Justice Scalia on “the very nature of a game”

Below is my comment on one of the late Justice Scalia’s remarks in his dissent in PGA TOUR, Inc.v. Martin, 532 U.S. 661 (2001): “But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is ‘essential.’”

The essence of games as “amusement” might be true in those instances where “the action begins and ends in itself” (‘it is not the marbles that matter but the game’), where, in the words of Johan Huizinga, “the result of the game is unimportant and a matter of indifference.” But I doubt it’s true that “amusement” is the only object of a game, which would appear to render it the essence of a game. Although such a view is not far from Bernard Suits’ definition of a game as “the voluntary attempt to overcome unnecessary obstacles” (a definition that may have some relevance to a conception of art in which work is also play, and involves both conventions and constraints that serve, in one sense, as both necessary and unnecessary ‘obstacles’ that, when overcome, enable creativity).

Organized professional sports, as one type of “game,” and all of which, in turn, are more or less a species of play, have several “objects” in view, even if we’re restricting our reference to the class of spectators. We seem to vicariously identify with the various athletic skills of the athletes and, in the case of the World Cup, fans often participate—vicariously or otherwise—in the group identity that takes nationalist form. Perhaps one could place this under amusement in the sense of pleasure or a diversionary interest of some sort, but then how does that account for such things as “football hooliganism” or the range of emotional expressions one sees during these games, or the importance ascribed to more than a few parties in winning, either a particular game, or the World Cup itself (one can make the requisite analogies with the PGA). And of course professional sports are money-making enterprises which makes them one kind of capitalist “productive activity” and thus these types of games are not in the first place distinguishable as games from “productive activity” (moreover, ‘game theory’ and ‘gamesmanship’ in politics remind us, ‘amusement’ does not aptly characterize the ‘very nature of a game’).

And the (‘profane’ or secular) ritual quality of or the ritual elements in sports events, ranging from the fairly serious or dour to the pompous and silly, appear increasingly, in one way or another, to be one of the principal properties of modern, professional sports (which may be amusing to those on the outside-looking-in!). Finally, think of the rhetoric of “war games:” “Ever since words existed for fighting and playing,” writes Huizinga, “man have been want to call war a game.”

That the nature of a game (or games) in our world (in other words, looking at prominent games in our society), at least in professional sports, is not reducible to “amusement,” is crystallized in the conclusion of Huizinga’s class, Homo Ludens: A Study of the Play-Element in Culture (1950, first edition in German, 1944): “Now, with the increasing systematization and regimentation of sport, something of the pure-play quality is inevitably lost [this was written before sabermetrics in baseball!]. [….] The spirit of the professional is no longer the true play-spirit; it is lacking in spontaneity and carelessness” (Huizinga notes that this has also affected—‘infected—‘the non-athletic games where calculation is everything, such as chess and some card-games’).

And invoking the distinction (which, as Frederick Schauer reminds us, is not hard and fast) between “constitutive” and “regulative” rules in the case of sports, one might plausibly claim the former are essential while at least some of the latter are not, indeed, at least some of these might be considered “peripheral,” at the very least, they are not essential to the sport in the way its constitutive rules are, hence they are more liable to change: be it through addition, subtraction or elimination, alteration, etc. In brief, there are sports and there are sports; there are games and there are games; and there is play and there is play.

[Thanks to Anthony Gaughan, whose post at The Faculty Lounge, ‘Justice Scalia on Arbitrary Sports Rules,’ first prompted my comment.]