This journal entry is based on unit 2 and, specifically, chapters 2 and 3 in Bilchitz et al.
In the country of Utopia, part of a relatively new, promulgated, law (already applied by the courts in several cases) reads:
Ԥ2Every pregnant woman may decide to have an abortion, during the first 20 weeks of pregnancy, after consulting with a medical doctor and obtaining counselling on the matter from a qualified psychiatrist.
§3 This law does not apply retroactively to cases which existed before its promulgation.’
Accept that this law defines ‘medical doctor’, ‘counselling’ and ‘qualified psychiatrist’.
1. Evaluate briefly, in a paragraph of 250-300 words, whether this piece of legislation is valid or not by applying the natural law theory of Lon Fuller thereto. [4 marks]
2. Critically discuss, in an additional paragraph of 100-150 words whether your answer would differ if you applied the positivist theory of Hans Kelsen to the legislation.[3 marks]
3. Critically discuss, in an additional paragraph of 100-150 words whether your answer would differ if you applied the natural law theory of William Idowu to the legislation. [3 marks]
1. From a natural law perspective, Lon Fuller's theory focuses on the idea of achieving moral goals through law. In this case, the law in Utopia allowing pregnant women to have an abortion within the first 20 weeks of pregnancy after consulting with a medical doctor and a qualified psychiatrist seems to uphold the principles of autonomy and personal decision-making. By requiring counseling and medical consultation, the law ensures that the decision is made with informed consent and consideration of potential consequences. Furthermore, the law does not retroactively apply, respecting the rule of law and fairness. Overall, this legislation appears to align with Fuller's principles of legality and morality.
2. If we were to apply Hans Kelsen's positivist theory to this legislation, the focus would shift towards whether the law was created following the correct legal procedures and whether it is being enforced by the appropriate authorities. As long as the law was properly enacted and is being applied by the courts, it would be considered valid under positivism regardless of its moral implications. Therefore, from a positivist perspective, the law in Utopia allowing abortions within the first 20 weeks of pregnancy would be considered valid as long as it was enacted correctly.
3. Applying William Idowu's natural law theory to the legislation in Utopia may lead to a different evaluation. Idowu's natural law theory emphasizes the idea that laws should align with fundamental moral principles derived from natural law. In this case, the law allowing abortion within the first 20 weeks of pregnancy may be seen as conflicting with the natural law principle of the sanctity of life. From this perspective, the legislation may be considered invalid as it goes against fundamental moral principles. Idowu's natural law theory would likely challenge the validity of the law in Utopia based on its moral implications.