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

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Hart's Separation Thesis

Herbert Lionel Adolphus Hart[1]

The "separation thesis" is easily understood as the assertion that law and morality operate within two distinctly separate spheres. Essentially, legal rules exist independently from moral beliefs. However, laws are incapable of being 100% prospective, and a scenario will inevitably arise where it becomes unclear whether or not the law applies. These scenarios become known as the "hard" cases; cases where a legal decision needs to be made, and it becomes up to the judge's discretion to decide what precisely is the "core" meaning of the law. But, how does a judge decide what falls inside or outside the core meaning of the law? This gap is the penumbra, an area where it is unclear if the particular case falls within the core of the law in which it is being tried.

Hart uses the example of a law seeking to ban the use of "vehicles" in a public park. Although we plainly know a vehicle is an automobile, it can be interpreted as being a multitude of other items, such as a skateboard. This unclear area in the law where interpretation must be used by the judiciary is the penumbra[2]. This penumbra surrounds all legal rules. Hart asserts we must avoid the "arid wastes" [3] of inappropriate definitions when navigating the penumbra. Although when confronted with situations of unclear definition we are tempted to cut to a moral understanding of the word, Hart asserts this desire should be kept to "as little arbitrary and as 'necessary' as the connection between law and sanctions"[4] as possible.

According to Hart, judges should fill the gap of the penumbra by considering the governing rules from which they arose: the basic principles of justice. If judges successfully follow these principles, the concluding judgement will be one of an "amoral" nature. Now, "amoral" is not to be confused with "immoral". An "amoral" decision is not a counter-moral conclusion, it is a decision divorced from morality; a decision founded entirely on the principles of law. Additionally, as one essential element of the concept of justice is equality, this is better achieved through a standard interpretation of the law. Hart asserts that moral interpretations of the law encourages an individuality of the law's application, thereby making the predictable nature of precedent harder to apply consistently and genuinely[5].Such a decision is possible under the "separation thesis" because of the belief that law is separate from morality.

Fuller's Critique of Hart's Separation Thesis

Lon L. Fuller[6]

Fuller on the other hand asserts an impossibility of divorcing morality from law. The general idea of Fuller's critique of Hart's "separation thesis" is that laws themselves are inevitably encumbered with the instrumentations of morality; as Fuller states: morality is another "kind of law"[7]. Laws are not made because of an objective need for order; laws are made because of an objective need for a subjectively "good" order. Additionally, even a law is made and intended as a mere order, it will be injected with a sense of morality as a result of being produced by a moral source[8]. The very subjectivity of "good" is indicative of a moral valuation. This moral valuation is also the reason why laws have an inherent "inner morality", and why an "immoral law" presents a struggle for legal obedience.

Additionally, the concept of a law's defined "core" is a folly. Judge's cannot settle on a "core meaning" of a law, because laws themselves are always subjected to interpretation. Fuller asserts that the very need for "judicial interpretation" signifies the impossibility of a "core meaning". Furthermore, when judges do attempt to locate the "core" of a law when presented by a penumbral gap, they can, and often do, turn to morality to help fill in the gap to determine the "good" the law was attempting accomplish. Fuller uses the example of a law crafted to punish those who sleep in a railway station. Suppose two men were arrested for this offence, one a vagabond and one a passenger awaiting the next train. Under Hart's assertion to ignore the morality injected into law, both of these individuals would be punished as per the letter of the law. However, it is clear, through a moral evaluation of the law that it was clearly designed to dissuade the behavior of the vagabond, and not the behavior of the passenger. In this example, the "core" of the law is essentially a moral one; the law itself is tied to morality; there is no separation of law and morality[9].

Reconciling the Conflict

Fuller and Hart, although seemingly at opposite ends of a theoretical spectrum, can be easily reconciled with one another. By considering Hart's assertion that law and morality are separate sphere's, and using Fuller's critique as an explanation for the emergence of the penumbral gap, we can see where the role of the judge appears. Here, the judge's role is not to be an amoral vessel according to Hart, nor a morally motivated judicial interpretation device according to Fuller, but to be the arbiter occupying the gap in which law and morality overlap.

Where the Penumbra Exists

If we consider judges to be arbiters of the gap, their role becomes clear: they are to enforce the principles of law, while considering the morality implicated by the legislative intent. By doing so, they are not entirely motivated by an ultimately subjective "good" of the law, nor will they be bound to enforce an immoral law as a result of blind obedience to legal principles. In this sense, judges are constantly shifting between a "Hartian" appreciation of controlling/ignoring their own morality, and embracing their inner "fuller" by evaluating the moral choices made by the legislature.

Applying the Separation Thesis to B.M. v British Columbia[10]

All three judges focused on the main issue of whether or not the non-feasance of the investigating officer was a material contribution beyond "de minimus" range resulting in a causal connection linking the RCMP to the harm suffered by the appellant. Interestingly there are elements of both Hart's separation as well as Fuller's criticism present in the judges' reasoning.

Donald J.A.

Donald J.A. focuses on the issue of whether or not the lack of preventative action taken by the RCMP is susceptible to being considered a contributing factor to the harm suffered by the appellant. In this case, the penumbra is not an interpretive issue as demonstrative in Hart's example of the "vehicle"; in this case the penumbra appears in the need to interpret an omission of action. The only way for the RCMP to be causal linked to the harm suffered by the appellant is to prove they materially contributed to the outcome.

Strictly speaking, material contribution tends to require some form of positive action, and herein lies the penumbra; can a contribution (beyond the De Minimus range) be accomplished through an inaction? If Donald J.A. had followed Hart's separation thesis and divorced himself of moral considerations, it is unlikely he would have found an action in the officer's inaction; the law must be clear in its application. If we started interpreting inactions as actions, how can the law ever be predictably applied? Hypothetically speaking, we could fall into a situation where both actions and inactions are capable of resulting in an equal amount of guilty "action".

However, Donald J.A. interprets the inaction of the RCMP through an moral consideration, in line with Fuller's criticisms of Hart's separation thesis. Donald J.A. describes human behavior as "notoriously unpredictable", especially that of an erratic irrational man like the perpetrator in this case[11]. With this in mind, Donald J.A. asserts that the RCMP owed a positive duty of action towards the appellant, and their inaction was in violation of a clear moral obligation; the moral obligation of the law to protect women suffering from battered wife syndrome as a result of domestic abuse[12]. Donald J.A.'s disposition clearly resulted by navigating the penumbra presented by the RCMP's inaction by recognizing the moral purpose of the laws regarding domestic abuse.

Smith J.A. and Hall J.A.

The judgments of Smith and Hall J.A. are certainly more in line Hart's separation thesis than Fuller's criticisms. Where Donald J.A. was willing to navigate the penumbra of inaction using his moral interpretation of the law's purpose, Smith and Hall J.A. were unwilling to allocate a moral reasoning onto their interpretation of the penumbra. As a result, although they recognize that the RCMP owed a duty to conduct more of an investigation, the inaction could not culminate into a material contribution of the harm suffered by the appellant. Here, instead of recognizing and affirming the moral underpinning and purpose of the law, they focused on the need to keep the letter of the law clear.

There were perhaps some policy reasons behind their refusal to allocate an inaction as being a material "action" capable of contributing to harm; as previously explained, interpreting inaction as action would be problematic for the consistent application of the law. But, Hart's separation thesis does succinctly explain their dispositions: the law requires evidence beyond the "De Minimis" range to find a causal link between the RCMP and the harm suffered by the appellant. Although there is a moral pull for recognizing such a causal link, it would complicate the application of the law. As a result, the decision of Hall and Smith J.A. was not immoral (although there is an argument to be made) but amoral: they asserted the separation of morality from law in their interpretation of "inaction's" penumbra.


  1. [1]
  2. Chapter 8: The Separation Thesis, page 193
  3. Chapter 8: The Separation Thesis, Page 201
  4. Chapter 8: The Separation Thesis, page 201
  5. Chapter 8: The Separation Thesis. Page 202
  6. [2]
  7. Chapter 9: The Morality of Law. Page 213
  8. Chapter 9: The Morality of Law. Page 217
  9. Chapter 9: The Morality of Law Page 228
  10. B.M. v British Columbia, [2004] B.C.J. No. 1506, 2004 BCCA 402, [B.M.]
  11. Case, para 81
  12. para 97