Cricket and the Law The Man in White is Always Right Studies in Law Society and Popular Culture 1

Cricket and the Law
Football may be the people’s game, but the quintessentially English game of cricket has a
firm place within the public’s affection with many cricketing concepts escaping the
confines of the game to carry far broader social meanings.
Cricket and the Law charts the inter-relationship between cricket—the law of the
game, and legal theory—the law of our lives. Fraser draws fascinating connections and
commonalities between these two seemingly disparate, complex sets of conventions.
This engaging study will be enjoyed by lawyers and students of law, sport, sociology
and cultural studies, as well as cricket lovers everywhere.
David Fraser is Professor of Law and Social Theory at the School of Law, Nottingham
University, UK.


Routledge Studies in Law, Society and
Popular Culture

Series Editors: Steve Greenfield and Guy Osborn
School of Law, University of Westminster, UK.

Routledge Studies in Law, Society and Popular Culture is an inter-disciplinary series that
examines the relationship between the law and all areas of popular culture. Particular foci
include the regulation of spheres of popular culture and representations of law within
popular culture. ‘popular Culture’ is a broad and inclusive church that includes all aspects
of leisure and culture, including but not confined to music, sport, film, media, night-time
economy, art, literature, the internet etc. Whilst law may well provide a useful vehicle for
an analysis of cultural activities within society the absence of law in the field may be just
as important and worthy of consideration.
The Series Editors are interested in receiving proposals and manuscripts for this series,
please contact Dr Guy Osborn or Steve Greenfield at the University of Westminster
( or ).

This is the first book in the series.


Cricket and the Law
The Man in White is Always Right

David Fraser

LONDON AND NEW YORK


First published 2005 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York,
NY 10016
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This edition published in the Taylor & Francis e-Library, 2005.
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© 2005 David Fraser
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Every effort has been made to ensure that the advice and information in this book is true and
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I want to stress again one aspect of the game which is most important. Never argue
with an umpire.

—Ian Botham

I don’t understand why, in a democratic society, where government and all the
accepted standards in every walk of life are being questioned, umpires should be
immune.

—Asif Iqbal



Contents

Series editor’s preface

ix

Preface

xi

Foreword

xv

1 Introduction

1

2 The legal theory of cricket

14

3 Lord Denning, cricket, law and the meaning of life

20

4 Dante, cricket, law and the meaning of life

24

5 Laws, not rules or cricket as adjudication

28

6 Law, codes and the spirit of the game

37

7 More law and the spirit of the game

48

8 The man in white is always right: umpires, judges and rule of law of law

64

9 Umpires, decisions and the rule of law

78

10 The man in white is always right (but he is not always neutral)

99

11 Technology, adjudication and law

104

12 Leg before wicket, causation and the rule of law

116

13 Mankad, Javed, Hilditch, Sarfraz and the rule of law

124

14 It’s not cricket: underarm bowling, legality and the meaning of life

138

15 The chucker as outlaw—legality, morality and exclusion in cricket

145

16 Murali, Shoaib and the jurisprudence of chucking

152

17 Bouncers: terror and the rule of law in cricket

186

18 Ball-tampering and the rule of law

200


19 The little master, ball-tampering and the rule of law

238

20 Delay and over-rates: temporality and the meaning of cricket

247

21 Ethical discourse, legal narrative and the meaning of cricket

255

22 You…—sledging and cricket as ethical discourse

258

23 Walking, the judicial function and the meaning of law

273

24 Other stories about cricket, law and the meaning of life

282

25 Capitalism and the meaning of cricket

309

26 Class struggle, old school tie and the meaning of cricket

317

27 The Hill, the members and others: the crowd as sub-text

321

28 Bodyline, postmodernism, law and the meaning of life

330

29 Conclusion: on life, law and cricket

335

Notes

337

Index

402


Series editor’s preface

Cricket writing has a long and distinguished history, with a breadth and depth of writing
that is almost unique within sport. The material ranges from the bio graphical to the
statistical, and the long history of cricket provides a huge wealth of material to draw
upon. Cricket as a whole is incredibly well served in terms of its literature, with examples
of books reaching beyond the compass of the sport itself and analysing broader social and
political concerns.1 Major issues such as apartheid and, more recently, the human rights
record of Zimbabwe and the political relationship between India and Pakistan have been
reflected in the playing, or abandonment, of cricket. Down notes the importance of the
game to English society thus; ‘Cricket surely deserves this special treatment since, more
than almost any other sport in England, it is woven deep into the fabric of society, its
influence embracing the most noble-born and the most humble’.2 Evidence of this can be
seen for example in the use of cricketing vernacular and metaphor within the English
language. That cricket is evocative of something broader than the game itself can be seen

in the use of cricket by politicians from Geoffrey Howe to John Major, the latter
memorably using cricket as emblematic of all, to him at least, that is great about Britain;
‘Fifty years on from now, Britain will still be the country of long shadows on county
[cricket] grounds, warm beer, invincible green suburbs, dog lovers and old maids
bicycling to Holy Communion through the morning mist’.
Cricket has become subject to increasing regulation at a whole host of levels. Even
within some local leagues there are complex player regulations and disciplinary
sanctions, whilst the professional game has had to contend with issues such as matchfixing, drug taking and of course the perennial debate that concerns ‘chucking’. The
increased regulation mirrors other areas of sport and popular culture more generally:
‘In recent years the law has increasingly become involved within popular
culture on a number of different levels: the law has, in effect, begun to
colonise leisure. As the leisure industry has developed it has faced
increasing legal regulation. For example, within the music industry we see
the increased visibility of the law in contractual problems, disputes about
intellectual property and control over the dissemination of material. The
media too has been increasingly subject to legal regulation of content. The
phenomenon is equally marked within sport’.3


Cricket and the Law deals in part with this juridification, but goes further and considers
the wider relationship between cricket and the law, and by implication, society itself As
Fraser notes in his preface, ‘[law] is a social construct, law is not above or separated from
the other social practices which govern our lives. Law is politics, sociology and literature,
and…it is also cricket’.4 It is these connections and collisions between two apparently
disparate areas of everyday life, and what this relationship tells us about our existence,
that lie at the heart of the text. As Allan Hutchinson noted in a review of the first edition
of this work; ‘Fraser uses cricket as a medium through which to illustrate how issues of
legality, ethics and moral judgment inform all person’s lives and their daily social
practices’.5
When we first met David, and saw the first edition of this book, we were delighted

that a book of such academic breadth and excellence had been written on the area. Links
and ideas that now seem obvious were revealed in a series of perceptive and original
chapters. However, its publication on a small imprint emanating from the Institute of
Criminology at the University of Sydney meant that few people were able to get hold of
the work and the book was deprived of the audience it deserved. When we became series
editors of Studies in Law, Society and Popular Culture we resolved to not only
commission new texts but also to ‘reclaim’ lost classics. David Fraser’s Cricket and the
Law is a classic, and we are delighted and honoured that we are able to offer this in our
series.
Steve Greenfield and Guy Osborn
School of Law
University of Westminster
Series Editors, Studies in Law, Society and Popular Culture


Preface

When I first moved to Australia in Dec. 1988, the Pakistani and West Indies cricket
teams were touring the country. I knew little, if anything, about cricket and was
astounded by the blanket media coverage accorded to the sport. Because of my interest in
popular culture and especially in television, and because I am basically quite boring, I
soon found myself glued to the TV set watching a game the mysteries and subtleties of
which completely escaped me.
One day, as I watched with some Australian friends, there was a unanimous shout
from the fielding side and the batter was, or so I was informed, given out LBW. As my
friends answered my queries, I suddenly found myself with an anchor, a point of
reference from which I could begin to understand this game. The LBW decision bears a
strong resemblance to the issues raised in the very problematic area of causation in tort or
criminal law, especially when dealing with liability for an omission. How can something
which did not occur be said to have ‘caused’ something which did? How can the umpire

be sure the ball would have hit the stumps? What is the factual condition precedent for
such a legal adjudication?
While my fascination with cricket and obsession with the game soon found other
points of reference and ways of understanding, the connections with Law continue to
fascinate. From the case of William Waterfall, the first person convicted of manslaughter
on the cricket field at the Derby Assizes of 1775, to the restrictive trade practices
litigation of Packer cricket, to continuing controversies over the tax status of benefit
proceeds, to debates over ambush marketing and players’ sponsorship contracts, cricket
provides many useful examples of ‘real law’. More importantly, however, cricket offers
examples of how legality, ethics and moral judgements inform all our lives and our daily
social practices.
The real purpose of writing this work is to explore the interactions of these sometimes
competing and contradictory ways of ordering our private and public lives. Traditional
‘legal’ scholarship has tended to ignore these concerns, mostly by adopting the strictly
formalist division of legal positivism between law on the one hand and morality on the
other. This leads to the equally disingenuous strategy of defining such concerns as ethics
and morality as higher order issues and leaving them to the marginalized area of
jurisprudence. My own encounters with these apparently so-called objective categories,
through my own work in areas as diverse as law and popular culture and the legal regime
of Nazism, as well as the work of others in these and other areas, challenges the cultural
and ideological assumptions which inform mainstream legal scholarship.


By focusing here on the ways in which the legal and ethical principles of the game of
cricket are formed, constructed and challenged in the daily practice of the game itself, I
try to offer concrete examples of law not as an over-arching, objective set of concrete and
irreversible rules, but as a social construct, an artifact which is created by us, in society,
to serve definite functions. Because it is a social construct, law is not above or separated
from the other social practices which govern our lives. Law is politics, sociology and
literature, and as I hope to show here, it is also cricket.

This means that all of the apparently separate and distinct social phenomena that we
encounter in our daily existence are interconnected and together they tell the story of our
lives. Not all of them all the time and not always the same story. Out of the complex
myriad of factors, we select the elements which narrate our personal and collective
existences. This does not mean that I am trying to establish a claim for cricket as a new
meta-narrative. Rather, all I am trying to do is to demonstrate that cricket, and all the
complexity and contradiction which make up our understanding of that game, can tell us
much about the way we live and about the role and function of law in our society. Indeed,
one of the main areas of the legal practices of cricket which makes it such a good point
for making the broader political point is the very contradictions of the game itself.
Cricket is not just obedience to the strict letter of the Laws of the game but about appeals
to the ‘spirit of the game’. Adjudication and law-making in practice deal with, decide, or
live with the contradictions of complexity and uncertainty. That is precisely why we
watch cricket and it should be why we practise law. This work is concerned with the
breaking down of barriers between the parts of our lives. It is an argument against seeing
either law or cricket as distinct areas of existence which have nothing to do with one
another. It offers support for the contention that it is wrong and counter-factual for us to
think, as traditional views of the role and function of ‘the law’ would have us believe,
that there are important and higher things like ‘the Law’ and unimportant and lower
things like cricket. At the same time, I try to offer an examination of the complexities of
daily practice which underline the ‘fact’ that ‘the law’, like ‘cricket’ is not onedimensional or fixed, but that both are informed and constructed by participants in each
endeavour. This does not mean that we must not make individual and social orderings
and rankings of priorities but it does mean that we must realize that there is nothing preordained or immutable about the orderings we do make. What follows, then, is my own
idiosyncratic view of the interconnections between the various parts of what we might
call cricket, law and the meaning of life.
Some of the analogies and metaphors are straightforward—causation and LBW,
frequency of appeals and respect for the judicial process, neutral umpires and judicial
bias. Others are more complex—walking versus the strict respect for the umpire’s
jurisdiction, Mankading and the complex morality which regulates the practice of
cricketers indicate an equitable practice which supplements strict legality. Still others

involve discussions of broader, traditional meta-constructs, race, class and gender. What
they all share is a narrative ability, that is they can all serve as a means to understand and
create stories about who we are and how we live.
While most of the examples of moral, legal and ethical problems are taken from firstclass cricket, I do not suggest that this is the only source of knowledge we have about the
game. Indeed, many of us gain primary experience from village or park cricket rather
than from playing in Test matches. There are, of course, differences, or local knowledges


within these levels of the game. Neutral umpires are problematic in park cricket where
each side provides umpires for its own innings, one factor which may lead to the
infrequency of successful LBW appeals. Even the importance of some Laws may be
exacerbated in park cricket. Thus, while ‘timed out’ is extremely rare at higher levels of
the game, it takes on a certain importance in local matches when wickets fall rapidly and
the club has only two or three pairs of pads in the kit. At the same time, however, one is
just as likely to find slow over rates, sledging, walking or not walking etc. in village
cricket as in a Test. This is, of course, no different from the practice of law where a
country solicitor and High Court judge may have little in common at one level of their
daily lives but they both work and live in the same legal system.
There may be no meta-narratives or fundamental values as there were in the good old
days but our lives and experiences are rich and eventful. Cricket and law, separately and
together, are two such events through which we give meaning to our lives.
This book had its origins in Australia where I lived and worked for the past 14 years.
Many, but not all, of the examples used to illustrate the issues and questions raised by the
intersections of cricket and the law come from the Australian context. The advent of the
Internet and World Wide Web have made the study of the game in other parts of the
world more accessible and I have benefited enormously from resources made available
by CricInfo.
Many friends and colleagues have tolerated many discussions about the jurisprudence
of cricket over the years. Special mention must be made of Steve Greenfield and Guy
Osborn of the Centre for the Study of Law Society and Popular Culture at the University

of Westminster. Their work and encouragement have been both inspirational and
supportive. Vaughan Black of Dalhousie University and Kathryn McMahon of the
University of Warwick have put up with my passion for the game with grace and good
humour. Allan Hutchinson of Osgoode Hall Law School has provided the basis for an
ongoing and stimulating conversation about the jurisprudence of cricket. The games of
life and of law are more interesting for me as a result and this book owes him a debt of
gratitude.
Former Australian captains Richie Benaud and Ian Chappell took time to share their
thoughts and impressions with me and to them I am grateful.
Professor Mark Findlay of the Institute of Criminology supported and encouraged the
publication of a much earlier version of this book and Associate Professor Chris Cunneen
has kindly given permission to reproduce parts of it here.
Finally, a word about language. The Preamble of the Laws of Cricket provides that
The players, umpires and scorers in a game of cricket may be of either
gender and the Laws apply equally to both. The use, throughout the text,
of pronouns indicating the male gender is purely for brevity. Except where
specifically stated otherwise, every provision of the Laws is to be read as
applying to women and girls equally as to men and boys.
I have adopted a similar practice in this book. Players and umpires are referred to as ‘he’
except where indicated. This is done both for the sake of brevity and clarity of language.
It is also the case that most of what I discuss in this book involves men doing manly
things. Cricket has been predominately male and has always been a highly gendered


pursuit. I offer some discussion and analysis of the cult of virility which underpins much
of the practice and jurisprudence of cricket throughout the pages which follow.
That being said however, I have also adopted the practice increasingly found in
Australian cricket commentary but not so commonly in English or other cricket. I use
gender neutral language to describe players—batsmen become batters, fieldsmen become
fielders etc. This ambiguity about gender and language found in this book is but one

example of the many contradictions and complexities of cricket and law. That is why I
love the game and why despite my better inclinations, I may well love the law.
David Fraser


Foreword

Cricket is a unique game. It is the only game in the world where food-breaks such as
lunch and tea intervals are built into the game. But perhaps its most unique feature is the
way officials who administer the game on the field of play come to decisions. In all other
team games, and even individual sports, an official in charge of the game, be he a football
referee or a tennis umpire, makes the decision without any reference to what the player
may feel about the decision. A tennis player may argue that the ball is out, or a football
player may feel that the trip that has seen him go sprawling in the penalty area is worth a
penalty to his team. But however much either player appeals to the referee or the umpire
it will make no difference to the official’s decision. Even without appeals the referee in
football could decide to give a penalty, and the umpire in tennis rule the ball out. If the
player appeals too excessively he could be penalised, given a red card in football, docked
points in tennis. In both sports the player’s views about the decisions and whether they
were right or wrong are much discussed in the media and by the spectators, but they
make no difference to how the officials have arrived at their judgements. An official may
occasionally change his mind at the player’s request, but he does not have to wait for a
player to appeal before giving a decision. But in cricket, in order to get a batsman out the
fielding side must appeal to the umpire. True, if the batsman is bowled there is no need
for an appeal as everyone can see that the stumps have been disturbed. Also for a clear
catch in the outfield an appeal is usually unnecessary, but in other cases such as catches
close to the wicket, lbws, run-outs and stumping there has to be an appeal and only then
can the official give a decision, If there is no appeal, he has no right to respond. So even
if the batsman is out and the umpire knows the batsman is out but for some reason the
fielding side does not appeal, the umpire cannot give the batsman out. The batsman

carries on.
This unique nature of the game makes the umpire a sort of a judge in an Appeal Court.
It is this nature of the game which David Fraser, a lawyer by profession, has examined in
such depth.
Fraser is a relative newcomer to cricket. In 1988 while in Australia, he saw Australia
play Pakistan and was fascinated by the umpire giving a batsman out lbw after the
fielding side had appealed. His curiosity was immediately aroused by the fact that in this
case the decision meant the umpire had to judge whether the ball would have hit the
stumps, an event that had not occurred but might have had the batsman’s legs not got in
the way. Putting on his lawyer’s hat he thought this was very similar to the problematic
area of causation in trot or criminal law, especially when dealing with the liability for an
omission.


From this original starting point Fraser goes on to analyse the role of the umpire in the
wider question or law-making and provides fascinating material for cricket lovers.
Here you will find some of the game’s most memorable and controversial moments
but debated and discussed in a very unusual way from a legal perspective.
Fraser highlights how cricket was the last sport to have neutral umpires; in other
words, umpires that did not come from countries contesting the match. Now this may
seem very obvious. Can you imagine an England-Scotland football match being refereed
by an Englishman or a Scotsman but in cricket until the 1990s the home country provided
the umpires and it is only in recent years that both umpires in Tests come from a country
not involved in the match.
I particularly found the chapter on what the Australians call Mankading riveting. This
refers to the incident during India’s tour of Australia in 1947–48 when Vinoo Mankad,
one of the game’s greatest all-rounders, ran the Australian batsman Bill Brown out as he
wandered out of his crease. Mankad was then running up to bowl, but as he got to the
wicket and saw Brown out of his crease he stopped in his delivery stride and whipped off
the bails. Under the laws of the game although the ball had not been delivered, the game

was live and with Brown out of his crease the umpire had to give him out when Mankad
appealed. Although such incidents had happened before in cricket, it was the first time it
had happened in Test cricket and it caused a storm. In Australia it has since come to be
known as Mankading. What Mankad did was perfectly legal but for some in cricket it
was not quite ethical, not quite cricket and remains an explosive issue. Fraser gives a fine
lawyer’s analysis of this issue which provides a new perspective on this subject.
If I have highlighted this chapter it is because it illustrates the unique nature of cricket,
as do all the other chapters in this book. Every chapter has some detail or point of interest
which makes this a book every cricket lover should have. It will not only reacquaint him
with many controversial moments of the game’s past, but make him see them in a
different light. It will enhance his love of this great game.
Mihir Bose
October 2004
London, UK


1
Introduction

‘It’s not cricket’. Everyone knows the meaning of these three words. They embody the
ideals of fair play, ‘gentlemanly’ behaviour, and ‘good sportsmanship’. What I shall
attempt to demonstrate in the rest of this book, however, is that these three words, and all
they embody, is in reality, subject to enormous doubt, ambiguity, stress and struggle.
While everyone might know what the phrase means at a level of generality, once we turn
to the specifics of what might be the actual rules and practices contained in the ideal of
‘fair play’, in this context, the spirit of the game, or more specifically still, of ‘cricket’,
things become much more complicated. As any good lawyer will tell you, language is full
of ambiguity. Indeed, lawyers and judges, to the frustration of the general public, often
seem to thrive on making ambiguous that which appears to be perfectly clear.
At some level, that is indeed the project of this book. I want to explore the

ambiguities, uncertainties, and contradictions of cricket and of law. The ideal of the
uncluttered contest between bat and ball, of willow and leather, which gives to cricket its
place in the mythology of England and of Empire, is in fact, and in law, as all of us who
love the game in fact must recognize, far from its lived reality. What makes this
interesting from a number of perspectives, including perhaps the unexpected angle of
legal theory, is that cricket can, and I argue throughout does, offer us exciting lessons
about the nature and possibilities inherent in ambiguity and doubt. Indeed, cricket itself,
in its laws and practices embodies almost from the beginning these conflicts and
contradictions. The Laws of Cricket make explicit reference to the ‘spirit of the game’,
which must, at some level at least, be deemed to exceed, or to be outside of, the strict and
literal text of the statute.1 In what follows I will explore in particular contexts three levels
of interpretive and practical conflict—the contradictions between and among various
readings of the Laws themselves; contradictions, real and apparent between the Laws and
the ‘spirit of the game’; and finally, the disagreements about and around the content of
our understandings of exactly what constitutes the ‘spirit of the game’.
In all of this, I shall attempt to set out the ways in which these interpretive practices
and disputes embody and reflect debates within and about law. Law and cricket are, I
believe, simply different arenas in which struggles over meanings, interpretations,
applications of rules by adjudicators, judges and umpires in these instances, engage us
politically, ideologically and socially. For example, debates about LBW decisions are
‘the same’ as debates about causation in tort or criminal law; debates about dissent on the
field are debates about contempt and respect for legal institutions in a democracy. And


Cricket and the law

2

sometimes, debates around and about cricket are in reality, debates about the very
existence of law and democracy. Recent controversies about the existence of corruption

and bribery at the highest levels of the game have brought these concerns to the fore of
discussions about the rule of law in cricket. Hansie Cronje has provided us with the
possibility for some of the greatest jurisprudential inquiries of the new millennium.

The Jurisprudence of Hansie Cronje
My friend and colleague Allan Hutchinson has argued persuasively in his recent book on
judging, not just that law is a game of adjudication, but that the core element of all game
playing, including law, is ‘good faith’. Good faith is at the heart of the game of law and
adjudication which is a practice at once free and constrained. It is the understanding and
deployment of good faith that we encounter and play with the vital Hutchinsonian
distinction between ‘anything goes’ and ‘anything might go’ in judging. Thus,
‘Accordingly, good faith can be thought of as acting in line with the spirit of the
enterprise in which one is engaged and respecting other people’s expectations about what
is supposed to happen.’2
This insight offers us the constraining limit which operates between and among the
apparent contradictions of law and the spirit of the game which I discuss in the
subsequent chapters of the book. All the conflicts will be, must be, can only be solved,
within a framework in which the expectations of the participants in the game—law or
cricket—about the definitional content of the game itself, are met. Judges, plaintiffs,
defendants, umpires, spectators, players, all share expectations that certain things will
occur within certain, yet often unspecified limitations. Judges must decide on the basis of
accepted practices and discourses. They must adjudicate, even when in the process of that
adjudication, they must call upon some uncertain criteria, for example ‘public policy’.
They may not, they must not, simply ‘flip a coin’, they must decide and they must decide
as judges. It is when these limitations, however uncertain, on the judicial function, are
violated, when good faith ceases to exist, that at some level, we are no longer playing the
game. Throughout this book, I want to explore these boundaries at the two levels of
playing the game and not playing the game, of law and not law, of the point at which
violation of the Laws becomes at a true level, not cricket.
This is what happened, perhaps, in South Africa in early 2000, when England met the

host country in the fifth Test at Centurion Park. When they visited South Africa for this
Test match series, as usual, England lost. But they did not lose everything. In the fifth
Test, at Centurion Park in Pretoria, England actually won a game. But this is in reality
and in law of secondary importance. What is vital here is the way in which they won, for
quite literally, the very existence of cricket and the law hang in the balance.
A normal Test match will be played, if it lasts the distance, over five days. Each team
will bat, if required, in each of its two innings until its 10 wickets have fallen. Thus, as
we know, the winner is the team which scores more total runs than the other side while
managing to take the 20 opposition wickets. The Laws of Cricket allow a captain to
‘declare’ the team’s innings closed before all wickets have been lost. Normally this will
occur when a team feels it has enough runs to win the game and wishes to leave itself


Introduction

3

enough time to bowl the other team out in order to win the match. However, this is not
what happened at Centurion Park.
There, almost all of the first four days of play had been lost due to rain. In the normal
course of events, the batting side, the South Africans in this case, would have batted on
day five until it became obvious under the Laws that no result was possible and the match
would have ended in the typical dull sort of draw for which English cricket in particular
has unfortunately been noted. However, the South African captain, Hansie Cronje, met
with the England captain Nasser Hussain, at breakfast before the final day’s play and
proposed a novel, even revolutionary, solution. Cronje would ‘declare’ his innings
closed, after setting a score which England had a reasonable, but far from certain, chance
to overcome in its second innings. In return, England would ‘declare’ their first innings
without batting. In other words, the Test would be played to its full in one day instead of
five, an exciting run chase would be guaranteed for the fans instead of the predictable

batting practice. The ‘spirit of the game’ would triumph, as the recent trend of captains
trying for a ‘result’, in other words a win or a loss, to go down fighting etc., would be
carried out by the two sides here. Hussain agreed. South Africa set a target and England
won in the last over of an exciting day's play.
Centurion Park was the first time in the history of Test cricket that a side had
‘declared’ its innings without batting. For the jurisprudential traditionalists, this
constituted a ‘forfeiture’, rather than a declaration. Under the Laws in effect at the time,
they had a good point. A strict reading of the Laws would indicate that such an act by
Hussain was ‘illegal’. Under Law 14(1) and (2) of the 1980 Code, it appears to be quite
clear that
1. Time of Declaration
The Captain of the batting side may declare an innings closed at any time
during a match irrespective of its duration.
2. Forfeiture of Second Innings
A Captain may forfeit his second innings, provided his decision to do
so is notified to the opposing Captain and Umpires in sufficient time to
allow 7 minutes rolling of the pitch.
Law 12 added that a match ‘shall be of one or two innings according to the agreement of
the sides prior to play’ and Law 15 of the 1980 Code indicated that
1. Call of Play
At the start of each innings and of each day’s play and on the resumption
of play after any interval or interruption the Umpire at the Bowler’s end
shall call ‘play’.
Reading these provisions of the Laws in force at the time, it would seem clear that
Hussain’s decision not to bat at all in England’s first innings constituted a ‘forfeiture’,
rather than a ‘declaration’. An innings can be declared ‘closed’ under these provisions
only ‘at any time’ during the match. If there is to be a difference between a ‘declaration’
and a ‘forfeiture’ on these textual provisions, it must be that a declaration can only take

Cricket and the law

4

place once play has started by the umpire calling ‘play’. Not batting at all, a captain
cannot close that which has not already been opened. Since the ‘forfeiture’ provision of
the 1980 Code applied only to a second innings, Nasser Hussain acted illegally in
forfeiting his first innings. This is the position of former Test umpire Don Oslear who
declared therefore that
As a consequence, the innings in progress at close of play on the final day
was England’s first innings. Therefore the real result of the match was not
a ‘Victory’ for England but a draw.3
Oslear was joined by at least two former Test umpires from Australia, Len King and
Robin Bailhache in condemning the illegality of the ‘declaration’. King referred to the
action as a ‘farce’ and concurred with Oslear that it should not have been possible
‘according to the letter of the law’.4
For others, in the majority it would appear, the agreement between the captains was
cricket at its finest. This was not corruption. This was not tainted by a fundamental
illegality. There was no absolute nullity contaminating Hussain’s ‘declaration’. Instead
we must characterize the captains’ agreement as competition in the best traditions of the
spirit of the game. A result was, if not guaranteed, at least on the cards, but the result
depended purely on England’s ability to score the runs against a South African side bent
on preventing them from doing so. In other words, there would be a real game of cricket
in which, as Allan Hutchinson would put it, anything might go.
Christopher Martin-Jenkins declared that while there might be some room for ‘legal’
debate over the distinction between a ‘forfeiture’ (illegal) and a ‘declaration’ (legal), the
two sides played a game of cricket, the fans saw a game of cricket, and the umpires
rendered decisions within the context of a game of Test match cricket. He wrote:
Traditional sportsmanship often seems to be under threat from the
exaggerated aggression of those playing the game for increasingly high

financial stakes. The events of yesterday can have only been good for the
spirit of the game.5
He added
Initiative and a sense of public responsibility triumphed over the kind of
dog-in-the-manger attitude that sometimes gives cricket a bad name. The
result was an unexpectedly tense, intense and downright thrilling
conclusion to a Test match that had threatened to meander away
meaninglessly.6
For another commentator, writing with the hyperbole often associated with cricket, the
game was a triumph of the human spirit.
In any case, cricket was treated respectfully by the captains. Nothing
untoward occurred. No rubbish was sent down, nor any easy runs given
away. They did the right thing. Nature cannot be allowed to dictate terms.


Introduction

5

Man is not so woefully short of imagination nor Test cricket so
insufferably serious that a fair contest cannot be produced when time is
tight.7
The captains acted in the spirit of the game, for which after all, they were responsible
under the Laws in force. Law 42(1) stated
The Captains are responsible at all times for ensuring that play is
conducted within the spirit of the game as well as within the Laws.
Law 42(2) added that
The Umpires are the sole judges of fair and unfair play.8
The umpires offered no apparent objection to the deal struck by the captains. Both sides
played cricket and England emerged the winners of a tight match. Oslear insists on a

close and literal reading of the 1980 Laws and the distinction between a declaration and a
forfeiture. He and others like King and Bailhache, would argue that the captains’ duty to
uphold the spirit of the game must be limited and circumscribed by ‘as well as within the
Laws’. If Hussain had sent out his two opening batters, waited for the umpire to call
‘play’, and then declared before a ball was bowled, Oslear would have been happy that
the Laws had been obeyed. Here the umpiring fraternity seems to be adopting a strict rule
formalism which ignores any idea that in such circumstances the spirit of the game,
obviously shared in these circumstances by almost everyone involved on the day, should
have precedence over ‘the letter of the law’. As former Australian bowler Geoff Lawson
puts it, democracy in the widest sense must be the dominant interpretive norm for
determining whether the ‘declaration’ was or was not ‘cricket’.
Oh, yes, the fans. What a wonderful way to remind us all that the game is
not simply played for the players. Fortunately there are still leaders who
think the game needs to be relevant to fans as we embark on the 21st
century.
…
Now Cronje and Hussain should be praised for their ‘innovation’,
because it reminds us that the game belongs to its followers.9
We know from experience of the game of cricket that in many instances, the idea of the
spirit of the game is meant not just to supplement the grundnorm of the Laws but to
supersede the technical boundaries of the written regulatory provisions. Instead of an
elitist and isolated view that umpires and players should always simply adhere to the
formal text of the Laws, at some level at least this impulse to allow reference to the spirit
of the game as an overarching interpretive norm, seeks to allow not just a greater feeling
of democratic involvement in rule-making and rule-application, but to permit the game
itself to adapt and grow to changing circumstances, according to the agreement and
consent of the participants.


Cricket and the law

6

And the matter does not end there. According to the Laws of the 1980 Code in effect
at the time,
Any decision as to the correctness of the scores shall be the responsibility
of the Umpires.10
The umpires, in raising no objection to the Hussain ‘declaration’ and in confirming the
England victory, have arguably ratified the legality of the captain’s action. Once the score
has been approved by the umpires as an England victory, there is legally an England
victory. The only way in which Oslear can be correct is if he is arguing that the action by
Hussain was what lawyers in the civil law tradition would call an absolute nullity,
something which we might call void ab initio. In such a case, even the decision of the
umpires to confirm the score and the result would be unable to convert an illegal act into
a legal one. But this depends not on a literal reading of a clear and unambiguous legal
text but on an interpretation which gives supremacy to one legal text about when a
declaration may be made over another text which grants power and authority over the
score to the umpires alone. The question for resolution will not be decided by some
reference to legal formalism or legal positivism since it can be decided only by
interpretation. The texts and interpretive strategies and positions compete for
preeminence here. The winner will be the most persuasive argument and the most
persuasive argument will be determined by one’s particular vision of the ‘spirit of the
game’. ‘Cricket’ in other words, will decide what ‘cricket’ is.
Finally, it is perhaps relevant, although in no way strictly binding as matter of the
strict technical rules of statutory interpretation, to note that under the current Laws,
Oslear could have no objections to Hussain’s ‘declaration’ or ‘forfeiture’. Law 14(2) now
reads
Forfeiture of Innings
A captain may forfeit either of his side’s innings. A forfeited innings shall
be considered as a completed innings.

Again, this new legal position is not dispositive of the debate over the Centurion Park
Test. One might argue that the subsequent legislative change supports Oslear’s technical,
formal reading of the provision of the 1980 Code. In other words, the change indicates
that his interpretation of the old provisions was in fact correct and that the legislative
body has acted to correct a position which gave rise to a situation in which, arguably, the
spirit of the game, as embodied in the captains’ agreement, came into conflict with the
letter of the law and their duty thereto. On the other hand, one might equally assert that
the position adopted by the majority of the people concerned, fans, umpires, players etc.
that the decision to bat in only one innings by the England captain was, in fact and in law,
appropriate. The subsequent change to the Laws could then be seen simply as a
clarification by the legislature of a statutory ambiguity. Thus on these possibilities, all
based on a reading of the Laws of Cricket themselves, Oslear was correct, partly correct,
or incorrect, as would be anyone who adopted the view totally opposite to that of the
former umpire.


Introduction

7

Whatever the position one chooses here, the intriguing questions and techniques of
legal interpretation briefly outlined demonstrate that even an argument over the Laws
themselves cannot be solved unambiguously. When we add the complicating factor of the
spirit of the game as a (potential) overriding interpretive referent, life, cricket and law all
become intriguing and complex. Both Oslear and Martin-Jenkins are making arguments
here about what we mean when we say ‘cricket’. They are taking interpretive positions
about how we go about defining the content of the game by making adjudicative
decisions about the meaning of the law. But, for both, the stakes are not the very
existence of the game, of cricket or of the law. They are each acting in good faith as
Hutchinson would have it, respecting and acknowledging, while disagreeing with,

competing claims to truth and legality. Martin-Jenkins might think that cricket would be
the poorer if Oslear’s legal formalism were to carry the day, but he would not think that
we had stopped playing and watching cricket if the match were declared a draw based on
Oslear’s reading of the text. We would still almost certainly be talking and arguing about
cricket and the law within the parameter of the shared understanding of the fundamental
and defining characteristics of both cricket and the law.
Of course, because good faith adjudication takes place within only the limited confines
of the contingent possibilities of what may or might happen, it is a limiting concept which
has only temporary status at any given time and place. What the requirement of good
faith does demand, however, is that whatever interpretation is offered or whatever
application is suggested, it must result from a genuine effort to make sense of the rule in
hand or to deploy law’s argumentative resources in a conscientious way. Understood in
this way, the requirement of good faith is more an issue of moral integrity than a matter
of analytical accuracy; it is less about legal rightness than it is about political
reasonableness.11
Allan Hutchinson and all those of us who might for better or for worse fall at some
time or another into the non-foundationalist camp, would be proud of Nasser Hussain and
Hansie Cronje. Here was a case of democratic rule-making and adjudication in which the
possibilities inherent in playing the game, anything might happen, clearly triumphed over
those who would offer a narrow and formalist technical reading of the legal text and
assert as an apparent epistemological certainty that a ‘forfeiture’ is not a ‘declaration’ and
can never be one. Anything might and can happen when the players of the game, in good
faith, construct a legal practice open to the contingencies of human existence. The
Centurion Park Test was non-foundationalist legal practice at its best. Unless, of course,
we can demonstrate the absence of good faith.
To ‘prove’ the assertion that the Centurion Park Test was played in and exemplifies
the best spirit of the game or at least to argue for this interpretation in a persuasive and
good faith manner, we must place this Test within its context as completely as we can.
We must publicly declare our reasoning and our beliefs in order to meet the test (no pun
intended) of good faith. We must here turn to the question of bribery, corruption and bad

faith.
The world of cricket, from its very beginnings, has been mixed up with gambling and
the possibility of corruption. Indeed, the Laws of Cricket may well have their origins in
an attempt to give some certainty to the limits in which betting and gambling on games
could occur. In the past few years, with the rise of global telecommunications, more and
more international cricket, particularly of the one-day variety, and the existence of a sub-


Cricket and the law

8

continental diaspora, allegations of bribery and corruption in cricket have come to the
fore. The law, history, politics and other contingencies of cricket bribery and matchfixing allegations are complex and I will not go into them here.12 It is sufficient for the
purposes of playing the game at hand, and introducing the issues of legal theory and
practice which inform this book, to note simply that Hansie Cronje was a crook. The
King Commission in South Africa detailed his connections with illegal book-makers and
match-fixing. After his original declaration of complete innocence, Cronje admitted to
receiving money from bookmakers to provide pre-match information, allegedly limited to
weather forecasts, pitch conditions and possibly to the make up of his side.
Several aspects of the Cronje case are interesting for the development of an
understanding of the vital and essential connections between cricket and law. The first
brings us back to the Centurion Park Test match. As a result of ongoing revelations about
Cronje’s involvement in match-fixing a reexamination of the result from Pretoria is
required. The idea that the match was played as the result of a democratic agreement
between the captains and that it was in fact, ‘good cricket’ played in a state of the ludic
interpretive triumph of possibilities, has now been replaced by the idea that the game was
fixed by Cronje. In other words, he made a ‘sporting declaration’ not out of some
dedication to ‘playing the game’ but because his bookmaker friends stood to make lots of
money out of an entirely unexpected and unforeseeable England victory, or even out of a

South African win, neither of which would have been possible if the normal course of a
boring draw had eventuated.13 In other words, a new, unexpected element can alter the
context in which our moral, political and legal decision-making process occurs. History
is, like all else, interpretation and interpretation is contingent. This reinforces the idea that
all judgement and all judgements occur in a contingent world. Anything might happen. A
match which took place and was judged to be in the finest spirit of the game can now, in
a matter of months, in a changing human, legal, political and moral landscape, become,
‘not cricket’. An apparent apotheosis of good faith comes to epitomize the contingent
possibility of bad faith.
Thus
Defeat ended South Africa’s unbeaten sequence of 14 Tests since
Headingley 1998, and some traditionalists held up their hands in horror at
the ‘cheapening’ of the five-day game. But most agreed, including match
referee Barry Jarman and the travelling England supporters who had
endured three miserable days without play, that Cronje’s enterprise was to
be applauded. What subsequently emerged at the King Commission
hearing was that Cronje’s initiative had been motivated by a Johannesburg
bookmaker, Marlon Aronstam, who rewarded the South African captain
with 53,000 rand (around £5,000) and a woman’s leather jacket. As the
odds favoured a draw, a win by either side was the most satisfactory result
for the bookmakers.14
This brings me to a second point about Hansie Cronje’s impact on current legal theory
and practice. It has now emerged, although there is still some doubt about the exact
circumstances of the events, that during a previous tour by South Africa to India, Cronje
passed on an offer to his entire team from an illegal bookmaker for them to lose a game