Legal Gymnastics

The Paul Hamm controversy got me thinking about the nature of rules. (Eh, the mind of an academic.) The conflict appears to be one of substantive versus procedural justice. As the advocates of South Korea’s Yang might put it, “Yang deserved to win, because he did a better job on the parallel bars; he shouldn’t be deprived of his medal because of a silly technical requirement about the deadline for lodging protests.” Hamm’s advocates rely on a more procedural argument: “He was given the medal and it’s just not right to take it away. The Koreans had their chance to make a formal protest, and they missed it.”

Superficially, the substantive argument sounds better. After all, it would be difficult to condemn an innocent man to a prison term, knowing his innocence, because of a procedural error committed by his defense attorney.

But what if there were not any underlying matter of guilt or innocence? What if court proceedings were nothing but a game, like a moot court or mock trial? In that case, procedure’s all there is. And that, I think, is the closer analog to gymnastics and any other sport. Sports are not just constrained or affected by their rules; they are defined by them. Frederick Schauer refers to these as “constitutive rules,” because they literally constitute the activity in question. Without the rules, the activity would not exist.

When an activity is defined by its rules, the line between substantive and procedural rules is pretty much impossible to draw. Players and coaches have to adjust their behavior to take greatest advantage of the rule configuration. Rules that appear merely procedural take on a strategic character. For instance, NFL teams know they can use their limited number of instant replays as quasi-time-outs. NBA teams know they can use fouls to interrupt the other team’s momentum.

In gymnastics, the rule stipulating that challenges must occur within a certain time period might seem arbitrary. Then again, all the rules are somewhat arbitrary. The start values and bonus values for different gymnastic feats – which the judges misapplied in Yang’s case – lack any cosmic justification. They are decided upon by people, and sometimes they change. Indeed, a last-minute change in values induced Blaine Wilson to change his high-bar routine, leading to a critical error and a nasty blow to head. Yang’s claim is that one arbitrary rule (relating to challenge deadlines) should be suspended while others (relating to start values) should remain fixed.

If some form of “justice” ought to prevail in sports, I think it relates to the public character and medium-term constancy of the rules. The players and their coaches need enough time to familiarize themselves with the rules and devise optimal strategies to deal with them. Last-minute changes alter the calculus without allowing response time. As far as I can tell, the rules relating to score challenges had been established well in advance (whereas the change in start/bonus values that affected Blaine Wilson occurred just before the games began). I see no particular reason to treat the challenge deadline as a negotiable rule while treating others as sacrosanct. Let Paul Hamm keep his gold, for whatever it’s worth to him now.

UPDATE: Read this for more info. Seems Yang may have committed an unnoticed error in his routine, carrying a penalty greater than the difference attributable to the incorrect start value. If the normal review process is suspended, Hamm's supporters argue (I think correctly), then there's no bulwark against reviewing the whole thing on tape and making all adjustments. Does anyone else notice a growing resemblance to the 2000 presidential election?