What makes a winner: An explanation of selected Jurisprudential theories through the lens of sport

Introduction:

Again, let me start this piece with a qualification. This is a highly subjective field within law. Jurisprudence after all, is the philosophy of what is law. So, with that in mind, this piece is my interpretation and nothing more. In the same vein, my sporting allegiances have also been dubbed “questionable” in the past, so I’ll try to remain objective when I discuss selected sporting events also.

During the course of this article, I aim to write about the salient points and theories within both Legal Positivism and Natural Law. I will then compare both of these perspectives and how they would relate to historical events from Soccer, Rugby and Boxing.

For starters, lets look at where I drew the comparison. The goal of law (and the philosophy of law) is to ultimately create a system that is just and fair for all. It seeks to create an equitable society.

Similarly, sport in all its forms inevitably boils down to the fair competition between opponents. Whether it be golf, tennis, or cycling, it is all about a fair game between participants subscribing to a set of rules. This is where the idea of sportsmanship comes from. Therefore, now we see the fundamental connection of fairness between the two, we can now begin the substantive section of this piece.

Soccer:

Natural law rests on the idea that law is intrinsically linked to morality. Goodness must be enshrined in the law. If something is passed as legislation by the state but it is immoral, (like for instance the anti-semitic laws of Nazi Germany) natural lawyers believe this to not be a law at all. This is why most of early Natural law is intrinsically linked to religion. St Thomas Aquinas famously wrote “lex inuista non est lex”- “an unjust law is not a law at all”.

The same idea can be applied for sport. Sport in all its forms relates to the fair competition between opponents. Therefore, if one competitor were to cheat, then natural law would say that their victory would not be a victory at all. This can be explained via the 2005 Genoa match-fixing scandal where Serie B champions Genoa bribed Venezia to throw the last match of the season. This led to Genoa being promoted to the Serie A. However, this was later discovered and the club was promptly punished and relegated two divisions. Fans would regard this as never having been a win at all. In many fans eyes even if the win had stood and years later, they had discovered the cheating, then many fans of sport would say that the entire promotion of the club should have never stood and thus should be discarded from their history. This is a natural law way of examining things. And in particular it is a classical natural law way of examining the situation.

If we compare this to the classical Positivist perspective, we see a stark difference of opinion. Core to the Positivist perspective is the separation thesis. This is explained by J Raz as being that law is separate from morality. Hume sums this up with the quote “you cannot derive an ought from an is”. As long as something formally becomes a law via legislation or case law etc. then it is regarded as a law.

These people believe that Genoa’s achievements during that period are standing, purely because they actually took place and they only ceased to truly be winners once the result was overturned. If they had been promoted, then all the accomplishments springing from this are held as being binding. In their view if the cheating was discovered, but it was never formally overturned, then it should not be expunged from their list of achievements.

Rugby:

Contemporary Natural Law has evolved quite a bit from classical natural law theories. Lon Fuller is the primary authority on contemporary natural law. Fuller writes that central to his theory is legal ordering, which states that law is concerned with both the explicit rules we must abide by as well as the implicit norms which give the rules effect. Fuller is more secular than previous natural lawyers and he claims that all law must be qualified by the assumption that there is a reciprocity to treat everyone with dignity and respect. Rugby shows how the implicit norms of modern Rugby can be a corrupting element to fair play.

Racing 92 was founded in 2001 and from its inception stood out for its incredible financial means. The purchase of players Dan Carter and Simon Zebo as well as world class coaches was the product of money rather than a commitment to the club itself. In light of this, many fans question the sporting nature of their 2016 French Championship triumph. Natural lawyers would argue that money was the sole reason for their triumph. Hence, that must be considered when comparing them overall as a club in respect to their less financially endowed counterparts like Biarritz Olympique.

Contrastingly contemporary legal positivists would regard the win as being a wholly justified. One of the primary voices on modern legal positivism is HLA Hart. Hart wrote that people must obey social rules (which are strict, for example turning ones phone off in a cinema, rather than a social habit like agreeing not to leave several times during the film). He proposed primary and secondary rules which must be followed. Primary rules are those which explicitly abstain or require one to carry out an action. Secondary rules are those which give effect to primary rules. In the case of Rugby a primary rule would be not to use Performance Enhancing Drugs and secondary rules would be the IRFU banning the use of anabolic steroids in club rugby by formal decree.

Racing 92 stayed within the rules set out and they merely marshaled their resources to win by whatever means possible. As long as the rules of the league were not broken, then you cannot reasonably regard this as not being a triumphant success for a new club. Thus, when comparing Racing 92 to any other rugby team their accolades must be taken at face value. This makes comparison far easier yet it may have knock on effects for whether the comparisons are truly accurate.

Boxing:

This incident necessitates my final note because it is an extremely opaque event, where the natural law and positivist elements seemed to be equally robust.

This is the 2008 clash between Welterweight superstars Antonio Margarito and Miguel Cotto for the WBA title. In this infamous fight Margarito battered Cotto on route to a shocking upset TKO victory. However, in his next fight Margarito was caught trying to put sulphur and calcium blocks, the ingredients that form Plaster of Paris, into the knuckle pads of his hand wraps. They were seized. Using the new wraps Margarito was comprehensively defeated against a then declining Shane Mosley. He was also promptly suspended by the California State Athletic Commission. After the suspension, an investigation was conducted into the Cotto bout and a photo revealed what looks like glaring evidence of illegal hand-wraps after their clash. In this case the result was never overturned but it is widely accepted as fact that this was a blatant case of cheating.

Natural lawyers look at this event as never being regarded as an achievement from Margarito. Natural lawyers view this as being wholly unfair and in their opinion those events should be expunged from his record.

However, Positivists follow the letter of the law. They rely on Empiricism (objective view of the events) and believe that as long as the boxing commission hasn’t overruled the result it still stands and when evaluating Margarito’s career, it must be considered among his greatest achievements.

Where one stands on this issue would be a strong indicator as to whether they would form a Positivist or Natural Law perspective in Jurisprudence. I’ll reserve my opinion and encourage you as the reader to come to your own conclusion. How do you think this event should be appraised in boxing history?

Conclusion:

When I reflect on this article, I realise that another reason I was compelled to compare Jurisprudence to sport stems from the fact that they are both highly subjective areas. No matter what the factual content people’s opinions, both issues are highly personal to them and they are usually unwavering. Another point of similarity from this article is the fact that to think someone completely subscribes to a certain ideology in Jurisprudence is pure naivety. The same comes in the sporting realm.

I speak as a fan of Ireland (generally), Munster RFC in Rugby, Arsenal football club in Soccer, Cork in GAA, Anthony Joshua in Boxing, Tiger Woods in Golf and the New York Yankees in Baseball, there is no complete overlapping reason as to my sporting allegiances. They all formed on an ad hoc basis. It is equally true with my Jurisprudential opinions. I am primarily of the natural law school of thought, yet I cannot help but veer towards the Positivist perspective on certain issues. I know as I study other areas of Jurisprudence this divergence will become even wider. So, I resign this by saying that the key to understanding Jurisprudential theories is by taking it one step at a time, much like learning to follow a new sport.