This week, the world of competitive swimming was engulfed by controversy as South African swimmer Cameron van der Burgh admitted to using illegal “dolphin kicks” in his gold medal-winning and world record-breaking 100m breaststroke swim last week. Of course, revelations of cheating at the Olympics are a dime-a-dozen these days, and van der Burgh’s infraction was trivial according to most. What made it fascinating from an ethical standpoint was the purpose of the admission. Van der Burgh was not, it appears, laboring under a guilty conscience and desperate to unburden himself of his dark secret. He was quite casual about his admission, and made no great show of penitence nor showed any intention of relinquishing his medal. Nor was he being hounded and threatened with investigation, of being stripped of his medal unwillingly, and so confessed to cut his losses. On the contrary, he runs no risk of losing his medal, because only the on-the-spot umpires can enforce such violations, and although a few questions had been raised in the media, there was no great controversy or public scrutiny until after he made his remarks.
Rather, van der Burgh voluntarily fessed up because he wanted to invite further scrutiny and controversy, he wanted the rules to be enforced more strictly. The problem, he complained, was that FINA had made rules about what constituted illegal swimming techniques, but then had not taken the necessary steps to enforce such rules (making use of underwater footage), thus leaving athletes with the duty to be self-policing. Van der Burgh suggested that this was an unfair burden to lay on the consciences of athletes. He even went so far as to admit that what he had done was probably immoral, but what else could he do, since almost every other swimmer was cheating as well? Cynics will have little difficulty in pooh-poohing this as mere spineless excuse-making, but remarkably, van der Burgh’s rivals Brenton Rickard and Brendan Hansen made no attempt to lash back (particularly remarkable in the case of Hansen, who insists that he is not among the large majority that break the rules in this way). Hansen said,“I give him credit for actually having the guts to come out and say something and be honest because maybe that’s what it’s going to take for the organizations running swimming to use the technology at their disposal to enforce the rules.”
And while we can hardly admire him, perhaps van der Burgh does have a point. Perhaps it really is too much to ask of athletes to be self-policing, and it’s not just the rotten ones who cheat. If you’ve dedicated your life to a competitive sport, and what separates success and immortality from lasting mediocrity is a few tenths of a second that can be gained by one illegal maneuver, that’s a lot of temptation to bear. And once there are a few who have already succumbed to the temptation, it becomes that much harder. Van der Burgh clearly thinks of himself as a basically clean, right-minded athlete (and he has an impeccable record), but one who is not going to stand aside and let all his training go to waste because only those with the fewest scruples will have a chance to win. He would much prefer not to be a cheat, and to have all temptation taken away from him by proper enforcement: ‘‘I think only if you can bring in underwater footage that’s when everybody will stop doing it because that’s when you’ll have peace of mind to say, ‘All right I don’t need to do it because everybody else is doing it and it’s a fair playing field.’ . . . [At one competition where such footage was used] it was really awesome, because nobody attempted it [the dolphin kick]. Everybody came up clean and we all had peace of mind that nobody was going to try. . . . I’m really for it. If they can bring it, it will better the sport. But I’m not willing to lose to someone that is doing it.’’
If we can resist the urge to be cynical, and to ask whether competitive sport ought to be the object of such wholesale devotion, we can glean from this episode a valuable insight about the roles that law and law enforcement play in human life. (Indeed, Victor Austin argued in an excellent paper last fall at the conference of the Society for the Study of Christian Ethics—now published in the journal Studies in Christian Ethics—that we can use sports as a paradigm for understanding the function of legal structures and various sorts of authorities in society.) For we (and I speak here autobiographically) are often tempted to view law enforcement with a skeptical or scornful eye, as something oppressive and almost intrinsically violent, as “coercion”—which of course, it is, but what a negative connotation that word carries! Law enforcement is perhaps a necessary evil, for the bad people out there who would otherwise murder and steal, but for most of the rest of us decent people, it’s an unwanted and unneeded imposition on our liberty.
Increasingly, indeed, the whole concept of law is an unwelcome one, intrinsically at war with the highest value—liberty. All the evil in the world, we are told, comes from people trying to force other people to conform, and everything would run so much more smoothly if everyone was allowed to pursue their own idea of the good. This is like saying that the ideal sport is one without rules, and without umpires, in which each competitor follows his or her own sense of what the competition demands. In economics, this libertarianism concludes either that all individual competitors will somehow conclude that it is not in their best self-interest to cheat, because then that would provoke others to cheat still further, or else that by everyone cheating out of their own pursuit of self-interest, a better sport for all would result (a 100m breaststroke in which the competitors now do nothing but dolphin-kick!). Of course, this libertarian mindset has a theological parallel in Anabaptism, which likes to think that laws and coercion should be needless, because everyone should just follow the law of love, and if we suffer from the evil people who don’t, we should count ourselves privileged.
Or perhaps we grant that yes, laws are a good thing, because they define the good for us publicly, establishing a standard so that we all know how we ought to act and what we ought to aim at. But the chief purpose of law is instructive, not coercive. To be sure, coercion will be necessary because there are wicked people who will refuse to pursue the good to which the laws point, heedlessly harming others, and they must be restrained. For the Christian, though, who recognizes all laws as specifications of the law of love, this coercion is needless. The Christian is subject to the law, but not to the sting of the law, to the guidance, but not to the enforcement, because he doesn’t need it. The ideal, from this standpoint, is to no longer need the heteronomy of law enforcement, because one has achieved the autonomy of a conscience wholly in conformity to the end of the law. This is more or less the standpoint proposed in Johannes Heckel’s interpretation of Luther, Lex Charitatis. And I have argued similarly at many points. From this perspective, we should try to encourage people to become self-policing, as FINA was doing with competitive swimming; enforcing laws by penalties simply encourages people to do the right thing out of fear and compulsion, rather than genuine love of the good.
This is true, of course, as far as it goes. But the flaw of Heckel’s interpretation of Luther is its forgetfulness of simul justus et peccator, and so we must beware of thinking that coercion is only for the wicked, for we are all wicked. The self-directed conscience obedient to law out of love and in no need of outward policing is indeed a good ideal, but we mustn’t forget that it is for all of us in this life only an ideal. For this reason, the invitation to self-policing is for many of us at many times not a free grant of liberty but an intolerable burden, as we are called to struggle against self-deceptive desires that constantly distort our concept of the good and sap our will to pursue it. Particularly when we see others around us abusing their liberty, the pressure to abandon the struggle and join them becomes unbearable, and we long to be freed from the burden of such liberty. When we as a society make laws and grant to others the authority to hold us to them, then, we are not merely trying to protect ourselves from evildoers without but from the evildoer within each of us, and asking the common authority to carry some of the weight of the burdensome task that otherwise falls entirely on our consciences. From this perspective, law enforcement can actually be liberating, reducing the array of temptations that would otherwise paralyze us to a manageable number, empowering us rather than encumbering us in our pursuit of the good.