From the Director

Dr. Daniel E. Wueste

As some of you may know, Clemson University President James Barker was recently appointed chair of “one of four working groups [charged by the National Collegiate Athletic Association (NCAA)] with recommending changes to improve the culture and operation of Division Iintercollegiate athletics”.   What this working group, “Collegiate Model: Rules,” will be doing is very important.  It is also the prompt for a Creative Inquiry course, Phil 492-001 Revising rules and regulations in the interest of integrity, that I will be teaching this spring with some help from President Barker.  (In the interest of full disclosure I should note that the course is the upshot of President Barker’s interest in making the most of this “teachable moment” for Clemson students).  If I may, I’d like to try to give you a sense of what we’ll be doing and its relevance beyond the realm of intercollegiate athletics.
 
Subjecting human conduct to the governance of rules…  That, according to legal philosopher Lon Fuller, is a good way to define law because it articulates the aim or purpose of the legal enterprise. (The Morality of Law revised edition, 1969).  Of course, not every effort to subject human conduct to the governance of rules involves the machinery of law—a legislature or courts, for instance.  Rules govern what human beings may or may not do in a game, for example, and organizations, e.g., businesses, both large and small, the American Institute of Architects, the American Medical Association, universities, or the NCAA, seek to govern the conduct of their people, that is, the people within the organization.  This is not easy, and that is so for several reasons, notably,

1.        People seem naturally inclined to seek a way around a rule when it stands in the way of doing something they want to do; for example, thinking that if there is no rule against it, it can’t be wrong, they struggle to find an interpretation of the rule that would not include the action they want to take (or have already taken).

2.       Even when no one is consciously trying to evade a rule, although there surely are clear cases, it often happens that a rule has to be interpreted; more important, there can be (and certainly there are) disagreements about how this should be done as well as disagreements among those who agree on the method of interpretation.  In this connection I am reminded of something Justice Oliver Wendell Holmes said in discussing the job of a judge and judicial dissent.  It’s not, Holmes said, “that one side or the other [is] not doing their sums right.” (“The Path of the Law,” 10 Harvard Law Review, 1897.)

3.       Some rules—in the broad sense of indicators of what we should or should not do—are implicit rather than explicit, i.e., they are customary or conventional rather than enacted.  They often consist of shared expectations or understandings intimately tied up with an enterprise or undertaking.  So, for instance, to borrow a famous example from philosopher Ludwig Wittgenstein, when a parent tells the babysitter, “Show the children a game,” all will agree that it is not necessary to say, “but not gaming with dice or Russian Roulette.”  For surely, if the parent were to return and find that the babysitter was showing the children one of these games, no one would say that this is the parent’s fault, that she/he acted irresponsibly in failing to tell the babysitter not to show the children these games. (Philosophical Investigations, 1958.)

4.      Rules don’t apply or interpret themselves.  People do these things.  When we talk about compliance, or the lack of it, we are talking about the choices and actions of people. 

To be sure, this is only a partial list of things that make the project of subjecting human conduct to the governance of rules difficult.  However, though far from complete, it reveals some of the challenges those charged with making or revising rules have to keep in mind as they work. 

In the Creative Inquiry course students will become familiar with the NCAA rules and the challenges that arise in their application.  They will explore the ways in which the challenges that arise in this context are similar to those confronted in other contexts, e.g., the making and application of law or the governance of organizations such as businesses or professional associations.  They will investigate what’s at stake in dealing with such challenges.  (Who are the stakeholders?  What, precisely, is at stake for them?)

The instructors will lay the groundwork for inquiry by students.  However, as a Creative Inquiry, the key/critical component of the course will be the work of students.  They will share the results of their inquiries in class as they work to prepare a final research report, which will be presented at the end of the term.  

Specific areas of student research/inquiry may include

• The history of the NCAA rules, including, for example, the purpose(s) of the rules; rule making procedures; previous revisions and what prompted them.
• Evaluation of success: were the things that the rules were meant to achieve actually achieved?  How is success in this regard (or the lack of it) best explained?
• In general as well as with respect to the NCAA rules:
• What challenges await those who are tasked with writing rules? 
• Do those tasked with revising rules face the same or different challenges?
• What sorts of things prompt calls to revise the rules?
• What’s the best way to approach the task of writing or revising rules?
• What sorts of problems arise in the application of rules?
• What’s at stake in the drafting of rules?
• What’s at stake in the application of rules?
• How are the NCAA rules related to the integrity of intercollegiate athletics?
• What’s the connection between the rules governing an organization and its integrity?

I am excited about this course, so I will warn you now that I’m likely to use this space again to talk about what the students are doing in the course.
As always, I invite you to read and enjoy the articles in this issue of RIE’s Issues and Perspectives. I feel sure that you find something of interest here.  

We are grateful for your interest in and support of the work we do at the Rutland Institute for Ethics.