The Human Drama of Abortion: A Global Search for Consensus

10. Values as Reflected in the Law

110 10 Values as Reflected in the Law Laws are the instruments used by governments to provide the basis for deciding when an act is permitted or when it should be penalized. However , laws do not always fulfill their intended purpose: the regulation of social and personal behavior. Their effectiveness depends on how well they respond to the values of the community in which they are applied. Legal systems work best when they are based on values that reflect a social consensus; laws that lack substantial social support not only are rarely enforced but also discredit the legal system. This is the case with many laws that attempt to regulate sexuality, reproduction, and (particularly ) abortion. If the restrictive abortion laws that prevail in many developing countries were truly enforced, there would never be sufficient room in the jails to receive all the offenders. The habitual defiance of restrictive abortion laws does not, however, eliminate their impact on the attitude of providers and society at large. As we have already seen in previous chapters, restrictive laws limit access to safe abortion, exponentially increasing the consequences of unsafe procedures. In order to help inform the public about the legal aspects of the abortion debate, therefore, it is necessary to review the differences between abortion laws in different regions. We start by describing the various legal systems as they relate to the application of abortion laws, reviewing the evolution of these laws during the past two centuries. We also provide some global statistical information about the legality of abortion, with a focus on concepts that can help clarify the debate. Finally, we briefly review some of the widely accepted international conventions with respect to the social regulation of abortion. Values as Reflected in the Law 111 Legal Systems Currently, most countries can be broadly categorized within one of three major types of legal systems: civil law, common law, and Islamic law (United Nations, 2001a, 2001b, 2002). 1. The civil law system, which has its origin in Roman law and in the Napoleonic Code (dated 1810), is based on codified laws devoted to specific topics. This system serves as a general guide to the proper conduct of individuals and as a means of preserving justice and morality in society as a whole. Placing an emphasis on social responsibility, the rights of the person are viewed within their social context rather than as separate and inalienable entitlements of individuals. Interpretation by judges plays a relatively minor role in shaping the law. 2. The common law system, which follows the traditional English model, is based on court determinations made by judges. Written laws emphasize crime and punishment for “unlawful” actions; “lawful” actions are, in contrast, unwritten and interpretable by the courts. Law is viewed primarily as a means of resolving disputes among individuals. This system emphasizes principles of self-reliance and individual rights, such as property rights and freedom of contract, more than the order and welfare of society. Law is changed not primarily by government action but through the development of a body of court decisions that reflect evolving judicial interpretation as social conditions change. Although statutes are enacted, the common law system offers judges a much greater judicial leeway than the civil law system, giving the law more flexibility. 3. Islamic law, known as Shariah, differs in that its conception is bound to religion. Law under Islam is based primarily on the text of the Koran, the holy book of Islam, and the sunnah, the collection of acts and statements made by the prophet Mohammed, which are considered a guide for human conduct. Therefore, Islamic law is for the most part considered to have been predetermined; hence set, permanent, and invariable except with respect to issues and situations, such as abortion, that are not specifically encountered in the Koran and sunnah. In these cases, Islamic jurists engage in interpretation, using deductive or analogical reasoning to seek consensus, which varies greatly from one Islamic legal school to another. 112 The Human Drama of Abortion The civil law system is followed in virtually all of Europe, Latin America , non-Anglophone African countries, most former Soviet republics, Japan, and Turkey. The common law system operates in the United Kingdom and in most of the former colonies of the British Empire. Islamic law is followed in most of the Muslim countries in Asia and Africa. Legal Systems and Abortion As described above, the law can be...