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. In evaluating this piece of legislation using Lon Fuller's natural law theory, it can be argued that the law meets some of the key criteria set forth by Fuller. The law appears to be general, publicized, prospective, and relatively stable. It provides clear guidelines for individuals regarding their right to have an abortion within a specified time frame, after consulting with medical professionals. However, one potential issue that could be raised is whether the law is actually in line with morality and promotes the common good. Fuller would likely question whether the law adequately considers the inherent value of human life and the potential consequences of allowing abortions within the first 20 weeks of pregnancy.
2. If we were to apply Hans Kelsen's positivist theory to this legislation, the focus would be on whether the law was created through the proper legislative process and is enforceable. Positivism does not concern itself with the morality or justice of the law, but rather its validity based on the formal rules of the legal system. In this case, as long as the law was enacted through the appropriate channels and is being applied by the courts, it would be considered valid under a positivist perspective.
3. If we were to apply William Idowu's natural law theory to this legislation, the focus would be on whether the law aligns with universal moral principles and the natural order of things. Idowu's natural law theory emphasizes the importance of laws being in harmony with a higher moral law. In this case, the law allowing abortions within the first 20 weeks of pregnancy may conflict with the natural law principles of the sanctity of life and the protection of vulnerable individuals. Idowu might argue that this law goes against the natural order of life and fails to uphold moral values.