Miroslav Imbrisevic

This thesis is an exegesis and evaluation of Carlos Nino's Consensual Theory of Punishment. Nino (1943-1993) first published 'A Consensual Theory of Punishment' in 1983. There has been little engagement with Nino's theory, and this makes it an appropriate subject for study. For Nino the purpose of the institution of punishment is consequential: a reduction of future harm in society. But there is a side-constraint: only those individuals who consented to the legal-normative consequences of their wrong-doing may be punished, i.e. only those who committed a crime voluntarily and knowingly. Children and the mentally handicapped cannot give valid consent. Equally, individuals who were coerced into wrong-doing cannot be said to consent to the legal-normative consequences of their acts. And Nino's theory also presupposes the offender's knowledge of the law. An individual who does not know that there are legal-normative consequences attached to their proposed act, cannot be said to consent to these normative consequences. The criminal does not consent to being punished, but rather to a change in her normative status. By committing a crime, the wrong-doer consents to the legal-normative consequences, which are necessarily attached to it: liability to punishment. This brings about moral-normative consequences for society/the state: it is now permissible to punish the criminal.

The authors of this book (Travis Bell and Anne Osborne) aim to show (p. 241) “how discourse has been deployed in and around sport to construct medicalized boundaries that reinforce the gender binary by sex.” As a result of this discourse, transgender and intersex athletes have been effectively eliminated from sport. However, Bell and Osborne are oblivious to the fact that they themselves promote the hegemonic ideas of a dominant and entitled class: female categories and spaces should accommodate biological males. This book could have been interesting if the authors had changed its focus: how did trans ideology and trans inclusion (as well as including male DSD athletes in the female category) capture political and social institutions (think of academia), including sport, in “record” time? What are the underlying power relations? Bell and Osborne should have looked in the mirror – they themselves are promoting a particular discourse, a misguided “social justice” programme that prioritises male entitlement. Since we still live in a patriarchy, it makes sense that the men in power (in sports governing bodies, in law, in politics) approved of trans inclusion in women’s sport – and in other areas of society. This was nothing more than a manifestation of misogyny: let us encroach on women’s spaces and rights. And here Antonio Gramsci’s notion of cultural hegemony comes in: many women (alarmingly in academia) also adopted these hegemonic ideas (contrary to their own interests) which support a dominant and entitled class – and all of it hiding under the veil of “inclusion”. Unfortunately, Bell and Osborne fail to unmask these power relations; their discourse analysis didn’t go deep enough.

Former First Minister of Scotland, Nicola Sturgeon, experienced a lot of resistance in and outside her party (SNP) to the transgender self-ID law she was promoting while in office. Her government passed the Gender Recognition Reform (Scotland) Bill in December 2022, however, the government in Downing Street blocked the Bill from getting Royal Assent in January 2023. This may have played a small part in her stepping down as First Minister in February 2023. Recently, Sturgeon used the f-word in an interview: ‘I think what I would say now is that anybody who commits the most heinous male crime against women probably forfeits the right to be the gender of their choice.’ The term ‘forfeiture’ is a legal term and some reflection on it might be useful. Sturgeon, having studied law at the University of Glasgow, is familiar with the term – and did have the right insight. Let me explain why I agree with her. Just like Sturgeon, I have been thinking and speaking about forfeiture recently. If we decide to curb rights, which people normally possess, we need a justification. Forfeiture is one such justification.

The jurisprudence of sport is a recent area of study in the philosophy of sport and in law. It views sports as systems of rules, akin to state legal systems. There are umpires/referees who adjudicate and issue penalties on the field of play. And the rules of cricket, rugby, and association football are called ‘laws’ with good reason. The structure and nature of sports are usually much easier to grasp than a fully-fledged legal system. As a result, lawyers can learn much from them. But the law can equally illuminate contentious questions in sports when philosophers of sport apply well-established legal categories (primary and secondary rules, compensation versus restitution, excuse versus justification, etc.) to games. Since the end of the 20th century, there has been a growing literature and interest in the subject. This entry follows that trajectory.

This is for an edited volume on the philosophy of martial arts - forthcoming: Feeling self-conscious about what you are attempting to do can be a problem for athletes; they either fail to perform or perform badly. Actors, dancers, teachers, or anyone else who is performing in front of others may become self-conscious. In this essay I want to focus on the martial arts teacher and illuminate the problem through some existentialist insights from the German poet and dramatist Heinrich von Kleist (1777-1811) and the French philosopher Jean Paul Sartre (1905-1980). Key words: martial arts; existentialism; Jean Paul Sartre; Heinrich von Kleist; being-in-itself; being-for-itself

This article critically examines the evolving policies surrounding the inclusion of transgender women in women’s sports categories, with a focus on the International Olympic Committee’s (IOC) framework. The author highlights the implications of prioritizing inclusion over fairness, arguing that the fundamental value of fairness in sports is compromised when male-bodied athletes compete in female categories. Through a detailed analysis, the article explores the role of categorization in preserving equitable competition, the impact of physiological advantages, and the socio-cultural narratives influencing policy shifts. It concludes by questioning the long-term consequences of redefining sports to prioritize social justice concerns over their traditional purpose of fair competition.

Over the last decades we have witnessed a proliferation of new human rights claims (e.g. the ‘human right’ to internet access) . But Milan Kundera (1991) reminds us that not all desires are human rights. Trans women athletes (and their supporters) often claim that there is a human right to sport and they derive a further ‘human right’ from this: the right to compete in the sex category with which they identify (i.e. the female category). The purpose of this article is to critically assess these two claims: 1. every person has a human right to compete in sport; 2. trans women have a human right to compete in the female category in sport.

What does it mean to subvert the rules? One way of doing so is to interfere with or curb the display of skill of your opponent by a) breaking the rules deliberately and openly or b) by acting contrary to the idea of sportspersonship. In both instances you violate the norm that displaying/exercising your game-related skills is central for a good contest. In the former you incorporate the penalty rules into the playing rules, i.e. you act as if breaking the rules is part of playing the game. In the latter you adopt a (new) strategy which curbs the display of skill by your opponent, a strategy about which the rules are silent. The motivation for such acts is not to make the game better, but to ensure a win. The former suffers from a conceptual error, because it attempts to make transcendental elements of the game into part of play (e.g. strategic fouling). The latter strategy exploits the fact that the rules are ‘silent’ on many possible actions, because the gamewright cannot envision everything and/or because such actions are contrary to the spirit of the game (e.g. Bianca Walkden’s pushing strategy in Taekwondo; the underarm bowling incident from 1981). In this paper I will illustrate and analyse such rule subversion, combined with some reflections on game rules and the good contest. [There is also a Portuguese translation available on the Movimento website.] Resumo: O que significa subverter as regras no esporte? Uma forma de fazer isso é interferir ou restringir a exibição das habilidades do adversário, o que pode ocorrer de duas maneiras: a) violando deliberada e abertamente as regras, ou b) agindo de forma contrária ao espírito esportivo. Em ambos os casos, ocorre uma transgressão da norma que valoriza a demonstração/exercício de habilidades como elemento essencial para uma boa competição. No primeiro caso, você integra as penalidades às regras do jogo, como se infringir as regras fosse parte da própria dinâmica do jogo. No segundo caso, adota-se uma (nova) estratégia que limita a exibição das habilidades do adversário sobre a qual as regras nada estabelecem. A motivação por trás desses atos não é o aprimoramento do jogo, mas garantir a vitória. Neste artigo, ilustro e analiso essa subversão das regras, trazendo reflexões sobre o papel das regras no jogo e uma boa competição.

Background: Having colonised the social role ‘woman’, and entering female-only spaces, there is one bastion of womanhood left which has always been closed off to men who claim to be women: the inner life, the phenomenology of inhabiting a female sexed body. This bastion has come under attack; trans women claim that they ‘feel like a woman’ or that they are ‘a woman inside’. The aim of this essay is to assess such claims. The appropriation of ‘womanhood’ by males leads to the sidelining of women. Trans women are lauded as exemplars of womanhood. They are crowned ‘woman of the year’, become university women’s officers, represent women in political parties, or are being nominated for a women’s prize for fiction. The message is that trans women make for better ‘women’. The philosophical underpinnings for this view can be found in the work of Talia Mae Bettcher. Road Map: Part I: Recently, trans women have been claiming to have the phenomenal experience of women (I am a woman inside; I feel like a woman). Relying on Thomas Nagel[1] and Frank Jackson,[2] I will argue that they are in error. The inner life of trans women is fundamentally different from that of women, because the former cannot take up the female perspective. Being a woman means, among other things, to have a female body and, consequently, to experience yourself and the world through a female body. This is the core of being a woman, and trans women can never satisfy this condition, because they are – and remain – male-bodied (regardless of any bodily modifications). Thus, such claims are simply wrong. Trans women are not physiologically equipped to share in the female phenomenal experience. Without a female body there is no female experience; the latter relies on the presence of the former.[3] This means that trans women are not women because a) they lack the respective body, and b) they lack the respective phenomenal experience. Their imitations of the female (experience) don’t make them into women. Part II: Trans theory offers a way out, by sidelining the body. Talia Mae Bettcher’s account of ‘first-person authority’ (henceforth, FPA) about gender as well as the ‘liberatory project’ constitutes the strongest defence available to take the avowals of trans people (about sex, gender and their phenomenal experience) seriously. Bettcher’s theory has two advantages. It doesn’t matter whether you have a female body or not, and it doesn’t matter whether you are mistaken about your avowals or not (i.e. the epistemic question). The avowals of transgender people have ‘ethical force’, rather than epistemic force. This would mean that we need to affirm trans women in their belief that ‘trans women are women’, and it would follow that the ethical force would underwrite their claims of feeling like a woman inside. I will subject Bettcher’s cogitations to philosophical scrutiny; this is something that, surprisingly, is missing in the literature. Most subsequent writers adopt Bettcher’s FPA uncritically. I will conclude that Bettcher’s project fails, and that trans claims about having the phenomenal experience of women cannot find support from Bettcher’s FPA. [1] Nagel, T. 1974. What is it like to be a bat?, The Philosophical Review, Vol. 83:4, pp. 435–450. [2] Jackson, F. 1986. What Mary didn’t know, The Journal of Philosophy, Vol. 83:5, pp. 291–295. [3] A stillborn girl is female, although she will never have female experiences. Her body is the condition of the possibility for having female experiences, i.e. for ‘being’ a woman.

One of the buzzwords of today is ‘inclusion’. But the idea that everyone should be ‘included’ is a mistake, thoughtlessly reproduced by many. This holds in the private sphere, as well as in the institutional settings of the public sphere. There is very little conceptual analysis of the term, although there is plenty of literature on ‘social inclusion’ and the political vision of including the marginalized. My aim is to show that there are constraints on inclusion – particularly in institutional settings. Participation in social life is a kaleidoscope of inclusion and exclusion practices; this actually makes social life possible. Without inclusion/exclusion practices social life would be chaotic – if not impossible. Even philosophy journals have submission criteria which permit exclusion: e.g. the paper must not be under consideration by any other journal. Thus, exclusion is not per se a denial of someone’s dignity or a failure to recognize them as a fellow human being. The aim of this short essay is to raise awareness about inclusion and two of its constraints (eligibility and forfeiture), thereby starting a long overdue debate in the humanities. [open access]

The recently published ‘Scientific Review’ by the Canadian Centre for Ethics in Sport about transwomen’s participation in female sport doesn’t deserve its name; it is wholly unscientific. This publication follows a familiar pattern. The body is not important anymore when it comes to categorisation and eligibility in sport; instead, it’s all about a psychological phenomenon: gender identity. This side-lining of the body (which makes the side-lining of female athletes and the inclusion of male-born athletes possible) is now reinforced by an attack on the bio-medical sciences.

As sports have become more professional, winning has become more important. This emphasis on results, rather than sporting virtue and winning in style, probably explains the rising incidence of the Strategic Foul. Surprisingly, it has found some apologists among the philosophers of sport. The discussion of the Strategic Foul in the literature has produced subtle distinctions (e.g. Cesar Torres: constitutive skills versus restorative skills) as well as implausible distinctions (e.g. D’Agostino: ‘impermissible’ but ‘acceptable’ behaviour). In this paper I will review Robert Simon’s defence of strategic fouling and conclude that his justification is not convincing.

Robin Dembroff (Real Talk about the Metaphysics of Gender, 2018) believes that ‘non-binary’ is a social kind. I have my doubts about this, but if it is a social kind, then it is a very special one. The membership conditions of the social kind ‘non-binary’ are only accessible to non-binary persons. They establish and police their own membership conditions (Dembroff 2018: 36f.): ‘Individuals are granted authority over their gender kind membership.’ So, if this is indeed a ‘social kind’, then it is a highly unusual one.

Most people will not be familiar with the term ‘jurisprudence of sport’ (JOS). The idea is that looking at sport through the eyes of a legal scholar might illuminate our understanding of certain problems in sport (and vice versa). The term was first introduced in 2011, in the title of a paper by Mitchell N. Berman, who is also a contributor to this book. In the present volume we have contributions from around the world: Italy, Spain, Germany, Australia, Great Britain, the US and the Netherlands, by authors of various nationalities.

This paper offers a discussion of the rationale for the creation of sports categorization criteria based on sporting genealogy and the gendered body, as proposed by Torres et al. in their article ‘Beyond Physiology: Embodied Experience, Embodied Advantage, and the Inclusion of Transgender Athletes in Competitive Sport’. The strength of their ‘phenomenological’ account lies in its complex account of human experience; but this is also what makes it impractical and difficult to operationalize. Categorization rather requires simplicity and practicability, if it is to be applied to all athletes (and not exceptionally to transgender athletes). This discussion helps us to formulate three general principles for the process of categorization of athletes, relating to fairness, verifiability and practicability.

The ‘jurisprudence of sport’ is a recent academic subject and still in its infancy. The term ‘jurisprudence of sport’ (JOS) was introduced in 2011 by Mitch Berman, one of the authors of the book. It is both an area of study and a method of study. Sport, understood as a system of rules, as a kind of legal system, is an area of study. Different sports, just like different legal systems, will sometimes present ‘competing’ solutions to a problem. As a method it can be fruitful to look at sport from the viewpoint of a lawyer. By analogy, think of psychoanalysis, which is an area of study (of the mind), but also a method, e.g. to interpret literature.

In life there can be good reasons to break the rules. Some sports philosophers have suggested that this also holds for games. In this essay I will compare and contrast reasons for rule-breaking in life and in sports. Some of my focus will be on recent attempts to defend strategic fouling (by Eylon & Horowitz, Russell, and Flynn). Supporters of strategic fouling try to provide a philosophical underpinning for the practice, but they ignore the genealogy of such rule-violations. I will also discuss how some legal theorists view rule-breaking and contrast this with sport. Lastly, I will introduce the idea of ‘transcendental rules’ in games. They are the conditions for the possibility of playing a game. Following Aurel Kolnai, I will argue that strategic fouling violates a transcendental rule – it is not just a moral error, it is also a conceptual error.

Words don’t just describe the world; they change the world. We do things with words as John L. Austin (1975) has argued. But words can also change how we think about something. In this piece I wish to examine the everyday usage of words referring to strategic fouling, as it cuts across various languages. In some languages this rule-violation gave rise to figurative language after the practice became widespread. We find euphemisms but also dysphemisms, as well as evaluative language (whose purpose here is to excuse the action). This is important, because ‘if thought corrupts language, language can also corrupt thought’ (as George Orwell observed). I will argue that euphemisms and other evaluative language which refer to strategic fouling are a piece of sporting propaganda, aiming to dull our senses to such rule-violations.

Some philosophers of sport have suggested that strategic fouling is acceptable if you pay full compensation. In this paper I will argue that the idea of ‘compensation’ is conceptually inadequate to deal with strategic fouling. Compensation is a legal remedy designed to make the victim of a wrong whole again, i.e. make good the loss or harm they have suffered. But compensation as the analogon between law and games is ill-conceived when applied to strategic fouling. I will suggest another analogon from the law of obligations – restitution – which is more apt to deal with strategic fouling and which shows more clearly why the ‘compensation’ prescribed by the rules often fails to restore the fouled side.

Max Ungar (1850-1930) was born in Boskovice, Moravia, and pursued an academic career in mathematics at Vienna University [Franz Brentano was one of his examiners]. His memoirs describe his escape from Orthodox Judaism into a century of high liberalism and the turning to science and knowledge and his failure to achieve the humanism that he was devoted to as a result of anti-Semitism. Although he wrote his memoirs chronologically, there is a recognisable leitmotif: on the one hand his escape from Orthodox Judaism into a century of high liberalism and the turning to science and knowledge; while on the other hand it charts his failure as a devotee of the humanism he was dedicated to as result of his pursuit of science and knowledge. In this respect Max Ungar’s reminiscences written in 1928 but covering the period 1855 – 1892/1928 are particularly significant for their overlapping topics: for its Jewish history during the Austro-Hungarian monarchy in the 19th century and for the portrayal of identity in the modern period. He concentrates on important events in his life, passing the matura/school exam. Helping in his father's business. Falling in love, keeping the engagement a secret, while at university. His time at university and his love of mathematics. Also the academic intrigues and pettiness - not much has changed. Then leaving academic life and working in the business. Trying to get back into academia 5 years later, but without success. His home life, travels with family, visiting friends, information about his wider family: who married whom, how they met, who died, etc. Stories from the business. The difficult relationship with his father. His critical stance towards Judaism. He also relates incidents of anti-semitism in business but also at university. This is the first translation of Ungar’s memoir into English (originally written in German) - translated by Miroslav Imbrisevic. The book is free to download.

Given Bernard Suits’ stature in the philosophy of sport, his take on strategic fouling, surprisingly, hasn’t been given much attention in the literature. Rather than relying on a purely empirical or ‘ethos’ approach to justify the Strategic Foul he provides a mixed justification. Suits’ account combines a priori and a posteriori elements. He introduces a third kind of rule, which appears to be unlike rules of skill or constitutive rules, into his conceptual scheme. Suits claims that it is sometimes tactically correct to break such a rule in order to gain an advantage. I will argue that the a priori element in his justification of strategic fouling is unconvincing because there is nothing special about ‘third type’ rule-violations, which incur a ‘fixed penalty’. Furthermore, the a posteriori element ultimately reduces to a rule of skill, and it is doubtful whether it has sufficient normative force to warrant breaking a rule. But, most importantly, the a posteriori element degrades the power of the a priori element.