Question

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’.

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

Answer 1

[AI-generated answer — Bot GPT 3.5]

Applying the positivist theory of Hans Kelsen to the legislation in Utopia would change the perspective on the law. According to Kelsen, the validity of a law is not based on ethical or moral considerations, but rather on whether it was created through the correct legal procedures. In this case, the law allowing for abortion within the first 20 weeks of pregnancy after consulting with a medical doctor and qualified psychiatrist would be considered valid if it was enacted in accordance with Utopia's legal system. This means that the emphasis would be on the formal legality of the law rather than its ethical implications. Ultimately, the application of Kelsen's positivist theory may lead to a different evaluation of the legislation based on the procedural aspects rather than the content of the law itself.