Re(con)fusion of law and sport in light of ‘seriousness’ and ‘trivialization’

Abstract

This article takes a firm departure in the thesis of the juridification of sport. By initially presenting two cases that highlight the logics and problems in the interaction between sport and the law, we receive a fertile soil for analysing the rationalization processes, as well as the trivialization processes, that emerge in light of the commercialization of sport, the ‘eventification’ of society and when, consequently, the ‘law goes pop’. The analysis and the reflections are completed by mixing the thesis of Huizinga's cultural analysis of play and sport, with Sherwin's analysis of the trivialization of law. Interestingly, we find, in addition to the prominent rationalization process, tendencies of a comparable ‘trivialization process’.

Notes

^1. Early in the year 2000, after being familiarized in the fields of ‘visual legal communication’ as well as ‘law and popular culture’, my academic career turned paradigmatically, moving from sociology of law to sport science, and especially to the grounds of sports law and the legal culture of sport. This transfer, along with its ‘legacy’, has created an interesting and fairly beneficial opportunity to comprehend and analyse the dialectics of law and sport, or the mixture of sport/law.

^2.Huizinga, Homo Ludens.

^3.Sherwin, When Law Goes Pop.

^4. Obviously, there are other cases and legal problems that might have worked as illustrations, e.g. in relation to patent rights, intellectual property and brands. However, the focus on predictability versus the uncertainty of outcome in these two cases is captivated and worth pondering, in relation to difference in logic.

^5. Case no. S 99/756, Kouvola District Court, 23 November 2000. Regardless of the age of the case, it has followed me, and still appears relevant and critical when discussing ‘the juridification of sport’. Cf. Carlsson, Idrottens rättskultur.

^6. Cf. Rauste, ‘Kan en domstol besluta’.

^7. Ibid

^8. Ibid

^9. In that respect, we have to remark that the Scandinavian sport model has an image of voluntarism and idealism, and immature commercialization, particularly in relation to the American sport model, where legal intervention is more frequent in sport. Cf. Gems and Pfister, Understanding American Sports and Backman, ‘I skuggan av NHL’.

^10. We have to state that particularly horse racing was quickly shaped by professionalization as well as commercialization. Cf. Greiff and Hedenborg, I sulky och sadel.

^11.Carlsson, Idrottens rättskultur.

^12. Santon, B. de Sousa' ‘camelification of the law’ penetrates the problem when law becomes saddled with (trivial) social issues, such as for instance ‘the quality – the predictability/unpredictability – of a sport event’. Cf. Santon, B. de Sousa, Toward a New Common Sense.

^13. In that respect, the case might set off learning processes in sport organizations. The warnings from the law and the outcome of different legal cases – and the communication and learning process that might result from these cases – might force the sport movement to reflect on its normative patterns and structures and adapt them to modern sport as well as to values and conditions in society in general and, thereby, not habitually put forward traditional, more or less obsolete, ideals from the first periods of organized sport, or stubbornly advocate the idea of self-regulation. Cf. Eder, ‘Collective Learning and Social Evolution’.

^14. The Swedish Consumer Agency (http://www.konsumentverket.se/otherlanguages/Eng'prelish/) is of an extra-legal, or pseudo-legal, character, which means that it operates as a legal adviser and precursor before legal actions. Cf. Banakar's (The Doorkeepers of the Law) analysis of DO, the Equality Ombudsman.

^15. Compare this Konsumentombudsmannen, Consumer Agency, case with the case (http://www.arn.se/English/) to Allmänna Reklamationsnämnden, The National Board for Consumer Disputes (http://www.arn.se/English/) in which the Board recommended Malmö FF to reimburse the complainants 400 SEK in relation to a game that was stopped due to a hooligan attack on the goalkeeper.

^16. Cf. Andersson and Carlsson, ‘Diagnosis of the Commercial Immaturity’.

^17. ‘Theatregoer’ is one possible fan category, in addition to passionate or reclusive partisans, champ followers and aficionados, in Westerbeek and Smith's (Sport Business in the Global Marketplace) analysis.

^18. In this perspective, could a ‘theatregoer’ or an ‘aficionado’ – at least theoretically – make higher (legal) demands on the quality of the performance/event of Man United than, for instance, on Leicester City?

^19. Cf. Breivik, ‘Against Chance’. Breivik argues that in professional sport we have to reduce and limit hazards to a minimum, in order to support professional skills, tactics, techniques and preparations.

^20. Regardless of this focus, the cases might call for supplementary research. For instance, the horse race case could be contextualized in relation to early professionalization shaped by money, gambling and licenses. Cf. Greiff and Hedenborg, I sulky och sadel.

^21. Cf. Foster, ‘Juridification of Sport’.

^22.McArdle, From Boot Money to Bosman.

^23. Cf. Houlihan and Green, Routledge Handbook.

^24.van den Berg, Braun, and Otgaar, Sports and City Marketing.

^25.Maguire, Fit for Consumption.

^26.Horne, Sport in Consumer Culture.

^27.Ranay and Bryant, Handbook of Sport and Media.

^28.Smart, Sport Star.

^29.Westerbeek and Smith, Sport Business in the Global Marketplace.

^30.McArdle, From Boot Money to Bosman; Greenfield and Osborn, Regulating Football and Anderson, Modern Sport Law.

^31.Carlsson, Idrottens rättskultur.

^32. In the case of (external) juridification, relations and conflicts in sport will be increasingly grasped, interpreted and handled in legal terms, by the logics of the law. In that respective, the risk is that the law becomes the primary and the most natural source for conflict resolutions and for governing social relations, and that the regular communicative structures in society are distorted and lose their prominence. In that respect, the endorsed philosophy of sport autonomy and self-regulation will become impossible to maintain (Carlsson and Lindfelt, ‘Legal and Moral Pluralism’).

^33. Cf. Foster, ‘Juridification of Sport’ and Carlsson, ‘Insolvency and the Domestic Juridification’.

^34. In that respect, it is possible to sense a society without professional sport, but not a society beyond authoritative law.

^35.Fraser, Cricket and the Law and Carlsson and Thiborg, ‘Law and Morality in Counterstrike’.

^36.Luhmann, The Sociology of Law.

^37.Carlsson and Baier, ‘Visual Self-Image of the Legal System’.

^38.Luhmann, Sociology of Law.

^39. For example, Teubner, ‘After Legal Instrumentalism’; Santon, B. de Sousa, Toward a New Common Sense; Handler, Law and the Search for Community and Cf. Rottleuthner, ‘The Limits of Law’.

^40. Cf. Carlsson and Baier, ‘A Visual Self-Image of the Legal System’. Regardless of a tendency towards either formalism or, on the other hand, a growing impression of arbitrariness and discretion, or even calculation and cynicism in relation to legal matters, the basic conception and the foundation of the legal system appear, at first glance, secure and majestic. Notwithstanding postmodern scepticism and the increasing impact of visual popular culture (i.e. tabloids, law movies and crime shows), the image of the law might still be experienced as a stable system (e.g. Sherwin, When Law Goes Pop).

^41.Katsh, Law in a Digital World. Looking in the historical mirror, however, the picture has been an important instrument for describing justice and injustice, fairness and unfairness. In this light, we can mention the ‘dubiously interpretable’ sculpture of Blind Lady Justice with her eyes covered, albeit depictive. From a historical perspective, the picture has had a place in legal books, particularly in the fifteenth and sixteenth centuries, as a representation of justice or law and order. The illustrated book, a book in which text is followed by paintings describing a scene in the text is a medieval conception.

^42. The tendency to disregard the visual potentiality in communication can, of course, be found in other fields of knowledge. In this respect, ‘sociologists habitually focus on talk and texts, which they also use to communicate their own kind of understanding, or specialist knowledge’ (Chaplin, Sociology and Visual Representation, 1).

^43.Katsh, Law in a Digital World, 17–18.

^44. During the modern era – beginning with the Age of Enlightenment – we begin to locate a prominent faith in printed texts. With the dawn of printed texts, it became possible to describe and present the state of affairs, more or less objectively, to great numbers of people. In this development, pictures disappeared as significant illustrations of norms and values. To some extent, the picture became a complement or comic supplement to the text. During this period, pictures were withdrawn from legal textbooks, because of the emerging belief that modern law ought to be presented formally, stringently and with credibility. This means that we ‘tend to take for granted the pre-eminence of the written text in almost all areas of knowledge and to regard any accompanying visual material as subsidiary to it’ (Chaplin, Sociology and Visual Representation, 3). As a result, we ‘talk about “illustrations” and regard the written text as transmitting the argument or message to recipients’ (ibid).

^45. Still, according to legal anthropology, the origin of law is not rationality; see below, Huizinga's analysis of the play element in culture.

^46.Katsh, Law in a Digital World, 139.

^47. Ibid, 140.

^48. Cf. Douglas-Scott, Law after Modernity.

^49. In this perspective, by emphasizing the theme of ‘visual legal communication’ (ibid), we receive a socio-legal departure ideally adapted to analysing the image of the law in art, pictures and photographs (i.e. visual texts) – as well as in popular culture in general (Carlsson, Rättssociologi och populärkultur).

^50.Lash, Sociology and Postmodernism; Baudrillard, The Consumer Culture; Baudrillard, Simulacra and Simulation.

^51.Sherwin, When Law Goes Pop, 6.

^52. Cf. Carlsson and Baier, ‘A Visual Self-Image of the Legal System’.

^53. Ibid

^54. Cf. Durkheim, The Elementary Forms of Religious Life.

^55.Silbey and Ewick, The Commonplace of Law, 76.

^56. Ibid

^57. In this manner, the law manages to transform the ‘subjectivity’ in visual communication according to its own formal standard and normative closure (cf. Luhmann, The Sociology of Law), and visually presents a ‘formal image’ of the law through the photographs of legal calendars and legal brochures.

^58. An increasing number of TV shows, such as ‘Master Chef’, ‘Idol’, ‘Let's Dance’, ‘Robinson’ and ‘Work of Art’ adhere to a sport logic, in addition to the televisual logic.

^59.Sherwin, When Law Goes Pop.

^60.Ewick and Silbey, The Commonplace of Law.

^61. Cf. Denvir, Legal Realism.

^62. Cf. Carlsson, ‘Rättens trivialisering och avmystifiering’.

^63.Carlsson, Rättssociologi och populärkultur.

^64. For example, ‘Devil's Advocate’ as well as ‘Liar, Liar’ would have worked as well. (Cf. Carlsson, ‘Rättens trivialisering och avmystifiering’). ‘Suits’ is a more trendy soap, presenting legal action as a ‘bazaar’, rather than a trial or a courtroom drama.

^65.Apello, Ally McBeal and Carlsson, Rättssociologi och populärkultur.

^66. In this context, the focus will be on the trivialization process. Still, popular culture's impact on law might demystify the (temple of) law. Common people will become acquainted with the operation of law, albeit in the form of entertainment and in light of the logics of Planet Hollywood. The question is whether this is rational, because there are socio-legal scholars claiming that the law works more efficiently if the citizens are unconcerned and poorly informed about law's function and content (cf. Handler, Law and the Search for Community).

^67. Cf. Rättssociologi och populärkultur. Interestingly, Erwin Chemerinsky, a law professor, argued that F. Lee Bailey, O.J. Simpson's defence attorney, lived up to the expectations of the jurors because they recognized Perry Mason in Bailey's performance and acting (Sherwin, When Law Goes Pop, 30). Still, O.J. Simpson's famous car drive in his white Bronco could have been an episode in a Hollywood production, due to the rituals in the (re)construction of reality (Cf. Hunt, O.J. Simpson). What is to be conceived as reality or its representation seems to become even more confused and untidy in our (post)modern world (cf. Baudrillard, Simulacra and Simulation). In the wake of the O.J. Simpson narrative, the computer game, Escape from Monkey Island, involves a test, in which the gamer/avatar has to try on a mask (Simpson's glove) in order to get to next level of the game.

^68. Still, Sherwin is not an advocate of an idealistic and nostalgic belief in the traditional legal system. In that light, naive realism will not work. At the same time, postmodernism makes it impossible to make general and universal claims on justice and morals (Sherwin, When Law Goes Pop).

^69. Ibid, 17.

^70. Ibid, 5.

^71. Ibid

^72. Another manner of tackling the development of law into the areas of, for instance, popular culture is by the ‘camelification of law’ concept. Cf. Carlsson, Idrottens rättskultur.

^73.Redhead, ‘Taking Law and Popular Culture Seriously’.

^74.Lindfelt, Idrott och moral and Loland, Fair-Play in Sport.

^75. Cf. Luhmann, Sociology of Law.

^76.Huizinga, Homo Ludens, 7–8.

^77. Ibid, 9.

^78. Particularly in popular culture's representations of the law; i.e. in the law à la Hollywood and in soaps such as Ally McBeal.

^79.Huizinga, Homo Ludens, 96 and Cf. Elias and Dunning, Quest for Excitement.

^80.Huizinga, Homo Ludens, 97 and Cf. Elias and Dunning, Quest for Excitement.

^81. Ibid

^82. In its character and function it has a resemblance to native people's dance masks, ‘which make the wearer into another being’ (Huizinga, Homo Ludens, 97–98).

^83. Caps have been common in sport, particularly in the early days, as a parallel to judges' wigs.

^84.Huizinga, Homo Ludens, 98.

^85. Visual representations in popular culture, such as Perry Mason, are excellent illustrations of this thesis.

^86. Huizinga, convincingly, supports his thesis by a number of examples from the history of legal anthropology. For instance, he writes about the past legal culture of the Inuits. When an Inuit had a complaint against another inhabitant, he had to challenge the opponent on drums and songs. The tribe or clan organized, in relation to that competition, an entertaining gathering where all participants were handsomely dressed and in excellent temper (Huizinga, Homo Ludens, 105). During this reasoning, Huizinga clearly emphasizes that this kind of battle (or competition) has a position similar to contemporary legal proceedings and decisions. A similar mode of solving disputes could be traced to the primitive society of the Ifugao tribe and their ‘joking relationship’ (Barton, Ifugao Law). Cf. the studies of the Cheyenne (Llewellyn and Hoebel, The Cheyenne Way) and the Melanesians (Malinowski, Crime and Custom in a Savage Society).

^87.Huizinga (Homo Ludens, 98–99) argues:

If we ignore legal proceedings in modern states and focus on less advanced societies, we will find that the conception of winning or losing – i.e. the pure instinct of competition – overshadows the ideology of the ethical-legal reasoning on justice and injustice. In that respect, the final conclusions and the closing decisions could be made by oracles, by spirituality or by hazards (i.e. play), and the fundamental and crucial mechanism in the (authority of the) decision depends ultimately on a rule of the play/game.

^88. Huizinga argues (ibid), that the outcome of a ‘play of hazards’ has been considered as a sacred end, deciding the side of the cube/coin through ‘Holiness’. The semifinal between the Soviet Union and Italy in the 1968 European Championship ended 0-0, but the Italians got to the final through casting the lot. Even Liverpool reached the semifinal in the 1964/1965 European Tournament after originally playing two games against Cologne, both ending 2-2. At that time, sport was obviously less serious. Cf. Breivik, ‘Against Chance’.

^89.Carlsson, ‘Rättens trivialisering och avmystifiering’.

^90.Huizinga, Homo Ludens, 107.

^91.Baudrillard, The Consumer Culture and Baudrillard, Simulacra and Simulation.

^92. Actually, the simple fact that something that is as trivial as sport can be regarded and presented as serious makes the phenomenon serious in itself.

^93. According to a neo-functionalistic system-theoretical approach, both systems – sport as well as the legal system – will suffer from a closer and ‘mutual’ connection (Luhmann, The Sociology of Law, 1990). The reasoning for this standpoint is related to theories dividing society into different functionally differentiated (sub)systems that have cognitive openness, but normative closeness. This means that communication internally, in a system, is unproblematic due to common values and rationalities, whereas communications between different systems stand out as problematic due to divergent normative structures and values. In order to establish a discourse, a communication, one has to consider various ‘thematization thresholds’ that might shape and distort the communication. According to this theory, the law, the legal system, as the last instant in relation to conflicts, has an extraordinary position because it has to handle conflicts – communication – authoritatively that emerge in or between differentiated (sub)systems, when the normative foundations of these systems are insufficient. In order to persist as a distinctive ‘system’, as a ‘self-referential system’ and as an authoritative and legitimate system, the legal system has to understand, conceive and transform this communication (in light of its cognitive openness) according to its logics and rationalities (its normative closeness). The juridification processes that seem to occur in different social spheres fundamentally originate from this systemic precondition of the law. However, if the law and its ‘normative closure’ are biased by sport, or popular culture in general, we might possibly conceptualize this trend as the ‘sportification’ or trivialization of law.

^94.Flood, ‘Shark Tanks, Sweatshops’.

^95. Could the origin of science, as well, be traced culturally in the play element, e.g. ‘a test’? Cf. Latour, Pandora's Hope.

^96. Cf. Habermas, Knowledge and Human Interests.