Tutorials-LJU4801-Memos. Verified Q And A.

Tutorials-LJU4801-Memos.
Verified Q And A.

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EXEMPLAR ANSWERS TO ASSIGNMENTS
LJU4801/201/1/2011
FIRST SEMESTER: ASSIGNMENT 01
CLOSING DATE: 14 MARCH 2011
___________________________________________________________________
Read the following article and answer the question below.
Fifa probes Suarez handball
Fifa confirms investigation into 'Hand of God'
Last updated: 3rd July 2010
Suarez: Maybe banned for longer

Fifa has confirmed it is investigating Luis Suarez's deliberate handball and could extend
his one-match ban.
The Uruguay striker stopped Ghana substitute Dominic Adiyiah's last-gasp header on
the line which would have sent the Africans through to the last four.
While Suarez was given a straight red card for his actions, his 'Hand of God' intervention
ultimately paid-off as Ghana missed the resulting penalty and Uruguay went through to
the semi-final after winning a shoot-out.
Suarez is now being hailed as a hero in his home country, who view his actions as being
on behalf of the team, but the incident has provoked condemnation in other parts of the
world, with the handball seen as cheating.
The striker will now serve an automatic one-match ban, ruling him out of the semi-final
with Holland, but this punishment may be increased as Fifa has confirmed it is looking
into the case.
The ruling body may decide he should also be suspended for Uruguay's last match of
the tournament - which will be either the final or the third-place play-off.
Opens case
Fifa spokesman Pekka Odriozola said: "For automatic red cards there is an automatic
one-match suspension.
"The disciplinary committee also opens a case and they will be looking at that incident
and taking a decision."
Fifa's disciplinary code gives the committee the option of a longer ban for
unsportsmanlike conduct".
It may find his action was contrary to the fair play code which states: "Winning is without
value if victory has been achieved unfairly or dishonestly. Cheating is easy, but brings no
pleasure."
‘Fifa Probes Suarez Handball’ http://www.skysports.com/football/world-cup-
2010/story/0,27032,17368_6243302,00.html (Date of use: 10 August 2010).

Uruguay’s handball denied Ghana a place in the World Cup semi finals.
Uruguay do not view that handball as unfair or dishonest play but rather as an
act for the higher purpose of winning the game.
Ghana, however, see the handball as unfair play which is contrary to the fair play
code.

Discuss the different philosophical approaches being used here. In your
substantiated opinion, which view is the correct one?
Students must treat this assignment as a professional legal opinion. Correct
referencing is essential. (10)

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ASSIGNMENT 1: ANSWER 1
The handball incident in the match of Uruguay versus Ghana represents the dilemma of
the law as it is and the law as it ought to be.

On the one hand we have Uruguay applying the law 'as it is' or rather the law as set out
by the ruling body FIFA. After the handball incident Suarez was given a red card which
resulted in him leaving the field of play and a one match ban.
This would appear to be a strict application of the rules an example of legal positivism.

The handball rule exists to adjudicate handball incidents - 'once you have identified the rules,
you could make accurate predictions regarding future events'.'

In line with the epistemological thesis it is not relevant whether the handball was the 'hand
of God' or whether it was immoral or unfair play because morality or natural law
should not and cannot be the basis of law.2 And therefore issues of morality or fair play
should not be the basis of the rules of football as set out by FIFA, nor should they be the
basis for adjudicating incidents such as the handball.
Therefore the handball incident can only be interpreted in terms of the law which resulted in
the red card and the one match suspension.
The social thesis of legal positivism also recognises that law is a social system. Thus
as the nations which participate in the Soccer world cup have accepted and agreed to play
according to the rules set out by FIFA those are the rules to which they should be bound.3
As Ghana and Uruguay had agreed to play according to the FIFA rules which contain the
handball rule, the treatment of the handball incident in this match was the correct approach.

It also follows from the command thesis that FIFA is the sovereign power of the soccer
world cup. And as the sovereign it is FIFA who stipulates what the rules of soccer are and
therefore that these are the rules which must be obeyed by the citizens (the participating
nations)'
In light of the above Uruguay should use a positivist approach to the rules to support
their argument that a strict application of the handball rule as it is was the correct approach
to have taken in the circumstances.

On the other hand Ghana would prefer an interpretation of the law 'as it ought to be'.
Whilst Ghana could agree that there is an existing handball rule they could argue that the law
is indeterminate. Whilst the teams, players and referees are bound by the rules they are also
bound by the fair play code.
A strict application of the handball rule in this 'circumstance amounted to unfair play

The handball incident allowed Uruguay to win the match by cheating, which is contrary to the
fair play code. Uruguay won because Suarez cheated. Essentially, the positivist
application of the rule resulted in Uruguay 'winning ... without value'.
It would have been fairer play to allow the judge (the referee) to recognise his freedom of
choice in the situation and allow the goal. Had Suarez not cheated the goal would have been
awarded and Ghana would have won the match in the last few minutes of the game. This
would have resulted in a fairer outcome for the match, an outcome which is not contrary to
the fair play code.
This argument follows the approach of the progressive realists. Rather than rules being
applied conservatively and formally the judges need to realise that rules are indeterminate
and that they therefore have a choice in the adjudication process. This means that judges
have to consider other factors when making judgments. Rather than merely applying the

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rules as they exist, judges need to make policy choices which will enable them to bring about
socio-economic reform.5 Judges need to bring about the law as it ought to be.

Thus, as the judge in the handball incident, the referee should have considered that a strict
application of the handball rule would amount to unfair play, and considering factors such as
the time left in the game and the fair play code he could have allowed the goal which would
have amounted to a more just outcome.

In my opinion what is at stake in this case is not merely the outcome of the game (and the
result for the two nations) but the 'spirit of the game' of football. When considering the 'spirit
of the game' fair play becomes very important and therefore the fairer outcome, the more just
outcome, would have been for the referee to allow the goal and for Ghana to have won. This
would have been a far more 'scientific' result than the strict application of the law.

5 Kroeze Study guide 76 - 77.
LJU4801/201/1/2011
1 Kroeze IJ Study guide for Legal Philosophy LJU406K (Unisa Pretoria 2007) 60.
2 Kroeze Study guide 61.
3 Kroeze Study guide 62.
4 Kroeze Study guide 63.

ASSIGNMENT 1: ANSWER 2
The scenario under discussion is an excellent example of the problems associated with
natural law thinking. The reasons for this statement will become clear in the course of the
discussion.
Natural law is an aspect of pre-modern thinking and is based on the idea that there exists
a set of rules or laws that are not made by humans.
Natural law can be defined as follows:
Natural law is the idea that there is a real, pre-political set of rules that provide the yardstick
against which human laws can be measured.'
The idea is that this set of laws (called natural law) comes from god/gods/nature and
provides a way of measuring human laws. These laws are not found in books or legislation
or court cases, but they are unchanging, universal and unquestionable. But that also means
that it is difficult to determine their content.

Both parties in this dispute rely on the idea of "fair play". The Uruguayans argue that it is
"fair" to bend the rules for a "higher purpose". Presumably that higher purpose is sanctioned
by some higher power. The Ghanaians, on the other hand, argue this is against the fair play
code, which is obviously very vague. So, both sides base their arguments on fairness, but
that concept is nowhere defined or explained.

This is typical of natural law arguments that rely on metaphysical assumptions? Like Plato's
Ideals of Justice, the precise meaning of "fair play" is never exposed. And fairness can, as
in this case, mean very different things to different people depending on a variety of factors.
Thus, both sides can claim that they argue from a superior, moral position. But, in fact,
neither can be rationally evaluated; and are therefore irrelevant to science.

For the perspective of Realism and CLS this is an excellent illustration of
indeterminacy in law and in society.

1 Kroeze IJ Study guide Legal Philosophy LJU406K (Unisa Pretoria 2007) 18. Italics in original.
2 See Kroeze Study guide 17 - 18 for a discussion and explanation of metaphysics.
3 For a discussion on indeterminacy in Realism and CLS, see KroezeStudy guide 73 -74 and 125-126.

LJU4801/201/1/2011