Would legislation liberalizing abortion threaten the separation of powers, and therefore, the democratic nature of our societies?
The vote for laws liberalizing abortion set in motion a process that renders the separation of powers very precarious -an essential criterion of a democratic society. In Western law, this separation receives a special clarification arising from the distinction between human rights and positive law.
The legislator must bring himself to elaborate just laws, that is to say, respectful of the inalienable rights of men. He expresses juridical norms, formulates rights and duties, stipulates penalties for violation of the law. The legislator's activity, therefore, transpires on a general level that confers on law a transpersonal character. His role is not to apply the law.
Applying the law is the judge's role. It belongs to judicial power to evaluate the subjective responsibility of those who have been warned about objective infractions of the law. The judge will not deny the reality of the crime, but in the determination of the penalty, he will take into account attenuating or aggravating circumstances.
The legislator who makes laws to serve the interests of particular persons, groups or lobbies gives proof of his partiality, injustice, arbitrariness, and eventually abuse of power. At the same time, the judge who is content with a mechanical and blind application of the law also winds up being arbitrary and unjust.
Therefore, it is clear that legislation which does not provide for the respect for life threatens the separation of powers. Should, for instance, the legislator make laws to serve the interests of a foreign power, he would be guilty of high treason. While the legislator exceeds his power by abusively broadening the sphere of his competence, the judge is reduced to executing more or less arbitrary determinations of the legislature. It is hardly necessary to say that this danger is exacerbated when the law directly results from the executive's will. Law, and with it, the judicial process then risk becoming mere appendages of the executive branch.
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