by RICH CASSIDY on JUNE 5, 2010
Once again, a Jack McCullough comment is too interesting to leave buried back in the archives. Commenting on acceptance of what seems to be a blown call that deprived pitcher Armando Galarraga of a perfect game, Jack writes:
“The Case of the Imperfect Perfect Game last night offers, surprisingly, an example of the Rule of Law and its importance.
A philosophy professor I had once defined a game as an activity in which an arbitrarily selected goal is pursued by arbitrarily restricted means. In other words, in a very real sense, the game is the rules. . . . One other thing: people have been suggesting that in a situation like this every umpire would, and should, give the pitcher the “benefit of the doubt”, by which I assume they mean they should have called the runner out even if they had some doubt, or just because it was a close play and it meant giving him a perfect game. I think this is completely wrong. Obviously he would, and should, have had a perfect game. On the other hand, the umpire’s job, and obligation, is to call the game, and every play in the game, honestly. Once you say they should start shading their judgment because of how they want things to turn out you’re on very shaky ground. It’s exactly what the Supreme Court did in Bush v. Gore, and we saw how ugly that turned out.
The decision today, and the stoic acceptance of the decision both last night and this morning by Armando Galarraga, is a statement in favor of the Rule of Law, and I praise everyone involved in today’s decision.”
Jack McCullough June 3, 2010 at 9:56 pm Read the rest of Jack’s post here: http://rationalresistance.blogspot.com/2010/06/about-last-night.html
I’ll try to resist the temptation to patronize both of us by claiming that great minds work alike, but I can’t resist observing that the situation brought very similar ideas to mind for me. Perhaps lawyers’ minds work alike.
Baseball (the game, not the business), does provide an analogy against which to consider the Rule of Law. In baseball, as in life, there are rules. If the game is to be fair, the rules must be fairly applied. That’s the business of umpires and of judges. Both are human and fallible. If we expect perfection, we will be disappointed.
But we can expect a striving for perfection. The drive to do what is right comes into tension with the duty to apply the rules as they were written, even when the judge or umpire does not like the result.
What is the difference then between game and law? Cynics would say there is none. I’ll offer this distinction: If, as Jack’s professor suggested, in a game, an ”arbitrarily selected goal is pursued by arbitrarily restricted means,” in law, individually selected goals are pursued by means restricted by a government.
The process of ”restricting the means” is what government is all about. In a dictatorship, the means are restricted at the whim of the dictator. Usually, that whim is all about maintaining the dictator’s power.
In a pure democracy, the means are restricted at the will of the people. In a democratic republic, the judgment of elected and appointed officials mediates between the will of the people and the restrictions of the means.
If the underlying process of deciding how to “restrict the means” is corrupt, the process of applying the rules to individual cases would seem inevitably to be corrupt (or irrelevant) as well.
If the underlying process (the government) is not so corrupt as to be illegitimate, then it matters a great deal that the process of applying the rules to individual cases has integrity. That means the judges/umpires must make a good faith effort to apply the rules in an honest way to the facts as they really see them.
There is, of course, a great deal of dissatisfaction with the way the government and the legal process work in modern America. That is not new. We must always strive to improve both if we are to keep that dissatisfaction from becoming so pervasive as to make the system unworkable.
And in law, as in baseball, we must, from time to time, tolerate calls that are just wrong.
Thanks again Jack.
Rich