1.1. The debate issue:
The debate ‘abortion on demand’ was chosen by a group vote and would cover a wide range of information. The topic in general is not an easy one as there are many views about when a foetus becomes human being.
1.2. Work in Process:
Week 2 we separated into two groups, I was a member of team ‘B’, and asked to select a philosopher and theory. Our designated time for meetings, in order to prepare, was one hour prior to each lecture. On the first meeting, we both elected a chairperson who would maintain register and decided on who would look at which particular theory. After discussing the topic I was asked to prepare for debate, Lord Devlin’s philosophy and the whole group’s debate conclusion. The areas we covered were very extensive such as natural law, J.S. Mill, Lord Devlin, H.L.A Hart and Dworkin philosophy on the issue‘abortion on demand’. However, the week prior to our presentation it was the turn of group ‘A’ to debate their chosen subject. They had chosen the topic ‘euthanasia’
1.3. The difficulties faced:
- The elected chairperson left the group in week two and two other members in week three, without informing.
- From week seven a further member of the group stopped attending, who was responsible for preparing the Bentham theory.
- At week eight, a new person joined the group to cover natural law in debate.
We finally continued with just five members, failing to cover Bentham and William theories in our debate. Although there were temporary difficulties due to limited group members, we were determined to continue our preparation for debate at any cost and so I believe we succeeded in our battle.
2.The application of Philosopher’s view:
2.1 Devlin’s Philosophy:
Lord Devlin claims that the ‘function of the criminal law is to enforce a moral principle and nothing else’1. However, he justified the enforcement of morals by asking himself three questions. It can be seen by summarising his answers what he would have said regarding the issue ‘abortion on demand’2. Firstly, yes and society has the right to pass judgement on morals, it expresses essential aspects of the bonds, which serve to unify society3. So, it can be said that there will be disintegration if abortion is legalised which does not follow common morality. Secondly, yes and it has the right to raise the law to enforce morality. However, it is not possible to set theoretical limits to the power of the state to legislate against immorality4. Likewise neither is abortion private immorality nor can there be theoretical limits to legislate against abortion or killing an innocent child5. Thirdly, society should use the law in some cases. However, Devlin would expect that the legislature should dictate to society what the reasonable man (the man of reason and rationality) would consider to be right6. I believe that he would consider abortion as an irrational belief but the problem is over a period of time moral belief changes, such as slavery and religious tolerance and so who would we consider a reasonable man?7
However, by summarizing Devlin’s moral stance it can be said that abortion is morally wrong but he made clear neither at what point does it become sinful to prevent birth and why, nor the status of the unborn as to when it becomes fully human. He said that British society shared morality is derived from Christianity but neither the Hebrew Scriptures nor the Christian Scriptures address the issue of abortion directly8.
2.2 Hart’s Philosophy:
Hart develops Mill’s harm-to-others principle so as to include physical harm to oneself as also constituting a reason for the law to intervene. This can be characterised as a paternalistic approach9. He recognised that in every society there are some shared morals. Although, the law enforces them, law cannot justify all morals. The morality does not form a single seamless web because those who deviate from any part are likely to deviate from the whole10. He criticised Lord Devlin for not presenting any evidence to justify the enforcement of morals by law11.
The main question- Is it morally justifiable to oppose women’s fundamental rights to abortion?
Hart would likely to say, no, unless the foetus is recognised as an individual or the aspect of paternalism in accordance with the harm principle extends to include foetuses12. He does not define specifically whether or not the term ‘others’ includes the foetus. There are some circumstances when forcing a woman to undergo an unwanted pregnancy, could harm herself, such as pregnant after being raped, teenage pregnancy or others13. Furthermore, Hart would not in favour of punishing women having abortions, as it would clearly harm them by depriving them of their freedom through imprisonment or financial penalties14.
On the other hand, if Hart considers that the foetus is an individual then according to his theory by depriving that foetus’s right to live and the right to self-improvement would clearly be considered harmful to this individual15.
2.3 Dworkin Philosophy:
Ronald Dworkin occupies a theoretical position, which rejects the conceptual separation of law and morality, and asserts instead that moral evaluation is integral to the description and understanding of law16. He emphasised on fundamental rights, which cannot be undermined by the state when the state’s necessity must prevail. These rights are normally specified in terms of abstract rights such as life, liberty, property and privacy17.
Dworkin considers the issue of abortion as a sensitive matter and in accordance in line of his theory that no law should ever override the right of preserving one’s dignity18. Therefore, the state law should be prevented from enforcing a law, which deprives a pregnant woman from having an abortion, especially when there are issues of rape and teenage pregnancy, as this is a matter of morality. In the case of Roe v. Wade19, the right to have an abortion in the USA was confirmed.
On the other hand, the state might justify the prevention of having an abortion by raising the issue of sanctity and preservation of life in conjunction with the right to life under Article–2 ECHR 1950. However, Article-2 could restrict the availability of an abortion but it gives no clear guidance regarding the foetus status20.
2.4 Mill philosophy:
Mill, in his essay On Liberty, puts forward the notion of self and other regarding acts21. His system of acts as to regulation is this: self-regulating acts, being completely and solely based and resultant on oneself, is independent of government, and no one has any place regulating a purely self-regarding act. Other-regarding acts, though, by their very nature affect other people, and it is when these other people are brought into a single person’s concerns by that person, that the government must step in and regulate22. The issue of abortion exemplifies both acts, at different points in its performance. The obvious measure of when an abortion affects the life of another, namely the unborn child, and becomes other- regarding acts would be once the foetus becomes alive.
However, Mill’s theory can be extended to define not only exactly when government involvement and regulation should occur, on a subject like abortion. More so in this issue than in most others, it seems that Mill would compromise considering that it is impossible to form a consensus on when life truly begins. The government should not and cannot regulate this issue23. Since the choice of whether to get an abortion ultimately comes down to one’s own religious beliefs, which will dictate whether the act is self or other regarding, then the government has no role in and no right to enforce religious beliefs24. The government cannot have a role in regulating abortion, except when its interests, namely its citizens, are at stake. Hence, the best possible conclusion can be drawn by following Mill’s doctrine in its choice to disallow states from having any say in a women’s rights to receive an abortion, except after it comes to the point where state interests in the lives of future citizens clearly exist25.
2.5 Bentham Philosophy:
Bentham believed that nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects26.
The issue of abortion in relation to Bentham’s greatest happiness or greatest felicity principle. Is the happiness in question here just the women who are having abortion or the public in general? It appears that Bentham actually is referring to an overall happiness not just of a particular group27. Therefore, abortion would be legalised if the greatest number of people in favour of abortion.
Bentham says that the law should be based on his principle of utility and that it should be the case that the law is evaluated to see if it is about pleasure and pain28.However, in one hand an abortion would causes physical harm to the foetus and on the other a pregnant woman avoiding pain and maximising pleasure having an abortion, especially in case of rape, teenage pregnancy and unwanted child29.
2.6 Natural law theory:
Natural law theory seeks to explain law as a phenomenon which is based upon and which ought to approximate to some higher law contained in certain principles of morality32. However, natural law should be discussed in relation to positive law, which is enacted by the Parliament33. In terms of the theory of natural law, positive law will be valid only if they are the reflection of the natural law. Considering the issue of abortion, the natural law prevents any attempt to kill the life of a foetus, irrespective of reasons such as medical, social, criminal and economic34. So, positive law has no right to intervene in the natural development of the foetus because both the rational order in nature and God’s power to allow life or die35. On the other hand, modern theory of natural law should flourish mother’s rights especially when the issue of rape, teenage pregnancy and the mother’s life concerns.
At the end of the discussion it seems that the issue ‘abortion on demand’ is very much a moral dilemma. However, I believe I have covered all the relevant areas of the philosopher’s theories and have appropriately applied all the philosophies on the issue ‘abortion on demand’. After applying all the philosophers’ view it seems that they were either supported or rejected legalised abortion. Finally, I think today’s message should be women must decide their fate, not the church, not the state, not the medical association. So abortion should be an unconditional demand on the state, the fundamental right of a woman to control her own fertility.
4.The debate assessment of group ‘A’:
They have shown that voluntary euthanasia is a very difficult moral problem for society as everyone has different views and opinions as to what is right and wrong, including the legal philosophers. They have discussed how Bentham, Mill, Devlin, Hart, Dworkin and William would have dealt with this issue. It is very difficult to decide what their views would have been because, with the exception of Dworkin, none have actually discussed the matter directly. However, it was clear from group ‘A’ debate that the philosophers were both in favour and against legalising voluntary euthanasia. It seems in general they were against legalising voluntary euthanasia as it assists suicide.
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1 See, Lee, S, Law and Morals, 1986, 1st,p-27
2 Devlin’s questions are available in Harris, J.W, Legal Philosophies, 1997, 2nd edn,p-138
3 See, Riddall, J.G, Jurisprudence,1999,2nd ed,p-203
4 See, Devlin, P, The Enfocement of Morals, 1985, 1st, p-9
5 See, Rostow, Eugene, The Enfocement of Morals, Cambridge Law Journal, Nov 1960, p-174
6 See, Mahajan, V. D, Jurisprudence Legal Theory, 1987, 5th edn, p-103; Devlin also refers to certain principles to consider when legalising moral issues two of which are: there ought to be a maximum toleration level for individuals consistent with society’s integrity and the law is concerned with a minimum standard of behaviour.
7See, Wollheim, Richard. “Crime, Sin and Mr. Justice Devlin”, Encounter, Nov 1969, p-34.
8 See, Victoria, G and Jock, Y, Abortion in Demand, 1976, 1st,p-117
9 See, H. L. A. Hart., The Concept of Law, 2nd, 1961,p-23.
10 See, Harris, J.W, Legal Philosophies, 1997, 2nd edn,p-120
11 See, H. L. A. Hart., Essay in Jurisprudence and Philosophy,, 1983,p-45.
12 See, Per Sir George Baker in Paton v. Trustees of BPAS stated that the foetus can not, in English law, have any right of its own at least until it is born and has a separate existence from the mother.
13 H. L. A. Hart., The Concept of Law, 2nd, p-29.
14 See, Harris, J.W, Legal Philosophies, p-128
15 See, H. L. A. Hart., Essay in Jurisprudence and Philosophy,, p-75; Furthermore, an abortion would be seen as physical harm to the foetus, which can taste, hear and smell. So, abortion can be considered a homicide, which is an immoral act where the law imposes criminal sanctions to those who commit this crime.
16 See, Dworkin, Ronald, Law’s Empire, 1986,p-245
17 See, Harris, J.W, Legal Philosophies, p-189
18 See, Dworkin, Ronald, Law’s Empire, 1986,p-251
19 See, 410 US 113 (1973)
20 See, Janis, M, Kay, R and Bradley, A, European Human Rights Law: Text and Materials, 2nd edition, 2000,p-305
21 See, Mill J. S, On Liberty in Utilitarianism,1960,p-74-76
22 See, Mahajan, V. D, Jurisprudence Legal Theory, 1987,p-302
23 See, Mccoubrey & White, Textbook on Jurisprudence, 1999,p.
24 See, Hordern, Legal Abortion, 1971, 1st,The English Experience,p-156.
25 See, See, Mill J. S, On Liberty in Utilitarianism,1960,p-71
26 See, Harris, J.W, Legal Philosophies, p-43
27 See, Mahajan, V. D, Jurisprudence Legal Theory, 1987,p-103
28 See, Mcleod, lan, Legal Theory,1999, p-56
29 See, K. Hindell and M. Simms, 1971, Abortion Law Reformed,p-67
30 Act utilitarianism: the rightness or wrongness of an act is determined by the consequences of that act alone. Individuals normally practice act utilitarianism. Each person is the best judge of his or her own interest.
31 Rule Utilitarianism: the rightness or wrongness of an /emact is determined by whether it conforms to a rule, which is based on the principle of utility.
32 See, Fuller, L “Positivism and Fidelity to Law-A Reply to Professor Hart” (1958) 71 Harvard Law Review 630 ; There are various theories developed through natural law, especially St. Thomas d’Aquin with his scholastic theory and Locke with his doctrine of social contract, which are important.
33 See, ‘Are there any Natural Rights’? (1955) 64 phil. Rev. 175
34 See, Paine, T. The Rights of Man ( Hammondsworth: Penguin, 1984, 1791-1)
35 See, Weinreb, L. ‘ The Natural Law Tradition’(1986) 36 Journal of Legal Education.