In the country of Utopia, part of a relatively new, promulgated, law (already applied by the courts in several cases) reads:

Question

In the country of Utopia, part of a relatively new, promulgated, law (already applied by the courts in several cases) reads:

‘§2Every 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’.

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]

Answer 1

If we were to apply the positivist theory of Hans Kelsen to this legislation in Utopia, we would focus on the formal validity of the law rather than its content. In this case, the law appears to be formally valid as it has been properly promulgated and is being applied by the courts. From a positivist perspective, the morality or justice of the law is not relevant as long as it has been created through the correct legal procedures. Therefore, my answer would not differ significantly if applying the positivist theory of Hans Kelsen, as the focus would be on the legal validity of the law rather than its ethical implications.