While there are governmental laws and workplace and other institutional rules, and cultural mores, these are not the same thing as ideal or correct ethical principles that apply to everyone whether they know it or not and that should be able to withstand collective rational scrutiny over time and in any and every place.  Fairness is such an ethical principle or ideal, or more accurately, a set of principles or criteria since there are different kinds of unfairness, or different ways something might be fair or unfair.  Sports involves a subset of them, but there are criteria for fairness that supersede sports and games, because not everything in life is a game or sport, particularly when you cannot just post a past win or loss and then start over the following game or season as if the results of the previous game or season don't have any bearing on the new one.  According to Judaism, possibly Yom Kippur (the Day of Atonement near the first of the new year) lets Jews who have atoned start with a moral clean slate with God for the new year. However it doesn't change one's economic or social circumstances or one's physical state.  It is not like starting everything over about one's circumstances.

Moreover, in determining what the rules of a sport ought to be, one has to have some sense of fairness to begin with, which we do for the most part, even with disagreements about particulars.  Otherwise any arbitrary rules would just be fair and there would be no sense in saying that a particular rule in a game is (or has become) unfair or is shown to be unfair by a particular event or play for which it gives the clearly intuitively and reasonably wrong conclusion.  The same is true in regard to making or amending laws.  Laws should be fair in some ethical sense of fairness, not just in the sense that they apply to everyone and were made by a legislature in the correct specified formal way.  There can be unfair laws, like the slavery laws prior to the Emancipation Proclamation during the American Civil War and the segregation laws prior to the Civil Rights Act one hundred years later. 

Those laws were unfair because they do treat citizens unequally based on morally  irrelevant reasons and also because the unequal treatment seriously disadvantages non-whites relative to white people.  That fails the first and third criteria above for being fair.  It also fails the second and fourth criteria, though not as obviously.  It fails the fourth because the purpose of government and law, particularly in America, can reasonably be considered to be what the founders wrote it is in the Preamble to the Constitution: "We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, ordain and establish this Constitution for the United States of America." Treating people differently on the basis of skin color does not promote the general welfare or bestow the blessings of liberty nor establish justice or form a more perfect union.  Skin color is morally irrelevant to the kinds of advantages and rewards or discrimination and mistreatment that has been wrongly determined by it.  And I think it violates the second criteria because people should have known it was unfair to treat people so horrendously on the basis of something as irrelevant as skin color, even if they didn't know it.  While there is a recognized fundamental legal principle that there should be no crime and no punishment without a specified law that has been broken (nullum crimen sine lege, nulla poena sine lege), that is clearly not a justifiable moral principle in all cases.  There are some things people ought to know are right or wrong without having to have a prior list of right and wrong acts prescribed for them.  Morality is not susceptible to loopholes in the way laws in a formal legal system are.  Ignorance of what is obviously morally right is no excuse.  Even in regard to sports, as I will argue later, it is wrong to claim that acts, decisions, and official calls cannot be right or wrong without an existing stated specific governing rule that addresses how they are to be made.  Sometimes reasoning and external evidence need to be applied to achieve fairness and to make sense.

The above was about how laws and practices that allow one group to have undeserved advantages against another, but the government also sometimes passes laws that give the government itself, or members of it, a wrongful advantage against citizens.  Currently, for instance, Texas uses forfeiture laws, intended to take money from drug dealers, to instead confiscate and keep money from normal, law-abiding citizens.  In many cases it would cost the citizens as much, or more, in legal fees and court costs, not to mention time away from work, to get the money back.  The police are allowed to presume guilt just from people having cash or items of value, such as cell phones or computers, and confiscate it.  To get it back you have to initiate court proceedings and prove your innocence.  Similarly in a crowded Atlanta traffic courtroom a judge told all the people charged with traffic violations that they could leave now to plead guilty to a registrar in another room and pay the fine for their offense, or they could wait all day to have a hearing (which might not happen that day and they would have to return) and make her take up time for the hearing, and if they did that and were found guilty she would fine them far more.  She basically used her office to extort guilty verdicts from people who might have been found innocent or at least not fined much if found guilty with mitigating circumstances.  While the rules apply to everyone, they are still unfair because too burdensome for most people -- people without the resources to have a reasonable chance to prevail in the Atlanta courtroom -- those who cannot really afford to fight or to lose, especially if the outcome itself is unlikely to be right.  And in Texas, only someone who can represent himself in court can win if one would otherwise have to pay more than one can win just to stand a chance to win in court.  Any win in that latter case is a Pyrrhic victory or one that upholds a principle at a cost to you while not really costing the police anything.  All they lose if you win is 1) what they didn't have before they stole it from you anyway and wasn't rightfully theirs to begin with, and 2) the time involved in trying to steal it and then having to go to court.  And since they might win in court, it is perversely worth the effort for them.

Plus in life outside of sports, character in part determines desert, whether people actually get what they deserve or not.  In sports, for the most part people with bad moral character off the playing field can still be successful and even admired for their athletic skills and intensity, and deserve to win the game or championship based on their play.  If there is anything unfair about it, it is only that bad people have great skill or ability, and in a morally perfectly just and fair world, they wouldn't because they don't deserve to be successful.  Once in a while moral character or acts outside the playing field do apply to punishments in sports, as when players, coaches, and others who have influence on the outcome, cheat or gamble in a sport that then penalizes that or bans them for life for threatening or violating the integrity of the game.  When the ban is in some sense retroactive to a time prior to or unrelated to the offense, the fairness and reasonableness of it may be questionable.  The case of baseball player Pete Rose comes to mind in that because he bet on baseball games while he was a team manager, after retiring as a player, he is not (still, as of this writing) permitted to be in the Major League Baseball Hall of Fame, even though he is still the player with the most career hits in baseball and is in many ways one of the sport's best and most enthusiastic advocates and examplars of hard work and determination on the playing field.  Some sports now are starting to do the same with steroid use or other artificial enhancement techniques or drugs, because they want the sport to represent natural ability in some sense of that phrase, where working out and proper diet are acceptable, but some chemicals are not.  For a long time, some athletic competitions excluded professional athletes, but what counted as an amateur athlete seemed to stretch the imagination, given the athletes trained at least as much as any professional might have, and made lots of money from endorsements or other revenues that stemmed from their popularity as successful or otherwise popular athletes.  Even in sports, what is fair can become somewhat complicated in terms of relevance to desert.

Even cheating in a sport can be a complicated moral issue instead of being straightforwardly wrong.  What makes cheating unfair is that it violates the rules and/or the spirit of the game in a way that gives one team or player an undeserved advantage.  Cheating is also wrong because it is not only unfair but it means the cheater is not really competing in the way expected and desired to determine who the winner at some competition in a sport or game (defined by its rules or spirit) should be or is.  The cheater is not really competing at the sport people are thinking they are watching.  E.g., if one is watching a marathon and someone takes a shortcut that cuts out five miles, then his crossing the finish line first is not his winning a "marathon" but a shorter race.  Where cheating gets complicated is when "everyone else does it" and it is known by officials, or should be known by them, that "everyone else" does it, and yet they are allowed to get away with it.  That puts anyone who does not cheat in the same way at an undeserved disadvantage, so that if they violate the same rules, they are not then doing so to achieve an unfair advantage, but to remove the burden of the unfair, undeserved disadvantage on them.  The proclaimed defense "everyone else is doing it" is not a justification for the practice being right, but is a justification for its being fair to do it under certain conditions -- conditions where one would be at an unfair, undeserved disadvantage if one didn't do it.   In such cases, cheating is done to make competing with other cheaters be fair.  It is not right for all (or perhaps even for anyone) to do it because then it defeats the purpose of the competition -- seeing who is best at something under certain conditions (which are now violated or ignored).  If everyone cheats, the game is changed and though once again fair in the sense that everyone is now following the same (secret) rules, those are not the rules that made the original sport or game interesting or that fans think are operating.  So if everyone in a marathon takes the same shortcut, the winner will have won fairly, but will not have won a marathon.  If everyone, including fans, knows it is not a marathon, then no harm is done if fans are happy with 21 mile races, just as they are happy with 10k races or 1 mile races or with 100 meter races everyone knows are not marathons. 

So if steroids were not harmful (though unfortunately they are) and if fans wanted to watch competitions that allowed for steroid use, it would not be unfair or wrong, but it would make it impossible to compare athletes in that sport with athletes in the sport prior to steroids being allowed.  That happens in any sport that allows significant changes which effect performance in the sport -- such as golf or tennis equipment that provides any given player with far more power than the previous equipment.  And it happened most famously in baseball when the number of regular (i.e., not including playoff or championship) games per season was increased from 154 to 162, and Roger Maris hit 61 home runs, beating the record of Babe Ruth's 60 home runs in a season.  Since those were two different length seasons, there is no good way to compare the feats.  Maris took more games but had to play night games that Ruth didn't.  The leagues had expanded and some say that meant Maris faced more inferior pitchers who would not have made it in the majors if there were not so many teams needing so many pitchers.  There are all kinds of things that change in baseball without changing the basic rules of the game, that make it difficult to compare players even in the same compartment, in this case home run hitting.  Whenever players compete under different conditions in any sport, it is not really possible to say how they would have faired against each other under the same conditions.  Even golf tournaments on any given day can be kinder to morning or to afternoon players -- if the wind in the morning is drastically different from the wind in the afternoon or if moisture on the greens evaporates to make the greens lightning fast or less able to hold a long approach shot.  Any given golf tournament just determines a winner for that tournament, not necessarily the best player.  Now if two or more players, play all four rounds of a tournament together under the same playing conditions that don't include changing winds, that might determine who was the best golfer among the four of them for those four days, but that is all it will determine. 

There is a popular claim, often invoked when bad things happen to good people (and sometimes when good things happen to bad people) that "Life is not always fair." As pointed out before, that can mean either that the concepts of fairness and unfairness do not apply at all because the event is a natural one in accordance with the laws of physics and/or random chance, or it can mean that by ordinary standards of fairness, if they were to apply to the event, it would not be a fair result, as in saying that it is not fair that the good die young, even though it may be from natural causes.  Unfortunately it is invoked dismissively in cases where unfairness could be remedied if people with the ability or authority to remedy it would use it instead of exercising callous indifference to the unfairness.  And unfortunately one bogus rationale for allowing unfairness to continue is that it has happened to others in the past and would thus be unfair to them to remedy it for the future.  For example, one reason given against disallowing instant replay in baseball is that bad calls have affected players and outcomes for more than one hundred years, and thus are "part of the game."  But the whole issue is whether they should continue to be part of the game or not, if preventable.  Surely no one would argue that because people died from bacterial infections (such as bacterial pneumonia) before penicillin and other antibiotics were discovered and made available that they should not be used now to save others.  It is not unfair to others that they died before help was available, because there was no choice involved.  But it is unfair to those who could be saved not to use them, since there then would be choice involved.  It is arbitrary withholding of help to those who (usually) are innocent and deserve medical help.  The fact that suspected bad calls have stood in the past when there was not conclusive proof they were wrong does not  mean bad calls should be allowed to stand when they can be clearly and conclusively shown to be erroneous.  

There are all kinds of specific reasons that an act, rule, law, policy, etc. might be argued to be fair or unfair.  Those need to be articulated as clearly and logically as possible and shown to meet the correct criteria for fairness or unfairness (either the four criteria in bullets above or the correct, expanded version of such a list) in order to make a rational determination as to whether there is unfairness or not and that fairness or unfairness overrides considerations of amount of good or harm and considerations of rights or any other ethical considerations.  For example, it would do more good to kill an innocent healthy person in order to transplant his organs to save five other people who would otherwise die, but it would be wrong because it would violate that person's right to life and because it would be unfair.  He doesn't deserve it.  Fairness and unfairness are always considerations, but they are not the only ones and are not necessarily definitive of whether an act is right or not.  Fair acts are not always right.  Once when my two kids were fighting over some silly toy in the back seat of the car, I told them to figure out a way to share it or I would take it away.  The six year old said I should just take it away now because if neither of them had it, that would at least be fair.  I told her that there were better ways to be fair, where they each had it for an equivalent time, rather than not having it at all.  If they could come up with one of those, it would be wrong for me to just take it away from both of them altogether.  

Then on top of that, since being fair or unfair is not the only criterion for being right or wrong, one has to show that the fairness or unfairness is sufficient to make the act, law, policy, rule, or practice be right or wrong.  The argument enclosed below is an example of the kind of case one needs to make, in this instance concerning what is considered to be "the imperfect perfect game" in Major League Baseball, whereby a clearly mistaken call by the first base umpire on what should have been the last out of the game, cost the pitcher credit for pitching a perfect game.  I wrote an unanswered, unheeded letter to the commissioner of baseball (twice, after being assured on the phone his office on two separate occasions that each letter would be answered) pointing out essentially that it would be fair for baseball to right this wrong and unfair for them not to, even though MLB did not have a rule that permitted instant replay to override bad calls.  Such a rule should be unnecessary because umpire calls should be based on any definitive evidence, just as a red mark or bruise on a player's arm (or in one famous case, the batter's shoe polish on the ball) is definitive of his being hit by a pitch, even though the umpire did not actually see whether the ball hit the batter or not.  MLB had maintained that the first base umpire had sole or ultimate authority over judgment calls like this, as stated in the rules.  I claim that conclusive videotape evidence makes that call in this particular case not a judgment call, and thus the umpire does not have sole or ultimate discretion as to whether the batter was safe or out, and that his call should conform to the other, and primary, rule in baseball which describes what makes a batter out at first base on a ground ball.  In this case the batter should have been called out because the first baseman had control of the ball with his foot on the base before the runner got there.  The fact the umpire couldn't tell this didn't mean it did not happen and that we cannot know it happened.  We all do know.  Even the umpire admitted after the game, after seeing the replay, that he had made a terrible mistake that he regretted.  But according to MLB, that is too late to matter.  I say, in this case it is not too late because changing the call would not make any significant difference for that game or the season other than to be fair to the pitcher who deserves credit for having pitched a perfect game. 

There are some wrong calls in sports that cannot actually be remedied, for example, the mistake in the October 6, 1990 NCAA football game between the University of Colorado and the University of Missouri.  In the final play of that game, Colorado scored a touchdown for the victory, but it was on a mistakenly allowed "fifth down" because the officials on the sidelines had forgot to flip the down marker after one of the plays prior to it.  Colorado clearly had five plays to move the ball the requisite distance, for which only four plays are allowed.  But the actual fourth play was an intentionally grounded pass to stop the clock after what was labeled the third down.  Arguing they would not have done that if they had known it was fourth down, they claimed the next play -- the one on which they scored -- should have counted as the fourth play.  Aside from the facts that 1) teams often ground the ball mistakenly on fourth down to stop the clock at the end of a game or half, even when the down marker is correct, because a quarterback focuses on time rather than downs, 2) that Colorado would not have had time to call another set play, and 3) that even football players at the college level should be able to count to four on their own, it was a reasonable argument.  But the Big Eight ruled on other grounds, which seem to me even more specious.  According to the Associated Press (http://www.nytimes.com/1990/10/09/sports/college-football-colorado-victory-stands.html):  "It has been determined that, in accordance with the football playing rules, the allowance of the fifth down to Colorado is not a post-game correctable error,'' Carl James, the Big Eight commissioner, said in a statement. ''The final score in the Colorado-Missouri football game will remain as posted.' "  Notice he did not say it was not an error according to the rules; he said it was not a correctable error, which, I think pretty clearly implies it was recognized to be an error.  Plus all those who officiated the game were suspended indefinitely for allowing it to happen, presumbably since officials also are expected to be able to count to four, regardless of what the down marker says.  And the ruling had significance beyond just the game itself because Colorado finished the season with an official won/loss record that gave it a share of the national championship that year with Georgia Tech. 

While the error may not be "correctable", that does not mean it should be ignored and not taken into account in some way.  If the rules do not give a specific remedy, then reason outside the rules must and should prevail.  I presume that was the idea following the 1989 Major League Baseball World Series change of venue for games following the Loma Prieta earthquake that rendered the San Francisco Giants' stadium unsafe to hold fans. I do not know, and cannot find, a rule in baseball that says how the venue for games should be chosen in event of an uninhabitable stadium or unsafe conditions of the ballpark scheduled according to the rules, etc.  Presumably if Big Eight commissioner James had been the commissioner of Major League Baseball, he would have said the World Series should just have gone on in the scheduled ball park if there were no rule to deal with earthquakes or unsafe venues.  Even if we accept the argument that Colorado would not have grounded the ball on fourth down without the down marker's being wrong and that they might have had the composure to run the same play they ran on fifth, with the same result, the problem still remains that the official display about the down was not correct. 

What we need to know is what would have happened had the officials not messed up, and we cannot know that.  Unlike the baseball perfect game case where we know what the outcome would be with the correct call's being made, the Colorado/Missouri game was more the athletic equivalent of a mistrial in a court of law -- which, in trials, has to be redone because the mistrial makes it impossible to know whether the outcome would be like it should be without the problem that caused the mistrial, except that the game or the play could not be played over.  In other words, if we are going to concede that the official ruling mistakenly influenced the game, and if we are going to concede that needs to taken into consideration in some way for the final outcome, we just cannot tell how the game would have come out and who would have won it.  The game was simply misplayed and the outcome indeterminate.  It could not legitimately be ruled simply a straightforward win for either team, because 1) it was won by Colorado under the calls of the officials but 2) won by Missouri under the application of the playing rules, and 3) there is an inescapable, unresolvable conflict in this case between the playing rules and the officiating rules, as there often is in those sports which have calls that do not allow corrections by outside conclusive evidence.

I often ask my students what is required to score a touchdown in football, and they give all the playing rules for scoring a touchdown, such as carrying the ball across the opponent's goal line or catching a pass in the endzone.  But that is not what is required to score a touchdown, though it seems it should be and according to the playing rules it is.  But since officials have to determine whether that happens or not, and don't always get it right, what you need to do to score a touchdown is to get the referee to signal you have scored with his arms upraised; and to do that you have to have a play that makes him think you got the ball across the goal line or caught it in the endzone.  Similarly in basketball, a foul is what the referee signals is a foul, not necessarily where there is the requisite contact or not.  Of course, the officials' calls are suppose to accurately reflect, and be in sync, with what happens on the field, but when it isn't, if conclusive outside evidence is not permitted to override the official and let the facts count, then it is only what the officials signal that matters for the outcome of the play or game, not what actually happens.  Insofar as videotape or other outside evidence cannot definitively override an official's call, or insofar as it confirms the call, then the call should stand.  There should be three answers possible for instant replay review: 1) the call is confirmed by the evidence (in football they say the review confirms the call made on the field), 2) the call stands, whether it is correct or not, no matter which way it went (meaning that it is neither confirmed nor clearly wrong), and 3) the call is overridden and corrected (with what actually happened described and then counted as the corrected official call).  In the second case -- where a call stands because there is insufficient  evidence to confirm it or override it conclusively -- it makes a difference what the original official call is.  For example, if a play in football is called a touchdown, that would stand, and if it were called short of the goal line, that would stand.

Sports face an insurmountable problem in general about fairness when the rules make the calls of officials be definitive about whether the other (i.e., "playing" or "actual") rules have been met or not and there is incontrovertible evidence to the contrary which is not officially allowed, in any specific case.  When officials' calls are final and allowed to stand though clearly wrong, then 1) players or teams are not awarded what they deserve, and 2) the intent of the game, as prescribed in the actual playing rules (as opposed to the officiating rules) is not honored.  That is not fair to the players and in a sense is not fair to the sport.  If officials made wrong calls on purpose, they would clearly be cheating one or both teams and the sport, and that would be unfair.  If it happens by accident, it is not cheating, but it is just as unfair when there is conclusive evidence wrong calls accidentally occurred, but that evidence is disallowed for consideration to correct them.  This is similar to criminal court cases where evidence is disallowed on formal grounds even though it conclusively shows the defendant's guilt or innocence.

There is one case, somewhat common, where mistaken official calls do not cause overall unfairness: where officials consistently err in the same way for both sides and where players have time to realize and compensate for the errors the officials are making.  For example, in baseball, an umpire might have a narrower or more generous strike zone on a given day (or in general), but that affects both teams equally and even though it favors pitchers or batters, it does not generally affect which team loses or wins because it benefits and burdens each equally and in a way that changes the game only slightly, not significantly.  Unlike North Carolina's substituting keep-away for basketball, a slightly enlarged top and/or bottom portion of the strike zone does not preclude the game being played from being nevertheless essentially baseball.  Normally a narrower or enlarged strike zone in baseball, or basketball officials calling fouls more tightly or "letting them play" is not unfair to either side, but it would be better if the teams knew it before the game started, rather than having to recognize and adjust to it after someone gets two or three fouls called on him/her in the first five minutes of play.  It would only be unfair if the baseball umpire is purposefully taking away the skill of one pitcher to "nibble at the corners," knowing the other pitcher does not but relies on power, or if the basketball referee knows that one team plays more aggressively than the other and wants to help or harm their game by how s/he calls fouls.  To influence the outcome of the game intentionally like that would be cheating and would be unfair.

As I said at the beginning of this essay, having rules, practices, or policies that apply to everyone does not by itself make those rules, policies, or practices fair.  As was shown about determining wages in the work place, knowing whether rules and policies are properly relevant or not to what they govern depends on reasonableness to some extent, and, unfortunately, reasonableness seems to evade both government and private business in many cases.  The bureaucracy of corporations seems no more reasonable than the bureaucracy of government, though unreasonable government rules don't seem to benefit anyone, while unreasonable corporate rules do seem to be self-serving.  While I gave as an initial example that height and alphabetical order should not govern opportunities about everything, unfortunately rules in both business and in government are accepted as reasonable without being all that dissimilar.

I have given an example of unreasonable and unfair corporate practices in the essay "Business Ethics and BlueCross BlueShield of Alabama" (Word doc) (Webpage format) whereby they claim treatments that are clearly in a category that is covered by their policy belong in a different category which is not covered, no matter how far-fetched their explanation for the non-covered category's being more appropriate is; and how appeals are presented in a closed meeting by the person who denied the claim, without the appellant being allowed to be there or present the case for his claim and appeal.

Instances of the same sort of unreasonableness that is unfair in government are easy to find.  The state of Alabama, for example, requires a teaching certificate in social sciences to teach what is a philosophy course offered in some of their high schools in the International Baccalaureate (IB) program.  But college philosophy courses do not count toward a social science teaching certificate.  Hence, a degree in philosophy will not let you teach the course, but a degree that includes no philosophy courses will.   When I said to the woman who told me this "That probably makes perfectly good sense to you, doesn't it," she said "Of course.  That is what the State Board of Education has set up as the requirement.  So, yes, it is reasonable."

Federal rules are no better.  In filing for divorce, I sought unsuccessfully to get off my wife's health insurance policy for public employees of the state of Alabama.  They said until the divorce was final I was covered even though I didn't wish to be.  I began my own Medicare "advantage" plan in March through a different company, since I didn't know when the divorce would be final and didn't want to have a month's waiting period to be enrolled in a new plan and because I wanted my wife not to have to cover me since I was asking for divorce and didn't think it right for her to be paying for my coverage in addition to her own.  July 29th I received a letter saying that Medicare was disenrolling me from my own plan because I couldn't have prescription drug coverage through two different plans.  They dropped me from the plan I had signed up for and wanted instead of from the plan I didn't want through my wife's employer.  The divorce decree was finalized July 21, and so her policy is dropping me as of August 1 from medical coverage, but not from drug coverage -- because there is a "21 day rule" that prohibits drug coverage from being ended less than 21 days before the following month.  But there is no such prohibition about ending medical coverage at the end of the month, no matter how soon it comes after the divorce is final.  Since I have drug coverage with her company (though I don't want it) until August 31, I cannot have my own  Medicare Advantage plan back until September 1, which means I cannot have its medical coverage until then.  So my insurance coverage I have had since March will disappear for the month of August and I will not be covered again till September. My insurer's supervising agent sympathized and said sarcastically "Welcome to the wonderful world of insurance regulations and Medicare."  The Medicare representative who helped me to newly "enroll" (not remain) in the private "advantage" plan could do nothing to stop the disenrollment, and could do nothing to enroll me as of August 1, instead of September 1.  She patiently took care of the enrollment, spending more than an hour with me on the phone as she sought to understand the problem and the facts, and then "research" and apply the solution according to their policies and the law.  She was very nice, but the rules restrained her from being as helpful as would have been reasonable. 

Private attorneys too often represent an amalgam of the problem with both government and corporate rules that are unfair, even though widely and consistently applied.  It is no wonder, that as Timothy Egan points out in the New York Times, lawyers, who are also the leading profession among people that create federal legislation, are ranked by people, according to a Pew survey "at the very bottom in contributing something to society."  I suspect that is probably because they create business and civil (as opposed to simple criminal) laws that are too long and complex to understand without training and time to study them (in other words basically without becoming an attorney) and then sell the expertise to the people they made it necessary to hire them in order to be able to successfully operate in this unnecessarily complex and convoluted system.  Plus, although there are many attorneys who are decent, kind, understanding, and altruistic, too many are not.  The latter often arrogantly and condescendingly depose or cross-examine people they are suing with a self-righteous posture, delivered with undisguised disdain and a contemptuous attitude.  They deliver hypocritical moralistic attacks for mercenary gain with an insensitivity that does not fathom or appreciate the complexities of human relationships and ethics, and they earn their living hiding behind the law to exacerbate and exploit the pain from a failed mutual pursuit (such as a business agreement or partnership, or a marriage) and ensuing falling out, using legal intimidation to try to extort victory at all costs, usually considerable ones.  As a group, such attorneys are not morally credible in their self-righteous legalism.  If the only ethical choice were to be, as attorneys are wont to frame them, between false dichotomies they pose of the possibly mistaken but likely good faith choices they belittle of the people they attack on the one hand for violating unfair or arcane statutory law, and their own form of mercenary formal emotional sadism, I think most sane and normal people would prefer and countenance the former. So it is not strange that such attorneys and the laws and lawmaking that allow them to operate that way, are held in low esteem, if not outright moral contempt.

One small example: I was supposed to pick up a package from my wife's attorney's office.  My attorney said it would be at the desk for me.  I called first, and it was not, so I called my attorney who called her attorney and then assured me it was now at the front desk of this office building.  I went down to pick it up.  The woman at the desk said she had nothing for me there.  I called my wife's attorney who said she could not speak with me but only with my attorney and that I should call him.  So I called the executive assistant of the law firm that the building was housed in.  She said they are not affiliated with my wife's attorney even though she is in their building and her unanswered phone rings to their front desk and she supposedly has left a package for me at this front desk.  She said I need to talk with my attorney.  At this point one feels one is in Wonderland, but I tried one more time to reason with this executive assistant:  "Ma'am, I talked with my attorney and he twice has assured me her attorney has said the package is waiting for me at this desk, which you supervise.  Calling him a third time is not going to change this.  Why don't you call the attorney whose office is in your law firm's building who is clearly in some way affiliated with you, no matter what the legal arrangement is, and find out where this package is, since she won't talk with me?"  So, she did, and then found out the package was at the desk but in my attorney's name, not my name, and that I could pick it up.  According to the executive assistant, since that took care of it, I should not be upset since there was no real problem -- I got what I came in for.  The fact that it took a half hour longer and involved much unnecessary frustration and aggravation, and was just stupid, did not matter to her.  All of it was legal and common practice, which was sufficient for her.  But that did not make it right, reasonable, or fair.

To a great extent, it seems to me that laws and rules encourage in equal doses blind obedience by martinets on the one hand and legalism in search of loopholes by miscreants on the other.  Some rules are meant to prevent chaos and those are worth having -- such as the rule about which side of the street to drive on.  But too many other kinds of unnecessary rules and laws pile up on each other so that it is impossible to know them all and too easy to run afoul of one without realizing it, particularly those which make no sense.  And the penalties often make no sense for some.  In Alabama the fine for not renewing your license tag in time (even if you were not sent a notice and just didn't think about it to remember it) is more than the fine for intentionally running a red light.  In grad schools many times, manual of style technical conformity (e.g., having all the commas  periods and spaces in the right place in the reference citations or bolding and indenting the right passages) is more important in grading than the truth or reasonableness of the ideas presented. 

All those familiar with the TV series M*A*S*H recognize the difference between the Frank Burns(es) of the world and the Hawkeye Pierce(s) and Radar O'Reilly(s).  Burns was a stickler for rule-following regardless of the utility or harm done; Pierce and O'Reilly were interested in doing whatever moral it took to get the right and most reasonable result.  They were wheeler-dealers but with a good sense of right and wrong; they dealt fast and loose with rules to accomplish significant good when following the rules would do significant harm.  Or consider the difference between the Pharisees and Jesus when it came to the purpose of the laws; the Pharisees thought the law was what mattered; Jesus thought it was people that mattered.  People should matter more than law, notwithstanding the view of attorneys and lawmakers to the contrary.  Laws and rules which are harmful or unfair in any particular circumstances, should be invalid and void in those circumstances.  The principle of jury nullification in essence does that though it is decried by attorneys because it basically says that the person does not deserve conviction even if s/he broke the law.  It is a jury's referendum on the law under the circumstances of the case, saying or implying that in those circumstances the law is a bad one and deserved to be broken.

It is my view that society and institutions would be better off if instead of being legalistically law- or rule-governed, they were morally governed, and that the principle of "no crime without a law" be abandoned.  Decent people know what is right or want to find out before they make mistakes.  They should not be punished for reasonable errors, but should be punished for wrongs they do for which they clearly should have known better.  For example, in high schools across the country where administrations are disliked, students will scour the student handbook looking for loopholes in the rules so they can do something they know will anger the principle but not be punishable because there is no rule against it.  The administration will then add one or more new rules, and the process will begin the following year again.  It would be far easier just not to have specific rules, particularly unreasonable and unfair ones, but to just have one rule that says if students do anything wrong that they should have known was wrong, they will be punished accordingly by a punishment commensurate with the wrongdoing and/or the harm they caused. 

If this were applied to society as well as to schools, many people would plead they had no way to know what they should have done.  While reasonable ignorance is understandable and mitigating, negligent ignorance is not, even if there is no rule or law against the wrongful act.  But to prevent wrongful prosecutions, police and prosecutors should be subject to the same policy, so that if they over-zealously, arbitrarily, vindictively, politically, or maliciously prosecute anyone which they should have known better than to do, they should themselves be punished.  Yes, there will be disagreements about what is right and wrong and whether someone should have known better, and those will need to be worked out.  But surely the way we work disagreements out now, through long drawn-out, expensive legal maneuvers which are not always ethical, and which don't always give the right answer, is not the fairest, most efficient, most economical, most reasonable, or most satisfying and satisfactory way to do it.  The ninth amendment to the American Constitution is a wonderful example of trying to make laws conform to morality, not replace it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  Many judges consider this amendment weak and veritably meaningless because it is not prescriptive in the way other laws are.  But the whole point of the Bill of Rights was to make sure that the language of the main body of the Constitution did not mean or imply government could do anything, or create any kind of law not proscribed by it -- laws which would violate or allow the violation of people's moral rights.  However, the problem with enumerating which rights were inviolable is that it could be easy to omit some by mistake or by the inability to imagine all the possible transgressions that might be thought of and then put into action by literalists and legalists.  So the ninth amendment wisely points out essentially that "yes, we've enumerated inviolable rights here, but these are not necessarily the only ones; and we are not going to try to list all of them because we don't want people thinking those are the only ones.  We make no pretense of claiming to be able to list every right, but think people should be able to identify and make a case for them when any might unexpectedly unfairly be threatened or violated."  I think the same sort of reasoning could be applied to all right and wrong acts, using all the considerable number of legal distinctions, principles, and exceptions -- many of them good ones -- that have come to light over the centuries as guidelines, but not as absolute prescriptions. 

We don't always need rules and formal mechanisms to compel right behavior, and laws don't prevent criminals from violating them or compel them to do the right thing.  They only provide grounds for trying to make punishment seem objective and justified.  But once law becomes so complex, esoteric, non-intuitive, and sometimes clearly unfair and/or harmful, it is morally insufficient to justify punishment by pointing out one has broken a law.  This is particularly true when people at the highest judiciary levels disagree about interpretations of the laws.  A set of unknowable laws, particularly if it includes bad ones, is no more morally objective than just using moral principles, even if there is some disagreement among them.  There are reasonable ways to resolve such disagreements. There is no morally good reason to believe all citizens should know all the laws they might possibly transgress, and there is no good reason to deny people fair treatment just because some law or set of laws or rules and regulations prohibits it by mistake.  And even if laws were totally clear in their meaning, why should an objective law that is unfair be better than moral principles that have to be discovered and interpreted through reasoning?  An arbitrary written standard is not really an objective standard at all.  At the current time nearly half the Supreme Court disagrees with the other half on many issues of law, which seems to make law hardly objective, and many people find their rulings and rationales unconvincing.  Why not just argue about the morality of issues directly, and try to resolve them reasonably, rather than adversarially arguing which laws are applicable and how they should be interpreted, particularly when the laws involved are clearly or reasonably mistaken or unfair?  Law is not, and cannot legitimately be, a substitute for morality and reason. 

If we require principles to be written (as we now require laws to be) in order for it to be right to expect them to be obeyed , we could theoretically, but not practically, write down all the right moral principles under which we should all operate.  All morality can be stated in words, so it is theoretically possible to write what all those words are.  But no given set of words is likely to get it all right at any given time, particularly ahead of time, any more than a keyboard can be made to produce all the possible great literature in the language it is set up for, even though all the great literature possible can be typed on the keyboard, or any more than a piano or orchestra and choir can be made to play all the possibly great music even if all the great music will be able to be performed by them.  In a sense all great literature is in the alphabet and all great music is in the notes on a piano keyboard, but that does not mean we can write all the great music or literature by just sitting at the two kinds of keyboards, even if we can appreciate them once they are written.

People normally know how to behave properly and will do so, even when law is not really a factor, for example, when traffic lights are knocked out from a storm, people will take turns and drive courteously for the most part, and often traffic flows better than it does with the lights operating.  There will always be some miscreants, such as drivers in and near shopping malls at Christmas who are clearly not the Christians.  But everyone recognizes the few selfish people who are doing the wrong things.  And sometimes the conditions are unfairly and wrongly set up that encourage selfish bad behavior, as in making people wait hours in a group for a sparse number of items they all want, instead of drawing lots.  But most people know how to behave without rules or laws requiring what to do.  People in checkout lanes with a full shopping cart at grocery stores will often let a person with few items and money in hand go before them.  There are intuitive rationales for when that might be right or wrong, and I have written about the different scenarios in my Introduction to Ethics.  The rules do not need to be codified and there don't need to be grocery line police to enforce them.  Explanations about what is fair don't need to be created ahead of time in some book that everyone has to memorize; explanations can be stated, evaluated, and refined when they become relevant and needed.

Lines, such as checkout lines at stores or at box offices to movie theaters, offer a microcosm of fairness issues.  A friend of mine told me she was in Walmart on one of their busiest days, in a long line to return something.  There was one register open at the return counter and when she got to the front of it, another clerk came in and opened a second line, but at that moment a woman who had just entered the return area walked up to it without having spent any time in line.  Now I doubt there are any laws or rules governing this kind of thing, but when the customers behind my friend called out "that is unfair," the initial clerk agreed and told the new clerk she needed to wait on the next person who had been in line and that the customer who had just come in needed to get at the end of a line, of which there would then be two, dividing the initial line in half.  The person behind my friend, who had been waiting in line, was the person who deserved to be waited on at the newly opened register.  Actually bank style lines are the fairest, where everyone waits in a single line and the person at the front goes to the next window or clerk open.  That prevents the annoying problem of being in a line that barely moves, while other people who have come in after you finish before you because the line they happened into moved faster.  It makes the "first come, first serve" principle of desert operative.

That being said, there are interesting psychological phenomena and fairness issues about checkout lines in many stores today.  Two or three issues involve the "10 items or less" lanes.  There are utilitarian reasons for having such lanes.  They prevent someone's having to wait for people with full shopping carts to pay for just a few items.  While that is nice for someone who just wants to "run in and run out" to get a few things, it is unfair to the people who are buying more, and the store is actually being nicer to people who are spending less money with them than to the people who are spending more money with them. 

I want to show that the intuitive view of this -- if you are a person with a full cart, is very much like the utilitarian calculus would determine, even though no one would go through that calculus, any more than someone would go through actual calculus to know how to shoot a running jump shot in basketball.

The intuitive view if one is the third or fourth person in the full service line is that, you come up to the checkout counter after them  and whiz through the "10 item or less" lane and are gone long before they even get to the register of their lane.  That is frustrating and maddening to them.  If they could have gone through your lane, even if they let you in front of them, they could be gone long before they will be now.

The utilitarian calculus of this is: suppose that a full cart takes five minutes to ring up and pay for, and your few items will take one minute.  If there are two full service lanes open and four people before you with full carts (two in each line), it will take you ten extra minutes to buy your few items.  It will take the first person in each line five minutes, and the second person ten minutes to check out.  So there will be two people taking 5 minutes to wait/pay/leave, two taking 10 minutes, and you taking 11 minutes.  That is a total of 41 person-minutes spent for all of you standing in line. 

But if instead, there is a "10 items or less lane" along with the full service lane, then you will get out in 1 minute, saving yourself 10 minutes, but at the cost of adding longer wait times to the third and fourth person in line.  The first person in the full lane will get out in 5 minutes, the second person in 10, the third person in 15, and the last one in 20.  That will be a total of 51 person-minutes for all five of you.  Your saving 10 minutes costs the person who would have been before you -- who is fourth in the full lane -- 10 minutes of additional time in line, and the person in front of them 10 minutes because they had to wait for two more full-cart customers to finish before them than they would have if they were each second in one of the full service lanes -- one of which has been appropriated to serve you.  The 10 item or less lane is more efficient to get you all out of the store 10 minutes faster, but at the expense of two people who have to wait ten minutes longer each, who were ready to check out before you were.  That is not fair to them.

Now, if there were two full service lanes and the two people in one lane both let you go first, you will still get out in a minute, saving 10 minutes, just as you did in the "10 item or less" lane.  And they would each get out in 6 minutes and 11 minutes respectively.  That saves each of them 9 minutes from standing in a full service lane while you go through the short lane and it is empty the rest of the time.

The most utilitarian and the fairest way to do this is for grocery stores to have full service lanes only, with people voluntarily sometimes letting a person with a few items only in front of them.  That is what people tend to do before there were "10 item or less" lanes, though not always.

The other issue is why 10 items is chosen, or in some stores 8, or 12.  Or, if no one is in or approaching the fewer-items lane, why not allow it to be a full service lane at least until someone approaches with a smaller cart-load. 

A store near me has a particularly odd check-out set up.  They have three lanes that are self-serve, but they are only for "10 items or less" customers.  They tend to remain empty lines because not many people get 10 items or fewer.  On weekends a lane-Nazi  guards the self-service lanes zealously and won't let anyone go through if they have eleven or more items, no matter how empty the self-serve lanes are and how full the full service lanes are.  I have not been able to see the logic of that.  I may someday ask, but I don't think the question will be appreciated.

Now, obviously no one wants to do the calculus each time, but it is unnecessary if people understand the general idea.  And it is also unnecessary because it is intuitively obvious to most decent people that if they have a full cart and you have just one or two items, that letting you go first saves you a lot of time and doesn't cost them much time, but if they go first, they save very little time and cost you a lot.  It is only when "10 item or less" lanes become institutionalized that the concept becomes unfair to those who were ready to check out first (and who are spending more at the store).

In other words, as I have given examples of throughout this paper, too many people, particularly those in authority, tend to believe following rules and policies consistently makes a process fair as long as the rules and policies are made by the duly authorized body in the duly authorized way.  Some add that as long as the outcome sought occurs eventually then the process is okay no matter how long it takes or what had to be done to achieve it, no matter how inconvenient, troublesome, harmful or even disastrous.  That the rules do not make sense or that they are not relevant to helping people have what they deserve, does not matter.  Rules are rules, for these people and for them, that is enough.  But that is not enough.  The rules have to be fair and reasonable too if what they govern is going to be fair. 

This work is available here free, so that those who cannot afford it can still have access to it, and so that no one has to pay before they read something that might not be what they really are seeking.  But if you find it meaningful and helpful and would like to contribute whatever easily affordable amount you feel it is worth, please do do.  I will appreciate it. The button to the right will take you to PayPal where you can make any size donation (of 25 cents or more) you wish, using either your PayPal account or a credit card without a PayPal account.

As I wrote in "Religion, Morality, Secular Ideals, and Ethics Education,"

[H]istory is filled with wrong policies and practices; that is often why we pass new laws and amend old ones.  The claim of innocence by virtue of following standard practice was one of the attempted justifications offered by former Vice President Spiro Agnew, when he was indicted on charges of corruption involving bribes and kickbacks as governor of Maryland.  He said he had not done anything different from former governors or other officials in other states.  The idea that using public office in the ways he did for private gain could be wrong no matter who or how many people have done it, or for how long, seemed to have escaped him.  Agnew was disbarred after pleading no contest to the charges against him, and he later had to repay some quarter of a million dollars he was accused of having taken while in office.  Citing his lack of moral understanding,the Maryland Court of Appeals said in prohibiting former vice president Spiro Agnew from practicing law: “It is difficult to feel compassion for an attorney who is so morally obtuse that he consciously cheats for his own pecuniary gain that government he has sworn to serve, completely disregards the words of the oath he uttered when admitted to the bar, and absolutely fails to perceive his professional duty to act honestly in all matters.” (http://news.google.com/newspapers?nid=1338&dat=19740502&id=mZBYAAAAIBAJ&sjid=X_gDAAAAIBAJ&pg=7254,1018542)

While it is true that laws and accepted standards (mores), may change over time, morality doesn't change, even though what is recognized as being morally right or morally wrong may.  But even in a nation of laws, one cannot depend on the protection of bad laws to defend against criminal charges one should morally have known were wrong, for zealous prosecutors can often find novel uses of other laws that can be interpreted in ways your behavior will have transgressed; and you can successfully be prosecuted under them. Given that you can be in legal (not to mention just social) trouble tomorrow for what is legally accepted today, it seems to me it is always better to to do what you can reasonably justify as being intrinsically right rather than doing something you should know is intrinsically wrong, but which is legal or tolerated at the time.  (Return to text.)

3239 LornaRoad
Birmingham, AL 35216
June 21, 2010

The Office of the Commissioner of Baseball
Allan H. (Bud) Selig, Commissioner
245 Park Avenue, 31st Floor
New York, NY 10167

Dear Commissioner Selig:

I would like to suggest that a reasonable interpretation of the current rules of baseball would allow Armando Galarraga’s performance to officially count as a perfect game.  The two applicable rules for this case are MLB official rules 6.05 j and 9.02a

As in any sport that requires an official umpire, referee, or judge to determine whether a play on the field fulfills the requirements of a rule, it is possible for the official’s call to be mistaken about the facts.  Rule 6.05 (j) clearly states what makes a runner be “out” at first in the case of a ground ball: he is out when “he or first base is tagged before he touches first base”.

That occurred in the 9th inning (first) two out play in the game under question.  Under this rule, which is the defining rule of what an out is, or is supposed to be, the runner was out and the game was over.

However, the conflicting rule is 9.02 (a) which makes the judgment of whether rule 6.05 (j) has been met during the play up to the umpire, in this case the first base umpire.

Now, it makes sense in sports that “judgment calls” be in the sole hands of a designated official or else there would be disagreements and chaos about scoring and who really won or not, etc.  For decades and over a century many sports operated under these kinds of potentially conflicting rules so that the official was supposed to call a play according to the “ideal”  rule, but yet if s/he didn’t, the official’s call was the actual, recorded call whether it conformed to the ideal rule or not.  Fans and players often argued, but normally there was no way to prove objectively and without bias or human error that the official made a mistake, and, as people say now, possible human error by officials was taken to be part of those sports, and one presumed that the errors evened out in some way for or against a team over the course of a game or a season.  If an official was found to be cheating or making intentional bad calls against one team in order to affect the outcome of the game, the sports leagues would deal with that in some form or other.

I submit to you for your consideration that when there is clear videotape (“forensic”) evidence of the facts of a play, that removes it from being a “judgment” call, and therefore the call is not solely up to the judgment of the first base umpire, and rule 9.02 (a) does not apply; only rule 6.05 (j) does. 

What definitive video tape recordings of plays do in sports is to take the judgment out of some calls, so that the pure rule can apply unfiltered through the eyes of an umpire or anyone else.  And the problem for sports that do not recognize definitive videotape evidence is that then everyone in America knows whether the pure rule was met or not except for the umpire/referee.  That is why sports have to use video tape evidence or lose credibility.

Unfortunately different sports have (incorrect) formal or procedural rules about how to use videotape evidence, so that in NFL football for example, you still have problems when coaches don’t challenge a bad call or when they don’t have any challenges left to use for a bad call.  So even though the NFL has a video replay rule, they have the wrong one, and bad calls are still made and everyone knows that except the refs.  The most reasonable rule is to have someone monitor the TV broadcasts so that the second any instant replay shows the whole viewing audience a call was clearly mistaken, play can be stopped and the call corrected.  After all, what you want is for calls to conform to what happened and to what every fan clearly sees happened. 

Those instant replays that are not definitive or clear cut then allow the call to remain in the realm of “judgment” and the official whose judgment counts (as by rule 9.02 a) is the person whose call formally counts.

Now I know there have been past errors of judgment that cannot be corrected without causing all kinds of undesirable consequences.  And that is a real problem for bad calls that are not detected until long after other plays have ensued based on the bad call.  But this game is not one where there are any serious consequences for reversing the call, other than to grant the pitcher what he duly earned, a perfect game.  It is not that the wrong team won based on the bad call or that momentum changed, etc.  This should have been the last play of the game, and recognizing it as that does not change any other consequence for this season’s play or standings.  It changes the batting average of the batter by a miniscule amount, and it would remove the real last out from being an out, thus affecting that batter’s average by a miniscule amount also.  Otherwise there are no (serious) consequences for changing the ruling at this late date.  (Return to text.)

 

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  Rule 9.02: (a) Any umpire’s decision which involves judgment, such as, but not limited to, whether a batted ball is fair or foul, whether a pitch is a strike or a ball, or whether a runner is safe or out, is final. No player, manager, coach or substitute shall object to any such judgment decisions.

Rule 6.05: A batter is out when ... (j) After a third strike or after he hits a fair ball, he or first base is tagged before he touches first base; (Return to text in the letter.)