Category:Separation Thesis

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The Separation Thesis

HLA Hart

H.L.A. Hart

HLA Hart was a proponent of legal positivism with his Separation thesis. Hart, sees morality as “an independent normative standard for regulating and criticizing our own and others’ behaviour,” (Dimock 185) he finds that law and morality are not connected. It is possible, and rather likely, that the law and morality will run parallel to one another. There is, however, no presumption that the law embodies morality. According to Hart, if these two ideas do run contrary to each other we have a decision to make—do we follow morality or the law? The law as a system of rules is incomplete and terms can have a “penumbra” meaning their definition is unclear. Hart concluded that when one is confronted by a morally bad law, to let the conscience decide, unhampered by a connection between law and morality. He thought that certain laws might be too evil to be obeyed. Examining penumbral cases, they should be decided with regards to social aims. This decision becomes more difficult in the event that they become starkly contrasted.

For Hart, the legal system hinges on a rule governed practice. A law must have an “ought to” claim—one should follow the law because they “ought to”. We follow laws because they are universally recognized, not because we are morally compelled to. Judges are critical in Hart’s view of the legal system. Judges take the peculiarities of a case into account because both legislation and the law are expressed in general terms. Rules must apply generally in order to be practical. There is a “settled core of meaning” in which most factual situations fit. Under these circumstances the law and the facts correlate and are well settled. Outside of this, is a penumbra case where the judge’s role becomes evident. A judge decides where the case lies and how the law applies. This concept is highly contested by Fuller.

Application to the Case

The case before the Supreme court in Chaoulli v. Quebec is clearly a penumbra case. In this case the Supreme Court found the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms. The Supreme Court rendered three separate written decisions.

Deschamps identifies the issue in this case as whether the prohibition is “justified by the need to preserve the integrity of the public system” but did not question the single-tier system itself. She warns against politicizing the issue and rejects the appeal court’s characterization of an infringement of an economic right. Deschamps comments that long wait times at hospitals can result in the death of patients and that the prohibited private health care could save lives. She sees wait lists as a form of rationing and it is this policy that is being challenged as a violation of the Canadian Charter right to security of person and the quebec charter right of personal inviolability. Deschamps finds this is a violation of section 7 of the charter and section 1 of the Quebec charter.

In the second decision, both McLachlin and Major agree with Deschamp’s reasons and reach the same outcome, however, they rely more on section 1 and section 7 of the Canadian Charter to do so. They observe the “Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.” (para 104) Hart would view this case through his positivist lens and would want to follow the rules. Language is critical in understanding his perspective because a law is not good or bad, it is valid, invalid, true, or false. Framing the law in this way poses a huge dilemma for your everyday citizen. If the law cannot address society’s concerns in these terms (good and bad) and does not consider moral implications, it falls short of meeting the needs of the citizenry. Society makes value judgements on the law and the services received from the government using a moral lens which makes assessing it difficult if morality is separate. This becomes a concern about the integrity of government and the legal system.

Binnie and LeBel consider whether Quebec has the constitutional authority to establish a comprehensive single-tier plan, but further to discourage a private sector tier by prohibiting the purchase and sale of private health insurance. They see the problem in this case as centred on public policy and social values which are beyond the mandate of the courts to decide (para 161). Hart would disagree with this approach as he believes the court is purposed with upholding public policy and social values. He would argue that they should weigh the interests of both sides and reach a just conclusion.

Morality of Law

Lon L Fuller drafted a response to the separation thesis Positivism and Fidelity to Law—A Reply to Professor Hart where he assembled an argument linking law and morality.

Application to the Case

Fuller rejects Hart’s proposition of a core and penumbra. Fuller sees judges as interpreting the law to match it to the wider purposes of law and the legal system. Fuller argues that “acceptance of certain fundamental rules with respect to law making authority must be grounded in morality,” (Dimock 208) Fuller supports his position with three notions:

1. Social acceptance of legal rules: law is grounded in morality and the rules must follow the moral code of the community. In Chaoulli v. Quebec Deschamps considers saving lives as important which is a critical component of society’s current morals. Letting people die unnecessarily is unacceptable.

2. Law itself has an inner morality: the legal system serves to produce order. Law must be coherent, rational, consistent, known, and capable of explanation. Fuller would appreciate the court attempting to balance the good of society. “law must serve morally good ends in order to be law at all” (Dimock 209)

3. Obligations to obey the law: laws are moral because of our obligation to obey them. Fuller suggests that “a mere respect for constituted authority must not be confused with fidelity to the law” (Dimock 233) The challenge with this is the predicament between obeying the law and the moral duty to disregard immoral laws. Fuller contends we must obey the law because it is moral. With competing purposes, judges must balance them. In Chaoulli v. Quebec the justices had to balance saving lives with the benefits of a single tiered egalitarian system which was no easy task. Fuller contends that “judges must view their duty of fidelity to law in a context which embraces their responsibility for making law what it ought to be.” (Dimock 218) By upholding the aversion of the law to punish the morally innocent, i.e. a Dr. seeking to assist a patient, and a patient seeking treatment when the system in place was not working for him, the court was exercising their mandate to “make the law what it ought to be.” At the same time, this decision poses challenges around administrative efficiency and order which would be a challenge to Fuller’s outlook.

Chaoulli v. Quebec seems to be more in line with Fuller’s position, based on the moral conundrum of saving lives where the current system is failing, although one although one should be careful not to necessarily equate morality and fairness. Further the court is part of a coherent system and avoids the eight routes to disaster posited by Fuller: 1. The lack of rules or law, which leads to ad hoc and inconsistent adjudication. 2. Failure to publicize or make known the rules of law. 3. Unclear or obscure legislation that is impossible to understand. 4. Retroactive legislation. 5. Contradictions in the law. 6. Demands that are beyond the power of the subjects and the ruled. 7. Unstable legislation (frequent revisions of laws). 8. Failure of congruence between adjudication/administration and legislation. (Dimock 232) Fuller sees bad law as bad because it abandoned the legal process. In this case, the court makes a sound decision based on good reasons and looks at similar issues in other countries to inform itself, thus maintaining the morality of the law and its connection to society.


The main problem with Hart’s position is that he never really articulates what morality is. Fuller looks at deciding hard cases as following interpretation looking at external morality and the law’s internal morality. The law has intrinsic rationality and consistency in the system which is what is seen in the judgement of this case. It is about creating order in society. By this tenet The Supreme Court made an astute decision that provides for expediency in the system, protects social interests with regards to people adopting and maintaining a high standard of care.


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