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348 Chapter 15
and error put us in a position to correct mistakes – at the individual level. Go
down to the pro shop and look at the new range of clubs designed to improve
play. All of a sudden you are part of a social practice in which centuries of trial
and error have put manufacturers of equipment in a position to make
improvements to ball and club design – at the collective level. Golf, so
understood, reveals itself to be a social practice in which the ‘downward
causation’ of multiple participants enables all boats to rise – at least a little –
without any one person or any one authority responsible for such a rise. 14
3 Legal theory and legal practice
3.1 Law and the academy
Golf is simply one of many conscious norm-governed and norm-creating
practices that enable us to focus on aspects of our environment, while
simultaneously holding them up for critical scrutiny, in order to form better
responses (descriptively and prescriptively) to the environment. 15 Legal
academic life is another such practice. This reply itself is a product of such a
practice. It relies to a significant degree on the legal, philosophical and scientific
contributions of others. (Indeed, the originality of the paper lies primarily in the
application and the synthesis of these other contributions to philosophy, social
theory and legal philosophy.) More importantly for my argument, legal
academics – the legal community’s theorists – function as (one of many)
feedback mechanisms for error correction and truth propagation within South
14
See DT Campbell & JM Russo Social experimentation (1999); DT Campbell
‘Evolutionary epistemology’ in P Schipp (ed) The philosophy of Karl Popper (1974). Golf
is a practice that dates back several hundred years. Moreover, it is now a practice that
has generated significant amounts of study as to what the body does during the swing
and how the body’s movements can be orchestrated in a manner that produces the
greatest and the most consistent amount of accuracy, power and control.
15 That golf is a norm-governed, critical, reflexive and norm-creating practice at a number of
different levels is evident to anyone with even a passing familiarity with this form of life.
We can start with the rules of golf. A deceptively small (but thick) book lies in my study.
Given the disarmingly simple title Rules of golf, produced (and updated regularly online)
by the Royal and Ancient Golf Club of St Andrews (R&A), it tells you, in detail and at a
level of complexity that might defeat the average tax lawyer, the rules that govern the
game of golf. Few other legal regimes apply, and are enforced, globally in a manner that
is so designed to ensure fairness everywhere. Moreover, the rules of golf constitute one of
the few legal regimes in which self-enforcement is the norm. The stakes for professionals
are quite high. On two occasions during the US Professional Tour in 2010 (roughly 35
tournaments), players called penalties on themselves that resulted in the loss of the
tournament. Golf actually requires ethical behaviour of the highest order: Indeed, it is
deeply committed to justice as fairness. Law only requires that one does not get caught:
golf requires that one catch oneself. Moreover, both the USGA and the R&A regularly
alter the rules to ensure that justice as fairness remains the guiding principle of golf. After
changing the rules on the shape of grooves in clubs in 2010, both the USGA and the R&A
took cognisance of the Orwellian role of television in golf and generated a new rule in
terms of which a delayed recognition (post signing of a scorecard by the golfer) of an
infraction (caught by anyone, including the golfer, with access to a live or a subsequent
televised broadcast) results only in the imposition of a two-stroke penalty and not the
heretofore Draconian disqualification of the golfer from the entire tournament. The
purpose: fairness, not retribution.