Course:Law3020/2014WT1/Group C/Separation Thesis

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H.L.A. Hart's Separation Thesis

Hart's Separation Thesis

The Separation Thesis by theorist H. L. A. Hart is a foundational concept of Legal Positivism. This thesis, in its most basic meaning, predicates that Law and Morality are distinct from one another; hence the notion of “separation” underlying the view. Although the theory points to this separation between Law and Morality, Hart confers that they do run parallel to one another. Hart simply puts it that, “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (H.L.A. Hart, The Concept of Law [Oxford 1961, 2nd ed 1994] at p. 185, 186). In other words, it has often been the case that Morality and Law have tended towards similar ends, despite their conceptually different obligations.

The difference therein lies in that the Law only compels a person to follow it on an “ought to do” basis. This is not a duty with a greater purposeful end amounting to “goodness”, or “rightness”, as would be the case with morality; rather it is a duty that should be followed for a greater social function like etiquette or rules that facilitate collaborative efforts.

What sets these “laws” apart from other socially constructed rules, like custom or etiquette, is that they are established as part of a greater system – the Legal system, which applies collectively to everyone under its jurisdiction. The rules are not individually chosen and followed by preference. The Legal System operates under the Rule of Recognition, which requires that Judges and Legislators recognize the laws and their authority, and adhere to them as prescribed in the collective belief they all have obligation to do this. Unlike Austin’s theory, this is not necessarily something that they do for fear of sanction, rather they do this for the stability and effectiveness of the system and in the interests of converging and legitimizing their practices. Members of society in turn follow the laws in recognition that they collectively bind people as universal rules and settle the square.

With the separate camps of Morality and Law carrying on in co-existence, they may inevitably fall in conflict with one another. When a person is presented with a decision of whether to follow a law, and their moral compass tells them that such a law would be too “evil” to obey in those circumstances, Hart would say that one does not need to follow it. Such cases lead to the appearance of the Penumbra: an obscurity or uncertainty which occurs when a factual situation falls outside of the settled core or meaning of the legal rule. The penumbra, literally meaning partial shadow or eclipse, represents the gray areas in the law that arise in hard cases. A judge will be burdened to determine whether a particular set of facts falls within the settled core of meaning of a legal rule, and what the law ought to be. In these hard cases, judges may apply moral rules to fill in these grey areas, leading to confluence between the law and morality, but they cannot do so with inconsistent discretion or by their mere personal morality. They must draw from the terms of the "rule-governed practice” that gave rise to the laws; principles which are true or consistent in the context of the legal system. Essentially, it follows that judges should follow an accepted strategy and logic that is consistent to “find” the law, or the acceptable outcome.

Examples of "the rule-governed practice" in Canada may include the Charter and the Fundamental Principles of Justice – ideas that by consensus are vital or fundamental to our society, including balance between interference of the state and individual freedoms. Terms of rule-governed practice are generally broad enough to be read into hard cases to determine a more acceptable outcome.

Lon Fuller and Criticisms of Separation Theory

Lon Fuller

Lon Fuller sets out a number of criticisms of Separation theory: It is his contention that society’s acceptance of rules is inevitably grounded in a form of external morality. The order or cooperation that the rules create is in essence “good”. Recognition appeals to moral standards of valuing others, rather than just the law in itself.

Fuller Believes the law also has an inner morality of keeping certain principles of law effective. Essentially, the legal system follows an ideal; it creates justice and avoids disorder. To be effective in doing this it must conform to internal values, since without them, the law ceases to function as it should and sinks into a form of corruption. To explain this, Fuller uses the story of a fictional king named Rex and his follies which ultimately demonstrate the Public Code needs coherency, reasonableness, rationality and consistency. These values outline the principles behind Fuller's concept of morality in the law.

Fuller also argues that separation theory and legal positivism do not address immoral laws. He suggests that there is no coherent idea of when one should follow a law or chose not to if if defies his morals. In his Fuller's view, there is no answer to the greater conceptual problem of balancing the conflicting obligations of morality and "evil" law. Critics of the Separation theory have gone as far to say that the lack of distinction and the sharp separation leads to dictatorship regimes like that of Nazi Germany.

Lastly, Fuller criticizes the adequacy of positivist theory’s determination of what obliges people to follow laws. Fuller suggest that the rational element of coming to logical decisions is in effect an individual’s attempt at directing those decisions towards what is "right" or "good". Fuller argues that it would be wrong to assume that an evil system would satisfy rationale logic as easily as a righteous one does.

Analysis of Moore v. British Columbia (Education)

In this case at hand, there are a number of rules at play. The Human Rights Code, section 8, is the primary rule that the court is dealing addressing in the issue. This law prescribes a rather general rule as per discrimination and is intended to direct the general public with how to conduct themselves as a whole: section 8 states that a person must not discriminate against a person or class of persons regarding any accommodation, service, or facility that would be customarily available to the public because a mental disability, without a bona fide and reasonable justification. It should be noted here that there is a potentially moral aim, which is to prevent the moral evil of discrimination. Hart would argue that the law in this context only coincides with a moral aim because the goals of "law" and the goals of "morality" have a tendency to be parallel, although they are not one in the same.

Hart theorized that legal rules could be categorized in two ways. Firstly, primary rules are laws that regulate the conduct of society and set the broader concept to be enforced. While these laws should be laid out in general terms, with room for interpretation, all such laws will have a "settled core of meaning" or a limit to how they should apply. The Penumbra appears when factual situations skirt around the boundaries of this core, or morally complicate it, making the legal solution unclear. Secondary rules direct officials and judges on how the primary rules should operate and how they should be interpreted. These rules also allow courts to deal with uncertainty about what the law prescribes, or how to flex rules that are overly rigid to come up with solutions in disputes, while maintaining consistency and legitimacy.

The legislation in this case is broad: terms such as “discrimination”, “bona fide reasonable justification” and “mental disability” are open to interpretation - which may or may not mean that this rule applies to Moore. The Courts use secondary rules in order to understand the application of this rule for the purpose of a dispute. The secondary rules adopted by the court include a test for discrimination. The Rule of Recognition requires that both sets of rules be followed in order to come up with the proper conclusion. A judge could not simply decide on a subjective analysis of the legislation. Instead, the outcome of the decision hinges on the legal test (a secondary rule):

Prima Facie discrimination is found when complainants can assert that:

1. They have a characteristic protected from discrimination under the Human Rights Code;

2. That they have experienced an adverse impact with respect to the service; and

3. That the protected characteristic was a factor in the adverse impact.

Another secondary rule determines that once the prima facie discrimination is found, the burden shifts to the respondents to justify the conduct or practice. These are analytical rules which needs to be collectively followed by all courts interpreting section 8, in order legitimize the legal process.

As was mentioned, there was no dispute is this case as to whether or not Moore had a mental disability protected under the human rights code, and whether or not he suffered discrimination. As the law had been laid down, the school district did not have a defence of financial constraints, especially without taking alternative measures to accommodate Moore’s needs beyond undue hardship. Given the clarity of the law and the facts at hand, it would not seem that the penumbra was not an issue here, and that the courts had a straightforward decision as it pertained to discrimination against Moore. The point of contention in the Court of Appeal and the Supreme Court was the comparator group to which Jeffrey would best be held, and whether the discrimination would amount to systemic discrimination. Here, there was a gray area. Finding that the connection was too remote suggests that this case did not strike the core of meaning that that piece of legislation was meant to reach.


Hart would likely have agreed with the Supreme Court in this decision on the basis that they took a focused approach on the Human Rights Code, and came to a decision within the scope that they felt the legal rule was meant to reach. They were able to determine this by following the secondary rules set out by common law and following the analysis put forward by other judges before them. All were in agreement with the issue of discrimination against Moore, and Hart would not likely disagree. As for finding no systemic discrimination in this case, Hart would likely agree that that the Supreme Court was right in focusing on Moore as an individual: The rules should not be stretched beyond their core of meaning, and the Rule of Recognition requires that judges follow the normative rules rather than radicalize where unnecessary.

Treatments of Selected Theoretical Perspectives

Legal Perspectives Philosophers
Natural Law Thomas Aquinas
Legal Positivism John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
Separation Theory HLA Hart
System of Rights Ronald Dworkin
Liberty and Paternalism John Stuart Mill and Gerald Dworkin
Law as Efficiency Susan Dimock
Feminist Jurisprudence Patricia Smith and Catharine Mackinnon