Abortion: Natural vs. Postivist Law

For this week’s Food for Thought, I have decided to address the alternative option/topic that asks of us to discuss our forthcoming term paper. Although I originally had intended to proceed with this week’s original discussion of Derrida’s Deconstruction is Justice, I felt the opportunity to pre-emptively present my paper in a condensed form was too great of an opportunity for feedback than I could pass up. For the remainder of the blog, I will be focusing on three areas of interest, rights surrounding abortion (or the abortion debate as many know it), the concepts surrounding Natural Law (Natural Law Theory), and the Positivist approach to legal thinking (Positivism). Moreover, it should be noted that when looking at such a volatile subject such as the abortion debate, I felt it was only appropriate to ground the theoretical landscape in an equally strong debate that is known as the Hart Fuller Debate. Before I begin dissecting the two analytical approaches previously mentioned, I will begin by framing topic at hand with a break-down of the abortion debate as we know it.

Abortion

For the last half century there has arguably been no other subject, no other debate as polarizing as the abortion debate. Undeniably connected to the modern Women’s rights movement, a flurry of opinion has swirled around the conceptions of individual rights, whether they are for women or an individual woman, an unborn child, or even the potential father of unborn children. Because of this, debates surrounding abortion, abortion rights, and rights of unborn children continue to be heard, with many different perspectives being put forward in an effort to strengthen one side’s perspective over the other. Although the temptation to advance my personal feelings and perspective on this topic is strong, I will, for the sake of this blog post, refrain from advancing such ideas; rather I will focus an effort to flesh out how the two previously mentioned legal theories would approach the subject. Many have tried to advance theories relating to different aspects of abortion, including how general attitudes will sway dependent on several variables. However, even though there appears to be some predictability of attitude related to sex, religion and education, the results are not indicative enough to proclaim undeniable certainty (Bryan 1992). Regardless of attitudes, one could sum up the abortion debate by forwarding the ultimate question of whether or not an unborn fetus is or should be considered a person. This point is forwarded by Earnhart et al. (1999) when they state” Sooner or later in the debate about abortion, the question of “the person” must arise” (p.128) Continuing, Earnhart et al. (1999) explain in regards to the question of the person “this is the question on which all other questions of abortion depend” (p. 128). Because of the previously statement, we must frame our discussion of Natural Law and Positivist legal theories around this topic while, at the same time examining, comparing, and contrasting the rights of other parties involved (Women and Men).

Natural Law

When examining Natural Law, or more pointedly, the work of Lon Fuller, we are told a fictitious story of King named Rex (as I have discussed this story at length in a previous blog I will forgo an in-depth discussion at this point). However, what should be noted, is one criteria (of eight) that distinguishes a “internal morality” needed to claim a law valid, this criteria makes the distinction that law itself must not be contradictory in nature (Pavlich, 2011). Within this specific criteria we can begin to see the abortion debate frame around the theoretical perspectives of Natural Law; this must be looked at with the Canadian Charter of Rights and Freedoms in mind, specifically section 7 where it states “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Arguably, this section of the charter can be taken to support both pro-choice and/or pro-life provisions. Potential forthcoming discussions of this argument are quite plain to see if one was to place the The Charter, Natural Law, and Abortion Rights next to one another. However, the debate begs the question of how can the laws of Canada protect both the life of a woman (the mother) and the life of an unborn fetus; the contradiction is both obvious and disconcerting. One could not be faulted to suggest the Canadian Government needs to make a firm decision and proclamation on this subject rather than double speak and allow the debate to swirl around the legislature, sporadically entering for debate time and time again.

Positivism

When considering laws just or rather valid, we have seen for Naturalist, the law and morality must compliment one other, meshing as one in order to proclaim validity. However, for the positivist, morality within a code is not of a concern, rather it is the basis of fact, whether it is law or not, that is what drives Hart`s focus. This point is reinforced by Pavlich (2011) when he states “legal positivism seeks objective and morally neutral ways to study law as an observable fact in the world” (p. 43). This description of Positivism can be seen as the basis for its position regarding abortion, a position that eliminates the boundaries of morality (intangibility) while only considering tangible assertions. This in itself should be seen as problematic by those in the pro-life camp as one could suggest a legal theory not grounded in a quest guided by morality cannot appreciate or defend an action (abortion) that is so vigorously opposed due its immoral nature. Although legal positivism may not be grounded in morality as a basis for claiming justifiable, valid law, it attempts to ground its framework in empirical evidence (tangible concepts) that suggest, reinforce, and validate positivist claims regarding law. Although much more can be said regarding positivism at this time, one can see how positivistic approaches to law would broach the subject of abortion and abortion rights.

*For a brief clarification and summary of the two before mentioned legal theories, please refer to the videos linked below*

Ultimately, when examining both Natural Law and Positivism in relation to Abortion Rights, one can see the landscape laid out for an enthralling and lively discussion of legal thinking. Speaking directly about the abortion debate, it must be restated that although we all may have our own personal feelings regarding this subject matter, this blog post was intended to simply lay out the forthcoming debate/discussion rather than proclaim a preferred view, or even winner. As we live in increasingly complicated times, it is only through responsible, respectful discussion and debate, that we will be able to iron out our differences and beliefs in order to reach the ultimate goal of a better future for all.

I wish to thank the moderator of this blog for the effort and time invested in the maintenance, advice and critique of all involved. Additionally, I wish to thank and congratulate all other contributors of this blog, the work has been tremendous and the discussions enthusiastic, it has truly been a pleasure, thank you.

The Abortion Debate Rages on:

Positivist Law:

Natural Law:

References

Bryan, J. W., Freed, F. W. (1992). Abortion Research: Attitudes, Sexual Behaviour, and Problems, in a Community College Population. Journal of Youth and Adolescence, Vol. 22(1). 1-22.

Earnhart, B., Gordon, D., Irving, D. I., Paul, R. Vieria, E., & Walker, J. (1999). Abortion And The Question Of The Person. International Journal of Sociology and Social Policy, Vol. 19(3/4), 48-52.

Pavlich, G. (2010). Law and Society Redefined. Ontario: Oxford University Press.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

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1 Comment

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One response to “Abortion: Natural vs. Postivist Law

  1. I think that using the Hart-Fuller debate as a template for analyzing tensions between positivist and natural legal perspectives is an excellent idea. It allows you to ground your analysis in a conversation that has been ongoing for decades.
    Just as an aside, I think that you will find that there are some fascinating discussions regarding abortion taking place in the ‘biopolitics’ literature (both as regards governmentality and as regards ‘bare life’). Rose’s ‘The Politics of Life Itself’ is an interesting look at contemporary biopolitics.
    Regarding your application of Fuller’s perspective, you draw attention to the implications of abortion according to s. 7 of the Charter. This is a good point. I would note, however, that the situation is only contradictory insofar as you regard a fetus (especially at early stages of development) as possessing legal personhood (ie qualifying as part of the category ‘everyone’). You are developing a good line of argumentation, but it is important to acknowledge this issue.
    Good discussion of Positivist theory.
    It looks like things are developing well! I look forward to reading your paper