American Jurisprudence and Abortion
Abortion continues to be a contentious issue regarding its legal status. There are two legal approaches which are involved in the issue of abortion. Legal positivism states that laws set by human beings are deliberate and unintentional and there is no intrinsic or significant connection between the legality conditions of law and moral principles, morals and codes. Legal positivism asserts that abortion is permissible if the contemporary law considers it to be legal. Richard Dworkin’s interpretive approach considers that legal obligation is subset of moral obligation. His legal approach believes that principles, values and codes found in many cases are moral proposition in nature. In this approach, abortion is permissible whether legal or illegal because it will follow moral obligation. This paper seeks to compare and contrast legal positivism and interpretive approach on the issue of abortion in the lights of broad and academic resources.
Comparison between Legal Positivism and Interpretive Approach
Hart’s Legal Positivism
Legal positivism considers that positive laws are arbitrary. Hart made a division between legal and moral obligation. It is the theory that states that existence and contentment of law is dependent on universal facts and not on virtues. It states that moral principles and ethics cannot determine the existence of laws and legal systems (Hart, 2000). The legal structure is dependent on t he structure of authority and control. In accordance to Hart’s positivism, legal framework is a body of social rules. Therefore, positive law changes with respect to time. Abortion legality or illegality is also a variable law. Positive laws justify themselves with a cause and basis. According to Hart, legal rules are compulsory and binding because society embraces them as standards.
Legal Positivism and Ethics
As mentioned earlier, legal positivism means that law and ethics are two separate conditions. From this perspective, laws are seen without ethical matter and legal system does not consider ethical components. It also asserts that rules and regulations of slavery or racism are positively evil. Legal positivism is entirely a different concept from ethical positivisms (Hart, 2000). The argument of legal positivism is that ethics and law are two different poles which may occasionally overlap but only when logic remains distinctive. Hart’s legal positivism concentrates on the fact that laws which forbid abortion and the laws that dictate an individual not to abort are two typical examples of the same incidence.
Dworkin’s Interpretive Approach
According to Richard Dworkin, law comes from a positive and practical understanding, explanation and analysis of the long established history of the legal system. Dworkin contends that moral values and principles which society follows are often wrong because certain crimes are agreeable in the eyes of personal principles (Dworkin, 1998). Courts should understand and examine legal data with an outlook which can best explain and justify legal practice. The interpretive approach suggests that in circumstances where individual’s legal rights are contentious, the unsurpassed understanding and analysis includes the right answer thesis. This approach also states that law and morality are related to each other.
Abortion and Legal Positivism
Legal positivism states that there is a difference between legal and moral obligation. If abortion is illegal, then it will remain illegal and if it is legal, it will be legal. The basic concept is that abortion’s legality or illegality is dependent on existing laws. For instance, abortion was considered to be illegal in United States two decades ago. However, it gained legality status with respect to time. Abortion is highly a controversial topic and it is not an easy decision. In accordance to legal positivism, to abort or not to abort is entirely dependent on the law. This approach is not compatible with abortion issue because it is most likely to change with respect to time. As mentioned earlier, positivism deals with laws which do not consider any moral obligation. For example, if abortion is legal in contemporary time, it will be seen as a legal action. If it becomes illegal in forthcoming time, it will be considered as an illegal and will be witnessed as murder.
Abortion and Dworkin’s Interpretive Approach
As mentioned earlier, Richard Dworkin’s interpretive approach suggests that there is a relation between legal and moral obligation. From this perspective, the right to abort the fetus is totally dependent on the choice of the woman. From this perspective, debates on abortion reveal personal views about the inherent sacredness of human existence rather than the rights or interests of the fetuses (Dworkin, 1998). Dworkin asserts that abortion is individual right and first amendment right. From this approach, women have the choice to abort. Prohibition of abortions cannot stop them.
As mentioned earlier, the interpretive approach considers individual right, women have the right to choose to abort. Dworkin asserts that abortion can protect lives and health of million of women which can turn away dangerous medical complications. A woman is more than a fetus which feelings and it is her decision to abort the child or keep it. Dworkin’s moral argument for abortion is that it is better to abort the deformed fetus so that its suffering would end. The interpretive approach seeks to protect women because they have their own individual rights to protect their life which is morally accepted.
Analysis of Legal Positivism and Interpretive Analysis
Hart’s legal positivism is not compatible with the issue of abortion because it changes with respect to time. Problems are most likely to arise if legal positivism is used to deal with the issue of abortion. The core concept is that legal status of abortion will keep on changing with this approach. Abortion is dependent on law. Two decades ago, abortion was illegal in United States and was a punishable act (George, 1999). This legal restriction did not allow women to have their own choice. They did not have the right to their health because abortion was a crime in the eyes of the law (Garfield & Hennessey, 2000). Thousands of women were subjected to risks which eventually forced them to have secret abortions. This made them criminals in front of the eyes. Here, moral obligation was ignored. Legal positivism is not arbitrary when it comes to the issue of abortion.
However, the interpretive approach towards abortion not only protects women, it also protects their health. From this perspective, there is a relationship between legal and moral obligation. The woman has the right to abort the fetus which morally and legally accepted. Abortion is an individual rite of women which is asserted in the first amendment very clearly (Garfield & Hennessey, 2000). Abortion cannot be denied in order to protect the lives and health of women. Based on moral obligation, the life of a woman is more precious than the unborn child.
Pregnancy is an issue which requires privacy. In legal positivism, the government can compel the woman to carry the unwanted pregnancy which is a revolting concept. In interpretive approach, it is totally in the hands of the woman to abort or not abort because moral obligation will be taken into consideration. It is compatible with the ideals of individual privileges and freedom. Legal positivism focuses on bringing unwanted children, the result is that these children are abandoned and have a bleak future. Dworkin argues that it is better to abort these children so that they will not suffer.
Abortion is a contentious issue and its legal status is subjected to several questions. This paper has compared legal positivism and interpretive approach on the topic of abortion. Legal positivism clearly articulates that legal obligation and moral obligation are two different poles. In the lights of this concept, abortion can be legal in contemporary time but maybe termed illegal in the future. Richard Dworkin’s interpretive approach considers both legal and moral obligation. Interpretive approach is the approach towards the issue of abortion because it offers more individual rights and liberty. It considers both legal and moral aspects on abortion.
Hart, H.L.A (1994, first edition 1961). The Concept of Law, 2nd ed. ed.P. Bulloch and J. Raz . Oxford: Clarendon Press.
George, Robert P. (1999). The Autonomy of law: essays on legal positivism. Oxford: Oxford University Press
Dworkin, Ronald. (1998). Law’s Empire. Oxford: Hart Publishing.
Garfield, Jay L. and Patricia Hennessey. (2000).Abortion: Moral and Legal Perspectives. Amherst: University of Massachusetts Press.