“Spirit” versus “letter”: some thoughts about rules and leeway

The background

Last week, I wrote about cricket and codes, shaken 0ut of my self-imposed Rip Van Winkle reverie away from public writing. One of the comments I received was from Stefan Czerniawski, reminding me about David Weinberger’s talks and writings about leeway.

(Incidentally, if you haven’t read David’s work, please do so, starting with The Cluetrain Manifesto. I cannot believe that soon we will be celebrating twenty-five years since he, Chris Locke (sadly no longer with us), Doc Searls and Rick Levine helped prepare us for what lay ahead.)

On his blog, in 2002, David led us into thinking about the importance of leeway in a digital world. As he says, computers don’t do leeway. He then chose to devote an entire section to the concept of leeway:

The Need for Leeway

Let’s say you a sign a lease for an apartment. It stipulates that you are not to paint without explicit permission. But your dog scratches the bottom of the door, so you buy a pint of matching paint and touch up the dog’s damage. You are technically in violation of the lease but no one cares

Let’s say you’re a client of the Gartner Group. Their latest report says “Do not photocopy” at the bottom of every page. But it’d be really helpful if at an internal meeting you could distribute copies of page 212 because there’s a complex chart on it. So you print up 12 copies and hand them out, warning the marketing guy that he’s not to send it out to the press. If Gartner were to haul you into court, the judge would lecture the Gartner lawyer for wasting the court’s time. In fact, by violating your license, you helped ensconce Gartner more firmly in your company.

You are standing on a street corner when a father takes his young daughter by the hand and jaywalks. You don’t call the cops. You don’t even lecture him about why jaywalking is bad. You don’t do nothin’.

Leeway is the only way we manage to live together: We ignore what isn’t our business. We cut one another some slack. We forgive one another when we transgress.

By bending the rules we’re not violating fairness. The equal and blind application of rules is a bureaucracy’s idea of fairness. Judiciously granting leeway is what fairness is all about. Fairness comes in dealing with the exceptions.

And there will always be exceptions because rules are imposed on an unruly reality. The analog world is continuous. It has no edges and barely has corners. Rules at best work pretty well. That’s why in the analog world we have a variety of judges, arbiters, and referees to settle issues fairly when smudgy reality outstrips clear rules.

Matters are different in the digital world. Bits are all edges. Nothing is continuous. Everything is precise. Bits are uniform so no exceptions are required, no leeway is permitted.

Which brings us to “digital rights management” which implements in code a digital view of rights. Yes, vendors and users should have a wide variety of agreements possible, but the nature of those agreements is necessarily digital. If I agree to buy the report from Gartner with no right to print, the software won’t be able to look the other way when I need print out page 212. The equivalent is not having a landlord install video cameras everywhere in your apartment. It’s having him physically remove your mom when she takes ill because your lease says you can’t have overnight guests. 

If we build software that enables us to “negotiate” usage rules with content providers, the rules can be as favorable as we’d like but their enforcement will necessarily be strict, literal and unforgiving. Binary, not human. 

Leeway with rights is how we live together. Leeway with ideas is how we progress our thinking. No leeway when it comes to rights about ideas is a bad, bad idea.

Stefan’s post builds on David’s, and is itself well worth the read.

“Spirit” versus “letter”

In the post, Stefan tells us:

Leeway doesn’t mean that there are no rules or that some people are entitled to ignore the rules, it means that at the margin it may be more important to respect the spirit of a rule than the letter.

There have been a number of comments about the Bairstow incident suggesting that, when it comes to cricket, “spirit” is invoked whenever the outcome of following the letter of the law is not to the satisfaction of the spirit-invoker. I think that does a disservice both to the spirit of cricket as well as to the letter of the law of cricket.

Take Mankading for example, the act of a bowler running out a non-striker for backing up too enthusiastically. I’ve lost count of the number of times I’ve been involved in discussions about Mankading being unsportsmanlike behaviour, somehow bruising the spirit of the game.

That’s nonsense.


The non-striker, by taking off before the ball has been delivered, is stealing distance. He’s giving himself a shorter distance to run. Illegally.

The bowler, by running him out, is acting legally. And the non-striker is out. Legally.

This is where spirit comes in. It’s all to do with intent. Did the non-striker actually mean to steal the yard or two? It could have been a heat-of-the-moment aberration, like a false start in a sprint. And that is how, and why, the idea of a friendly warning probably came into common usage.

Leeway. Judgment. In context.

So it became normal for a bowler to warn the non-striker about his transgression, and to indicate that the next time, he may be run out. Spirit. And in time, letter.

Don Bradman, who I believe was at the crease when his partner was run out by Vinoo Mankad, felt that the non-striker was taking an unfair advantage.

It’s all to do with fairness.

Why do I write this now?

It is possible that we are going to have another right royal argument about spirit and letter and fairness very soon.

Why do I think so? As I inferred at the end of my last post, at Lords in the recent Second Test between England and Australia, the two teams pretty much won the Nobel Prize for missing the daily overs target. This, despite adjustments for wickets and weather and weirdnesses like the Just Stop Oil pitch invasion.

The two teams are up in arms about the potential penalties, since it means that both could land up with negative points from the match.

So the matter is being debated at some ICC meeting somewhere this week, and a ruling is expected shortly.

It’s a hard one. I can understand the sense of unfairness players may feel at having worked hard, creating a wonderful spectacle for all of us to enjoy, and then losing not just their match fees but also earning negative match points.


The rules were clear. And established well in advance of the match. And in place for over two years, including an entire WTC cycle, 2019-2021.

The deficit was reported daily on the scoreboard, for the bowling team, and updated regularly. Neither side can say they didn’t know.

In fact, the same rules were used to pose penalties on both teams for the first Test at Edgbaston. Nobody complained then, probably because the penalties were lighter, which was because the transgressions were smaller.

I’ve seen neither the provisional judgment nor the appeal, so I’m surmising. How can the teams justify an appeal? They’re likely to argue that the modern game has changed, there’s an increased focus on winning, audiences are being treated to more entertaining fare as a result, run rates are running rampant, whatever. Yadda yadda.

The rules were clear. The rules were known. And the rules were broken.

The opportunity

However hard it seems, I think it could be a mistake to change the rules retrospectively. India, England and Australia are probably the three teams that have accrued the most penalty points since the introduction of the rules. Those three teams also probably have the majority of voting power at the ICC. Changing the rules retrospectively could have a very negative impact on the perception of fairness in the game by the other countries. That’s not something that is desirable.

There is, however, an argument that the new WTC cycle has just begun, no team has completed a series, so the retrospection only covers two completed Tests and will therefore be uniform across the whole cycle. A valid argument. But one that relies on how the teams outside the Big Three perceive the action and its fairness.

Whatever happens, there is an opportunity to improve the situation. Let’s step back for a bit. Why was the rule introduced? Because there was a worrying trend in the number of overs bowled in a day, across the whole of Test cricket. Some teams were guiltier than others of this particular transgression, and the penalty approach was seen as a way to improve performance on this front.

Now there is an argument that what matters is the result. I’m not so sure of that. I detest Pink Ball cricket, given how short those day-night Tests tend to be. (There is anecdotal evidence that it has to do with the lacquer used for making the ball pink; for sure something has to be done here).

I’ve also heard rumours and debates about reducing Tests from five to four days, and I’m not a fan of that change either. (I think the Ireland Test early in June was actually advertised as a four-day Test, and I was shocked).

Anyway, this is how I’m thinking. Leave the penalty process for unbowled overs untouched. Instead of changing that, add a few incentives. Add a positive number if the Test ends in a win for either team, with both teams getting that benefit. Add another positive number if the match only completes in the final session of the final day, win, lose or draw, again given to both teams. And add a third, larger, positive number if the match ends in a fifteenth-session tie.

A few other frills may be needed. I think it’s time for a limit on the number of times equipment can be changed, be it the ball, the glove or the bat, per session. A limit on the number of times the run-up and crease ground can be repaired, again per session. I’ve even considered the possibility of bringing in a rule that says once a team is more than x below the over rate (say 3.5), only spinners can be used until the “technical debt” is paid off.

Just some thoughts. Cricket is a wonderful game, and it’s all about fairness. That fairness is brought about by leeways that have been developed over centuries. Sometimes it becomes necessary to convert some aspect of leeway into law. Sometimes it will also become necessary to adjust, amend or even remove some laws.

As long as fairness is seen to be upheld, it will work. Otherwise it’s just not cricket.

Let me know what you think

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