The Six Nations match between England and Italy at Twickenham on February 26 created quite a stir. Not so much for the quality of the rugby, but for a tactic adopted by the Italian team which appeared to catch England completely off guard for the best part of the first half.
The tactic involved a clever and perfectly legal interpretation of the laws on rucking, in which the Italian team did not contest the ball after tackling an England player, meaning they did not have to adhere to an offside line. What surprised so many spectators and commentators was not the tactic itself but the fact that the England players seemed entirely ignorant of the law in question.
This was clear for all to see as England captain Dylan Hartley and his team mate James Haskell were forced to confront referee Romain Poite, in order to ask for “clarity” on how to form a ruck and exactly what the rule was that Italy appeared to be exploiting to their advantage. England were, as the former Irish international and BBC pundit Paul O’Connell claimed, quite simply “baffled”.
England managed to win the game 36-15, but in interviews immediately after the match the coaches of both teams were unsurprisingly very different. The Italian coach, Conor O’Shea, said that Italy didn’t come to spoil the game, but to play it “within the rules”. But for England coach, Eddie Jones, while Italy’s players might have executed their plan “brilliantly”, as far as he was concerned “it wasn’t rugby”.
As a lawyer and rugby fan, this incident fascinates me on many levels. It illustrated a shrewdness on the part of the Italian coaching staff concerning the laws of rugby. But it also neatly illustrated certain general truths about the experience and relationship we all have with the laws that govern and regulate us. Not just in the sporting arena but in many aspects of social life.
We are all constrained by laws. Yet we often live with a degree of ignorance as to the precise nature of the law or its ramifications, and do so in spite of the legal principle that ignorance of the law is no defence from liability for breaking it.
A certain degree of legal common sense means that individuals are often conscious of the laws that govern them even if they do not know the exact letter of the law.
For example, in the normal course of a rugby game, players demonstrate this legal common sense. They are able to understand the applicable rules for a given part of the game, rucking for example, without having to stop and think consciously about them. That is, of course, until an extraordinary intervention, such as the Italian tactic, disrupts the normal flow of events. At that point, as the England team demonstrated, things begin to slow down as individuals are forced to consciously consider a situation and its legal implications.
But common sense is not the whole story. Alongside laws of which we are more or less ignorant is an anticipation that people adhere to something extra beyond the law. Whether we choose to call that equity, natural justice or relate it to some moral code such as good sportsmanship, this “something extra” acts to create important social bonds. It allows individuals to reach collective and mutually beneficial agreements without constant reference to the law.
It is a plain if inconvenient truth that laws often cause division and foster a lack of social harmony, even where that was not the intention. For example, my neighbour has every right to build on their land as long as they have the agreed planning in place. And as long as the building work is conducted during reasonable hours of the day they are effectively adhering to the letter of law and I can do little or nothing about any disruption it causes to me.
Consultation procedures prior to the start of any building are one way in which planning law anticipates and attempts to mitigate any problems between neighbours. But the law cannot cover all potential grievances. And if I work from home for instance, there is a good chance the work will be quite disruptive. The resolution to this irritation will not come from the law, but from somewhere else and from something extra: from a mutual desire between the neighbours to resolve the situation in order to preserve good, neighbourly relations.
These extralegal rules – that accompany the law – are therefore a vital part of social life, and of what makes us human.
Jones’s comments after the Italy match revealed his belief that there is more to the game of rugby than its laws. He appealed instead to what might otherwise be seen as customary ideals, a sense of honest fair-play, or even decorum. All of these sit alongside the law. But they also suggest alternatives in the face of laws perceived to be harsh and unbending. His suggestion that “it was not rugby” clearly echoed the old adage concerning conduct seen as immoral or dishonourable: that it is just “not cricket”.
Jones knew that no laws had been broken. Nonetheless, he directly evoked and appealed to the importance of the spirit of the game in order to highlight an ideal beyond the law. In other words, that extra something that lives both within, as well as beyond, the letter of the law.