Exam (elaborations)
LJU4801 Portfolio Semester 2 2024 | Due 30 October 2024
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Exam of 22 pages for the course LJU4801 at Unisa (LJU4801)
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Question 1Read the following scenario and then answer the question below:
The football governing body is investigating Mark Pachio’s deliberate handball during the
quarter final match between Shibobo FC and Maluti FC. Shibobo FC defender, Pachio,
used his hand to stop Mpho Motale’s header on the line which would have sent Maluti FC
through to the semi-final.
While Pachio was given a straight red card for his actions, his 'Hand of God' intervention
ultimately paid-off as Maluti FC missed the resulting penalty and Shibobo FC went
through to the semi-final after winning the shoot-out.
Shibobo FC does not consider that handball as unfair or dishonest play but rather as an
act for the higher purpose of winning the game. Maluti FC, however, sees the handball as
unfair play which is inconsistent with the fair play code.
QUESTION 1
In this situation, several key legal and philosophical perspectives can be used to evaluate
the ethical and legal ramifications of Mark Pachio's intentional handball in the quarter-final
match between Shibobo FC and Maluti FC. By exploring these perspectives—natural law,
legal positivism, utilitarianism, and virtue ethics—we gain insight into different viewpoints
on whether Pachio’s actions represent fair play or a violation of sportsmanship. Each
approach provides a distinct perspective on concepts such as fairness, intent, and the role
of rules in sports. This analysis ultimately identifies the most fitting approach to assessing
the fairness and ethical aspects of Pachio's actions.
1. Natural Law Approach
,The natural law viewpoint stresses that laws and rules should be in harmony with moral
principles rooted in nature or universal reason, thereby emphasizing fairness and
integrity. For natural law theorists like Thomas Aquinas, law is intrinsically connected to
moral values, and actions that undermine fairness disrupt this natural moral order. In
sports, fair play is a core principle that embodies expectations of honesty, respect, and
commitment to the spirit of the game. From this perspective, Pachio's handball could be
considered morally wrong as it violated the natural sense of fairness expected in
competitive sports.1
From a natural law perspective, Pachio’s handball is seen as compromising the moral and
ethical foundation of the game. Although Shibobo FC might argue that the handball was a
strategic move, natural law would assert that intentionally breaking the rules for personal
gain is morally unacceptable, as it disregards the fundamental principles of equality and
fairness that are essential to sportsmanship.2 In this context, the natural law approach
suggests that following the rules is not just a technical necessity but a moral duty to
uphold the integrity of the game.
2. Legal Positivism Approach
1
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, PG 45 -62
2
Thomas Aquinas, Summa Theologica, (Benziger Bros., 1947).
, Legal positivism, which focuses on adherence to established rules without regard for
moral considerations, would evaluate Pachio’s handball strictly based on the official rules
of football. Legal positivists like H.L.A. Hart assert that law and morality are distinct, and
rules should be followed as defined by governing authorities. In this instance, Pachio’s
handball led to a penalty and a red card, as specified by football regulations. Legal
positivism would view this outcome as a proper application of the rules, without delving
into the moral motivations behind Pachio’s actions.
From this viewpoint, Pachio’s handball was a calculated risk within the framework of the
game. Football authorities have set penalties for infractions like handball, meaning that
the consequences of Pachio’s actions were applied according to the rulebook. Legal
positivism holds that once the penalty is enforced, the issue is legally resolved, regardless
of the ethical implications. Thus, legal positivism upholds the rule of law as definitive and
dismisses any need for further moral examination. For Shibobo FC, this perspective
would validate Pachio’s actions as strategic gameplay within the established rules of
football, albeit with known penalties.
3. Utilitarian Approach
Utilitarianism assesses actions based on achieving the greatest benefit for the largest
number, prioritizing outcomes over strict rule adherence. From this perspective, Pachio’s
handball could be justified if it resulted in a favorable outcome for Shibobo FC, as their
victory allowed them to progress to the semi-finals, bringing joy to the team and its
supporters. Utilitarian thinkers like Jeremy Bentham and John Stuart Mill would evaluate
Pachio’s actions by weighing the happiness or satisfaction gained by Shibobo FC and its
fans.
However, utilitarianism also considers the broader implications for the sport. If intentional
handballs and similar actions were to become commonplace, this could erode public
confidence in fair play and damage football’s reputation as a just competition. This aligns
with Maluti FC’s viewpoint, as they see the handball as an unfair disruption to the game’s
integrity. Thus, while Pachio’s action may have provided short-term benefits for Shibobo
FC, a utilitarian perspective would argue that it ultimately harms the sport by encouraging
behavior that compromises fairness.
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