Cheating, loopholing and metanormativity

Speaker: Professor Mitchell Berman, Leon Meltzer Professor of Law, Pennsylvania University
Chair: Professor George Letsas & Professor Riz Mokal, UCL
Admission: Free
Series: Social & Legal Philosophy Colloquia 2015

Cheating is a commonly invoked moral concept, familiar from our ordinary lives. Roughly, it involves the violation of rules that govern a cooperative enterprise, for the purpose of securing an advantage that the rule is designed to foreclose. But if that is a fair first-pass account of the concept, philosophers of diverse normative domains—ethics, law, and sports—widely agree that that rough statement is imperfect and that we do not yet have a firm grasp of the concept’s nature and contours. Indeed, one prominent philosopher of sport has recently argued that there is no coherent concept of cheating at all, and that the term is simply an epithet that one applies to any rule violations she particularly dislikes.

Against this skeptical thesis, this paper puts forth and defends a novel account of cheating. Much simplified, I propose that cheating involves the violation of a second-order norm of a normative system—what I call a “metanorm”—that regulates agents’ conduct with respect to the system’s first-order (“primary”) norms. In developing and defending this suggestion, the paper aims to offer successful analyses both of cheating and of the kindred phenomenon often dubbed “loopholing,” and also to introduce the concept of metanormativity as a dimension or feature of formal normative systems that promises broad explanatory power and therefore warrants sustained attention. If the effort is successful, the paper might also amount, in small measure, to a brief for “the jurisprudence of sport” as a nascent but rewarding field of legal-theoretic inquiry.

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