian lawmakers were not as wise as those in the UK.

Appendix: relevant sections from the UK GRA 2004:
15 Succession etc.
The fact that a person’s gender has become the acquired gender under this Act does not affect the disposal or devolution of property under a will or other instrument made before the appointed day.

16 Peerages etc.
The fact that a person’s gender has become the acquired gender under this Act – (a) does not affect the descent of any peerage or dignity or title of honour, And (b) does not affect the devolution of any property limited (expressly or not) by a will or other instrument to devolve (as nearly as the law permits) along with any peerage or dignity or title of honour unless an intention that it should do so is expressed in the will or other instrument.

19 Sport
(1) A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection (2) is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act.
(2) This subsection is satisfied if the prohibition or restriction is necessary to secure – (a) fair competition, or (b) the safety of competitors, at the event or events.
(3) “Sport” means a sport, game or other activity of a competitive nature.
(4) A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport.

20 Gender-specific offences
(1) Where (apart from this subsection) a relevant gender-specific offence could be committed or attempted only if the gender of a person to whom a full gender recognition certificate has been issued were not the acquired gender, the fact that the person’s gender has become the acquired gender does not prevent the offence being committed or attempted.

PART 3: SHARPE’S DISCOMFORT

Sharpe

by Miroslav Imbrišević

Sharpe discusses whether it is right that some female-only service providers (e.g. a rape crisis centre or domestic violence refuge) should know if any of their prospective clients are trans. She dismisses the (p. 17) ‘risk of violence’ issue because (p. 17) “a few isolated cases ought not to inform good public policy decision-making.” However, she doesn’t consider that minimising risk would be good public policy.

Then Sharpe considers the possibility that women “might feel uncomfortable” if they had to share spaces with trans women. I have pointed out in my previous post, quoting Karen Ingala Smith, that it would often go beyond discomfort – victims of male violence are more likely to feel terror.

Sharpe’s response to the discomfort objection is (p. 17): “In relation to claims of discomfort, we should challenge them more squarely. After all, if a straight woman expressed discomfort at the prospect of sharing space with a lesbian few would concede ground. This concern is especially apposite because the real issue here is not
whether a woman is trans, or whether she poses a danger to other women, but whether she performs gender in a normative manner and/or whether her morphology falls within the typical range. In other words, we are dealing with a politics directed not toward ontology or risk, but discomfort.”

The analogy, using a lesbian woman, doesn’t work, because lesbians don’t (normally) pose a risk to other women – but male-bodied people do. Further, a lesbian woman and a straight woman are both female, whereas it is a contentious issue in what sense a trans woman is supposed to be female. And following on from the last point: it is questionable whether trans victims of sexual violence necessarily should be accommodated together with female victims of sexual violence. But more importantly, a lesbian who enters a refuge or rape crisis centre or a female prison doesn’t cause terror in victims of male violence/sexual abuse.

In spaces which are designed for female victims of male violence/sexual abuse it is important to know the trans status of a person. This would also apply to female prisons, where a high proportion of inmates are victims of sexual abuse and/or male violence.

From the claim that trans women as a class are vulnerable to male violence, it does not follow that they therefore (p. 19) “need to access women-only spaces.” What might follow from this claim is that trans women need separate facilities.

Women who have been traumatised by men, should not be forced to share intimate spaces with male-bodied persons – no matter how much, or how little, body-modification these trans women have undergone. It isn’t, as Sharpe claims, about (p. 17) “the way gender is performed and perceived”, it is about reducing risk, trauma and discomfort for women.

Why should we increase the risk of violence to women (by opening up female-only spaces)? Why should we expose vulnerable women to the prospect of feeling terror? Why should women accept feeling discomfort in women-only spaces? Sharpe suggests we should go along with all of this just so that some trans women activists may feel validated. This seems neither proportionate nor legitimate to me.

SHARPE’S USE OF LANGUAGE: EXEMPTIONS IN THE EQUALITY ACT

Mountain

by Miroslav Imbrišević

Alex Sharpe writes about the exemptions in the EA (p. 14): “But even in relation to domestic violence refuges or rape crisis counselling services, it may be difficult for women’s organisations to rely on the exceptions. Gender critical feminists will point to the explanatory notes to schedule 3 which state it is lawful to exclude a trans woman in circumstances where organisers judge that non-trans women clients who attend group sessions are unlikely to do so if a trans woman is present”. Note that Sharpe omits to state the nature of this group session, it is for: “for female victims of sexual assault” (Explanatory Notes to the Equality Act 2010: p. 157). Sharpe (p. 14) then points out that the explanatory notes may help with interpreting the law, but they would not be determinative, (i.e. decisive) in a court of law. “Ultimately, in order for exclusion to be justified, it must be found to be both ‘proportional’ and ‘legitimate’.”

Let’s see if we can make a case for ‘proportional’ and ‘legitimate’ exclusion. If we had six women in a group session for victims of sexual violence and one trans woman wished to join the group, then, in my view it would be ‘proportional’ to exclude the transwoman, if as a result some or all of the group members would not wish to attend any more. And why would exclusion be ‘legitimate’? Let’s hear from Karen Ingala Smith from the women’s charity ‘nia’: “Women experiencing trauma after violence and abuse will, like most of us – almost always instantly read someone who might be the most kind and gentle trans identified male in the world – as male; and they may experience debilitating terror immediately and involuntarily, they will modify their behaviour, their actions and expectations in countless ways, many that they are not consciously aware of.” Keeping all of this in mind, excluding trans women seems a ‘legitimate and proportional’ measure to me.

However, Sharpe is not convinced: “In my view, it would be hard to conclude exclusion of a trans woman sexual abuse victim would be a ‘proportionate’ response to the possibility some non-trans women might feel uncomfortable in her presence.” Interestingly, here Sharpe tells us that the trans woman is a ‘sexual abuse victim’, but there no mention that the women (‘non-trans women’ in Sharpe’s terminology) in this group are victims of sexual violence. Recall that in an earlier passage, the nature of the group session was also conveniently ignored by Sharpe. This is clearly an attempt to manipulate the reader, by stressing the victimhood of the trans woman and by diminishing the trauma of women who experienced sexual violence – from men. Sharpe again downplays the trauma of women in this passage: “the possibility some non-trans women might feel uncomfortable in her presence.” Since decisions about exclusion have to be made on a case to case basis, the people running the group session would presumably find out from the group members beforehand how they would feel about a trans woman joining them. So it isn’t some vague ‘possibility’ that women might object, it would be a ‘reality’. Further, to suggest that women might feel ‘uncomfortable’ is also another attempt to downplay the effect a trans woman might have on women in this context. I have to admit, Sharpe employs a subtle use of language – trying to manipulate the reader into thinking that the exemption in the EA are pointless.

How sharp is Sharpe? Trans propaganda by a legal scholar.

Crowstone

by Miroslav Imbrišević

In her latest academic paper Alex Sharpe distinguishes trans women from ‘non-trans women’. This implies that the default, the general or universal term, is ‘trans women’. And this is nonsense. The general term is ‘women’ (or ‘woman’), and from this we have derived the term ‘trans women’ (or ‘trans woman’). Without the word ‘women’ there wouldn’t be any ‘trans women’. The latter define themselves in relation to the word ‘women’. Why add the adjective ‘non-trans’ to women? It suggests that the debate – in what sense are trans women ‘women’? – has happened and has been settled. This, of course, is far from true. Trans activists want to shut down this debate, particularly in feminist philosophy. They claim that it as a given that a trans woman is a woman, but many women (and men) disagree. A trans woman with a Gender Recognition Certificate (a piece of paper) changes her legal status from being male to being ‘female’. Catholics have a story about how water changes into wine, but trans activists cannot explain the mystery of changing sex, from one second to the other, after being given a piece of paper. They get fooled by what the law appears to be saying. But the law employs a legal fiction, similarly to obtaining a ‘declaration of presumed death’ (also a piece of paper), for a long missing relative. The law treats the missing person AS IF they were dead. They might be dead of course, if they disappeared after a natural disaster, but they might be sipping Margaritas in Mexico. The law creates legal fictions to make things easier for citizens. The 2004 UK GRA was designed to help transsexuals, so that their lives may go better. The declaration of presumed death allows relatives to deal with the estate of the missing person to help them get on with their lives. Here, the little word ‘presumed’ helps us to identify the legal fiction. To avoid confusion, the little word ‘trans’ should be read in the same way: the law will treat you AS IF you were a member of the female sex – and we will even change the birth certificate from ‘male’ to ‘female’. But this does not mean that you should believe that the fiction is real.

Sharpe writes (p. 4) that the sex-based exemptions, provided by the 2010 UK Equality Act, so far, have not been successfully challenged in court. The suggestion is that women don’t need to worry about losing any rights resulting from a change in gender legislation, because these problems never arise (in courts). And why is that? Sharpe’s answer (p. 4, FN 20): ‘The reasons for this include the fact organisers of women-only spaces generally respect the rights of trans women and because the exceptions set a high evidential bar. It may also be due, at least in part, to trans women self-excluding from women-only spaces because of the chilling effect of the exceptions and because of the toxic environment that has arisen in the wake of proposed reform of the GRA.’ Well, other reasons come to mind. 1. Many organisations (women’s shelters, rape crisis centres) fear being taken to court, because they struggle with funding as it is (and cuts in legal aid), so they accommodate trans women. 2. Many organisations (companies, police, schools, etc.) have been trained by Stonewall and Mermaids and were – wrongly – told that trans-women may not be legally excluded from women-only spaces. Sharpe assures women that there is nothing to worry about, because they will retain their sex-based exemptions – ignoring that trans activists are clamouring to abolish these exemptions. Sharpe writes that the exemptions have a ‘chilling effect’ on trans women, ignoring the ‘chilling effect’ trans women have when they demand to share intimate spaces with victims of sexual violence in women’s refuges or in female prisons. Trans activists don’t like the exemptions of the EA because it interferes with their overblown need for validation (think of all the selfies taken in women’s toilets). If they could legally enter all of the women-only spaces, this would be proof that ‘a trans woman is a woman’. At present the exemptions prove that ‘a trans woman is a trans woman’. It is important to resist these demands to do away with sex-based exemptions, because this would harm women.

[MORE TO COME…]

 

 

More than a Feeling: Rock Stars, Heroines and Transwomen

 

 

boston-more_than_a_feeling_s_1by Miroslav Imbrišević

If you want to be a rock star, playing Guitar Hero (a video game) with your friends will not do the trick. Although it might sow some seeds. You need to do rock star things: play a real instrument or sing, write good songs, have long hair, do some head banging, smash your guitar on stage, trash hotel rooms and throw wild parties.

If you want to be a hero or heroine, you need to do heroic deeds, like rescuing grannies from burning buildings or holding off a horde of Nazis single-handedly while you wait for reinforcements to arrive. Re-creating the battles of Waterloo and Trafalgar in your bedroom will not count as heroic.

Note that merely ‘feeling like a rock’ star, or ‘feeling like a heroine’ will not make you into a rock star or a heroine either. Though such feelings may (or may not) arise once you are a member of The Pretenders or when you get a medal for bravery.

If you want to be a (trans)woman… let’s see.

Read full essay here: 

https://theelectricagora.com/2019/12/22/more-than-a-feeling-rock-stars-heroines-and-transwomen/

Sport, Law and Philosophy: The Jurisprudence of Sport

Modesto 012

Call for Abstracts – book of collected papers: ‘The Jurisprudence of Sport’

Please send an extended abstract (as a WORD-file) of 900-1000 words, including indicative bibliography,
and brief bio to: jurisprudence2020@gmail.com
Deadline for abstracts: 31st January 2020

This is for a volume of collected papers by a British publisher. The provisional title of the book is: Sport, Law and Philosophy: The Jurisprudence of Sport. This is an emerging and underexplored field in the philosophy of sport/law, and I have taken the title from a paper by Mitch Berman [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2466&context=faculty_scholarship]. For another example (my own contribution) see here:
[https://www.raco.cat/index.php/FairPlay/article/download/343429/434532].

The idea behind this approach is to look at sport through the eyes of a legal scholar and, conversely, legal scholars often allude to themes from sports or games (Hart, Dworkin, Raz, etc.) to illuminate jurisprudential problems. There is recognition that law and sports (as games) bear strong similarities. Both can be understood as systems of rules, with a judge/referee who has the power to issue punishments/penalties. And the rules of cricket, football and rugby are known as ‘laws’ in English.

I recently ran a workshop about ‘The Jurisprudence of Sport’ at the IVR congress in Lucerne [https://www.ivr2019.org/] [Special Workshop No. 20: https://www.ivr2019.org/special-workshops]. This book would build on the workshop papers, but would include new material (8-10 papers). Some space in the volume could be dedicated to contrary views, i.e. law/jurisprudence and sports don’t mix.
Possible topics would be:

 Sport as a legal system. What is the normative status of rules compared to laws? Are both realms presenting absolute prohibitions or can rule-breaking be ‘priced’? Are rules disjunctive – you follow them or you break them (compare with the ‘law and economics’ approach)? How should rules be interpreted – like a constitution/originalism? Can you have defective rules, badly framed rules, unfair rules – similarly: defective laws, immoral laws. Are games morally disengaged – cf. legal positivism? Is there something like Kelsen’s ‘Grundnorm’ in sport = ‘fair play’? Game rules as Razian exclusionary reasons? The ‘internal point of view’ (Hart) versus the ‘lusory attitude’ (Suits).

 Types of rules (formal rules and informal rules/conventions; constitutive rules; regulative rules; penalty-invoking rules, playing rules, eligibility rules, conduct rules, tournament rules) – analogies to: regulatory law/statutory law; Hart’s duty-imposing rules and power-conferring rules

 The role of the referee. DECISION: final OR appeals process. The scope of authority between judge and referee. The relationship between the referee and VAR. Enforcement/non-enforcement of rules/laws. The referee, just like the judge, creates facts: ‘you are off-side’ – ‘this will is invalid’. Bad calls and wrongful convictions. Make-up calls and equity. The impartiality of the referee/judge.

 The authority of the referee. Players, but also fans at the stadium, routinely challenge the decision of the referee (including abuse of the referee). TV viewers feel competent, because of VAR, to do the same. Donald Trump has referred to ‘bad judges’ (and ‘bad laws’) and the Daily Mail in the UK branded three High Court judges as ‘enemies of the people’. How does this affect the institution of law or particular sports?

 Rule breaking (intentional/accidental; strategic foul; dangerous play; negligence – recklessness; cheating-fraud = the doper defrauds other competitors: loss of sponsorship, earnings, job opportunities after the end of your career).

 Justice on the sports field and in the court room. What are the means to get justice and how effective are they? Penalties and punishments: proportionality, deterrence, compensation, restitution.

 The nature of a player’s consent (to abide by the rules; assumption of risk; conventions) – contrast with obligation to obey the law. The state’s monopoly on violence – violence and aggression in sport. Entering a game as ‘entering into a contract – rule breaking versus efficient breach in contract law.

 Issues about the application of law to sports (lex sportiva). Should the law have jurisdiction over sport. Isn’t it a private matter (Mill)? Double punishment (doping): through criminalisation and through sports governing body. What is wrong with match-fixing (underperformance)? Rights issues: is it a (human) right for trangender athletes to participate in the sex category of their choice (see Rachel McKinnon)? Privacy and the intersex athlete (Caster Semenya).

 Challenges to the above analogies between sports/games and law: law and sports differ fundamentally.

The aim of the book is to highlight this area of study and its usefulness to both philosophers of sport and to legal scholars. It would be exploratory but at the same time offer some initial orientation in this field of study. In the literature you often get allusions games/sports and law (Pearson, 1973) and sometimes a more in-depth analysis (Fraser, 2005), but there are only a few papers specifically dedicated to the Jurisprudence of Sport. Mitch Berman coined the phrase ‘Jurisprudence of Sport’ (“Let ‘em Play”: A Study in the Jurisprudence of Sport”, 2012). But a book dedicated to the subject is missing. Berman (1331) writes: ‘sporting systems, though rarely explored with seriousness by legal theorists and comparative lawyers, comprise a worthy object of legal-theoretical study.’

Some representative papers:
Kathleen Pearson: ‘Deception, Sportsmanship, and Ethics’, 1973;
John S. Russell: ‘The Concept of a Call in Baseball’, 1997;
Hamilton: ‘The Moral Ambiguity of the Makeup Call’, 2012;
Luis W. Hensler: ‘Torts as Fouls’, 2013;
Jonathan Crowe: ‘Not-so-easy cases’, 2019;
And a monograph: David Fraser: Cricket and the Law

For any questions and further information please contact me at:
jurisprudence2020@gmail.com
Miroslav Imbrisevic (formerly of Heythrop College/University of London)