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Would Hayek vote for Mark McGwire?

In this ESPN column, Jayson Stark explains why he voted for Mark McGwire for baseball’s Hall of Fame:

But in reality, we hardly know anything about what anyone in the sport may or may not have done during those anarchic 1990s.

So just as baseball allowed Gaylord Perry to go out and cheat
his way to 300 wins — and eventually admire his plaque in the Hall of
Fame — it allowed McGwire and a host of other players to compile their
stats, break their records, earn their money and listen to all those
roaring crowds.

And now here it is, Hall of Fame election time — and cleaning up this glop is supposed to be our
problem? Sorry, the only way to be consistent about this generation is
to apply the Gaylord Perry standard — and evaluate what the sport
allowed to go down on the field. Either the ’90s happened or they
didn’t. And we all saw them happen.

We saw hitters on steroids face pitchers on steroids, as
hundreds of players all around them used the same stuff, looking for
the same edge. But we’ve never heard most of their names. So I feel
more comfortable voting for players like McGwire than I do trying to
pick and choose who did what, and when, and why.

A lot of the steroids controversy comes down to one very ugly word: cheater. Cheaters don’t belong in the Hall of Fame. But when you chew on the word for a while, you realize that cheaters come in lots of different flavors. Gaylord Perry is one of those flavors. Here are a few more:

The batter glances down at the catcher when he flashes the sign to the pitcher so the batter can know which pitch is coming.

The runner on second steals the sign from the catcher and signals to the batter wht the next pitch is going to be.

The home team has a person with a telescope hidden beneath the stands. That person steals the sign and communicates with the dugout who relays the sign to the batter.

Are any of those cheating?

The first example, where the batter steals the sign directly, is considered, I am told, against the code of baseball. What does that mean? It’s simply not done. There’s no rule against it, no legislation. But there’s a law against it, meaning that everyone in baseball understands that it’s not to be done. If you do it, the pitcher will throw at your head.

As my co-host Don points out in this podcast, Hayek makes a profound distinction between law and legislation. Law is an emergent phenomenon. It’s not decided or decreed. It emerges from our culture and the behavior and the interactions of individuals with each other. Legislation is what is decreed. Sometime legislation is consistent with law. Sometimes it is not. The legislation says the speed limit is 55 miles per hour. The law says you get a 5-7 mile per hour cushion on top of that.

A batter who steals signs from a catcher breaks the law of baseball but there are no rules against it. It’s considered by the players to be a form of cheating. No commissioner of baseball ever sent around a memo about it but it’s against the law.

A runner on second who steals signs and relays them to the batter does something that is "part of the game." When there is a runner on second, the catcher and pitcher usually go to an alternate set of signs to prevent their theft. Stealing signs from second is allowed by the law and legislation of baseball. Stealing signs from second isn’t cheating.

But stealing signs from center field with a telescope is certainly against the law of baseball. I don’t know if there’s a formal rule against it. But everyone agrees it’s against the law and a form of cheating.  The most famous home run in baseball history, Bobby Thomson’s "Shot Heard Round the World" (go to the pull down menu in the middle of the page) that clinched the 1951 pennant for the New York Giants, has been tarnished by the revelation that that the Giants that season had a man in center field with a telescope who relayed the signs to the dugout via a bell and buzzer system.

So are steroids cheating? They are now. Everyone knows it. There is random testing across baseball and if you are found to be using steroids you get suspended from the game. Do it again and the suspension lengthens.

But were steroids cheating in the 1990s when McGwire and Sosa and Bonds and Palmeiro and others were hitting so many home runs that went so far? Palmeiro tested positive. Bonds says he accidentally used steroids. Sosa and McGwire have artfully avoided the question and virtually all listeners have inferred from their artful answers that they used steroids. If true, are they cheaters?

Sort of. There were rules against it in baseball, I think, but those rules weren’t really enforced in any serious way. As Stark points out in his column, perhaps hundreds of players were using steroids. He talks about "what the sport allowed to go down on the field"—meaning it was tolerated in a way that suggests it wasn’t against the law of baseball, just the legislation in the sense of the formal rules.

Then again, I don’t think anyone who used steroids was particularly open about it or proud of it. It was borderline cheating. Sort of cheating. It was understood that both pitchers and batters were using the pharmacy. But it wasn’t totally OK.

We make our own judgments. We all understand that some people hit more home runs than they might have otherwise. Most fans have deflated the nominal home run totals of the 1990s, converting them to real numbers. But if some or most pitchers of that era were using "artificial" enhancements (as opposed to nutritional supplements and weight-lifting), then maybe even that deflation is not in order. 

If I were voting, I’d vote for McGwire. I think Hayek would too.