In my previous post, I looked at the recent proposal to legalize betting in sports in India and reflected upon the question of the moral authority of the state to ban conduct such as betting. In this post, I examine some of the justifications offered for the non-implementation of betting laws and the impact of legalization of betting on fixing.
Even as the recent IPL scandal has exposed intricate links between fixing and betting, a solution to betting is being proposed as a solution to fixing. There is a difference between fixing and betting. I don’t think anyone would support legalized or regulated fixing. Fixing is deplorable; it turns a match to a scripted episode, denies honest players a chance to win (or lose) a game on their effort (or the lack of it), and undermines the faith the fans repose in the game and the players. However, legalization of betting in sports is being seen as one of the solutions to mitigate the practice of fixing.
There are mixed reactions to this proposal. On one hand, it seems that betting causes fixing, because bookies are willing to pay players and fix the game to make substantial profits by changing the odds in their favour and winning bets. On the other hand, it is argued that legalization will help monitor the conduct of bookies, take betting away from criminals to financed bookies who have incentive to report corruption, and provide regulatory authorities with a data source to rely on when investigating cases of suspicious bets and fixing. It is also argued that the law should allow regulated betting rather than waste resources imposing a blanket ban which, in any case, is impossible to implement fully. Whether legalization of betting will actually help check fixing or not is debatable. It is argued by some that such experiments in the past have not worked, for example, fixing exists in football even in countries where betting is legal, and spot fixing occurred in cricket in England in 2010 involving Pakistani players, although betting is legal in England.
Here, I do not want to pronounce upon whether a betting ban is in fact impossible to implement and whether legalization will actually help control instances of spot fixing and match fixing. What I do want to reflect upon is whether obedience to a law (i.e. whether a law is generally followed by people) should be a valid ground to repeal or change the law? Assuming these justifications are in fact correct, should that be a good reason to legalize betting? There are two aspects of this argument involved here: one, betting laws themselves are incapable of being fully enforced; and two, legalization of betting will make another law (anti-fixing law) more efficacious.
Enforcing Laws on betting
Let us begin with the first aspect. I believe that the argument in favour of changing betting laws due to their non-enforceability has been received quite comfortably and without much challenge. Similar arguments to legalize conduct because of the perceived difficulty in implementing them have been made in other areas like prostitution and illegal migration. In India, many laws remain unenforced and many crimes happen despite strict criminal laws. I don’t believe anyone would argue that we should, for instance, legalize rape just because rapes will anyway continue to occur. What about anti-piracy measures under copyright laws?
Of course, no one is so naïve as to argue for legalization on the sole ground that implementation is not possible. However, we need to examine if this should be a ground at all. I feel there is some laziness involved in making the argument to change laws just because they are not being implemented. Questions on legalization of prostitution vis-a-vis rape has got nothing to do with implementation, but about substantive questions about what we consider legal and illegal. I am not saying that the consideration of actual enforcement of a law is irrelevant to law making. However, by itself, inefficacy and non-implementation are not the grounds to change a law.
So what are these other considerations? At first, we need to examine if a law is actually ‘impossible’ to enforce. Many laws may be easy to make but difficult to implement. Is the question really about the difficulty of enforcement or the inadequacy of our enforcement mechanisms? Road traffic laws may be ‘impossible’ to fully implement, but when they are strictly and correctly enforced by concerned authorities through fines and other penalties, these laws may become more efficacious.
Legal philosopher Hans Kelsen has a fascinating point of view on this. He states that the validity of a law is not conditional on the law being efficacious. In fact, according to him, if a norm is anyway followed by all, then the enactment of the very law is meaningless. This indicates that some discord between the law and reality is bound to exist. We may think of ways to make existing enforcement mechanisms better or consider adopting different enforcement mechanisms, without changing the substantive law.
Non-efficacy may help us question some more substantive aspects as well. We may look at the ‘mischief’ that the law seeks to remedy and reconsider if we really do want to regulate that ‘mischief’. For example, in my previous post I considered whether the state should criminalize victimless conducts like betting. If yes, what is the best way to address the mischief—stricter criminal laws as was done in recent amendments on rape laws, or decriminalization coupled with regulation as is being argued in the case of betting? If majority of people are disobeying a law, it might be a good ground to examine our motives and strategies, but not by itself to change the law.
We also need to consider some of the ‘side-effects’ of existing laws. Arguments for relaxation in betting (and prostitution and migration) laws involve not only the continuation of the banned conduct, but also that these laws drive illegal conduct underground, furthering the mischief. Drawing from Justice O.W. Holmes’ Bad Man theory, instead of eradicating the evil, the law may instead drive the bad man to engage in it more clandestinely, causing greater harm.
This brings us to the second aspect that legalization of betting will help address the bigger problem of fixing. The argument is to decriminalize one conduct to check another crime, probably a higher evil (like relaxed migration laws may help reduce vulnerability of migrants to exploitation and forced prostitution). Again, rather than treating this as a ground for legalization itself, there is a need to examine the motives and regulation strategies of the conduct sought to be legalized. There is also a need to examine the strategies being used to counter the higher evil, in this case, fixing. What other possible strategy may prevent a ‘bad man’ from engaging in a wrongful conduct? If the motives behind criminalizing the lesser evil are justified, the improved efficacy of the other law cannot by itself be a ground for decriminalization.
Thus, while concerns around efficacy and non-implementation are valid, we need to use these concerns to question and address the more significant issues. If the real problem lies elsewhere, we must not lazily use these as excuses to change the law.