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

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Hart's and Austin's Conversation

Hart is a legal positivist, but he is not identical to Austin in his views. According to Austin, a law is a command issued by a superior to a subordinate and backed by sanctions, but in Hart’s opinion, a law is a rule supported by the rule of recognition. Furthermore, Hart proposes that rules are not simply commands because they also grant rights, duties, and facilitative rights. In the event that a law is immoral, Austin would say that people have an obligation to follow them while Hart would say that there may be no such obligation.

The Separation Thesis

According to Hart’s Separation Thesis, law is separate from morality. These two sets of rules (law and morality) will frequently run parallel, but at times they may clash. If a clash occurs, individuals may evaluate legal rules with reference to moral rules to decide whether the obligation to follow the latter is greater, in which case the former would be disregarded.

Hart proposes that laws have “ought claims”; individuals ought to follow them just as they follow morally neutral rules, such as rules of etiquette or rules of a game. Legal rules differ from other rules because they are not individually chosen, they are backed by a legal system, and they are rooted in the rule of recognition. The essence of the rule of recognition is that society and individuals in the system must recognize the validity of legal rules. Laws must also be stable and effective so that individuals will obey them as authority and they should be followed for reasons that go beyond simply avoiding punishment, such as habit or long term interests.

According to Hart’s theory, judges have a special role to play. Legal rules, such as legislation and common law rules, are expressed and applied generally because there is a settled core of meaning. There are, however, exceptions: certain factual situations may fall outside of the settled core and these cases are termed as “hard cases”. Hard cases fall within the penumbra and, according to Hart, the judge must look to the rule governed practice – the legal system – to fill in the gaps of hard cases. To accomplish this, judges can use principles that run through the body of law; however, judges should not turn to morality when deciding hard cases. Relying on a consistent set of principles ensures that decision making in the penumbra is consistent. Moreover, these principles or terms of the rule governed practice consist of principles of justice, impartiality, and objectivity and may overlap completely with moral principles. Today, certain components of the Charter, such as section 7, can be seen as embodying the terms of the rule governed practice.

Fuller and Hart's Conversation

While Hart considers law and morality to be separate systems that are governed by two sets of rules, Fuller believes this separation is artificial. Fuller rejects the notion that individuals can choose whether to follow laws in instances where they may be too evil to be obeyed because it is arbitrary and personalised and fails to provide individuals with guidance. Fuller criticizes the Positivist definitions of law because they are insufficient and confusing. Moreover, the Positivists fail to explain what morality is and Hart suggests that it is potentially dangerous as a source of law.

The Morality of Law

According to Fuller, morality is an essential component of law. He rejects that law’s authority is based on acceptance of the law as valid and on the lawmakers’ recognition that they are obliged to enforce and obey the law. Fuller proposes that in order for society to accept legal rules, they must be grounded in external morality that is “independent of and prior to the law” and must produce good order. In addition, effective law possesses an inner morality because the nature of legal systems encompasses coherence, rationality, and consistency as well as the requirements of the law being known to the public and being capable of explanation. If a law lacks this inner morality it will not function as law; it is not bad law simply because of its evil ends, but because it abandoned the process of law. Fuller advances that rules fail to be law under the following circumstances: they are not general; they are not promulgated; they are retroactive; they cannot be understood; they do not remain relatively consistent over time; they cannot be obeyed because they require conduct beyond the abilities of those affected; they are contradictory; and there is disjunction between the laws as announced and their actual administration. Fuller finds Hart’s separation thesis insufficient with respect to addressing issues concerning immoral laws and hard cases. In regards to the former, the Positivists’ fail to provide a coherent theory of when one is permitted to disobey an immoral law based on a moral duty and the position that some laws are so immoral that one need not follow them is no answer at all. With respect to the latter, Fuller proposes that there is no “core of settled meaning” (and, thus, no penumbra) because context and purpose are employed to interpret laws. Further, Fuller advances that the judge’s role is to examine the purpose of the rule and the good it was aimed at achieving by considering external morality along with law’s inner morality. Judges partake in a collaborative effort that is informed by their fidelity to law which focuses on making law what it ought to be.

  • Note: The above information is based off of content from pages 183-234 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law (see "Bibliogrphy" for more details)

Application to PHS

Legal positivist theory can be demonstrated in the “hard case” of PHS. Hart would suggest that the overlapping CDSA legislation, the exemption, and the Charter represent the eclipsing elements of the penumbra. The CDSA does not fully address the issue of Insite allowing safe injection of illegal drugs therefore leaving open gaps for the exemption and for the Charter. This ultimately creates a “haze” around the primary rule or federal legislation. Conversely, Fuller would argue that the circumstances in PHS do not suggest a penumbra exists because the CDSA must be interpreted in order to serve its intended purpose: the good it seeks to achieve is in controlling the harms associated with illegal substances. To the degree that the CDSA reflects the internal morality of the law, it will be highly functional, but where it is less functional, it is not reflecting these principles. The court notes that the Minister’s refusal to grant Insite an exemption under s.56 of CDSA directly conflicts with the principles of fundamental justice (at para 127). In this case there are clearly competing purposes, challenging the functionality of the CDSA and thus supporting Hart’s theory that a penumbra exists. The CDSA may not be “bad law” merely because it deprives Insite staff and clients of their individual Charter rights, but because it abandoned the process of law, which requires compliance with the principles of fundamental justice, and therefore the inner morality of law. In viewing the complex nature of the case, both positivist’s approaches underline the importance of the judge’s role in determining the PHS case.

In PHS, the judges draw from the Charter to guide their decision. Hart would agree that a hard case with factual elements falling outside the core should be decided, such as the judges did here, by the rule-governed practice. The court’s application of s.7 demonstrates Hart’s approach, whereby CDSA - the legal rule - is evaluated with reference to the Charter, the source of moral rules.

In this supposed clash between the separate moral and legal rules, Fuller would not find Hart’s analysis of PHS provides sufficient guidance for the court. Instead he would look at how the law is informed by external morality. According to Fuller, society’s disapproval of illegal drug use is an external factor, which is recognized and ultimately embodied in the Criminal Code. Based on Fuller’s ‘8 ways to fail to make a law’, Fuller would support the judge’s finding that CDSA is ‘good’ or valid law. Ultimately, he would argue there must be social acceptance of legal rules, such as CDSA, on moral grounding because law’s authority is based on the acceptance of law as being valid.

On the facts of the case, the benefits that Insite provides for injection drug users shifts the view towards the exemption provided by s.56 of CDSA where the law may be deemed not applicable if it is “necessary for a medical or scientific purpose or otherwise in the public interest” (at para 39). This provision exemplifies the special role that legal positivism has attributed to adjudication. The court makes it a rule to have the Minister grant an exemption where the decision not would not comply with the principles of the law.

Navigate to Other Legal Theories

Theory Philosopher
Natural Law Thomas Aquinas
Positivism John Austin
Separation Thesis Hart Fuller
System of Rights Ronald Dworkin
Liberty & Paternalism John Stuart Mill Gerald Dworkin
Law As Efficiency Adam Smith
Feminist Jurisprudence Catharine MacKinnon