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

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HLA Hart’s Separation Theory

The Separation Thesis

HLA Hart

H.L.A. Hart is a modern legal positivist. He believes that morality and law are separate systems. While Hart believes that the two can run parallel, they are still two distinct entities [1]. Hart would argue that legal rules should be evaluated with reference to moral rules. However, if there is a clash between the legal and moral rule, then one must weigh the competing obligations. Hart believes that while law is not morality, the law does not supplant morality. Therefore, a law may still be a law in a legal sense, but may be too “evil” to follow.

Rule Governed Practice

Laws have “ought claims” which try to tell the public that we “ought to follow” them[2]. These “ought claims” are similar to what other rules in games have. For example, in a game of basketball, there are certain rules that players must follow[3]. These rules are morally neutral and tell us how to behave while playing this game.

But what makes legal rules so special? Legal rules are not individually chosen. A person may choose to not follow certain rules in a game. However, a person cannot choose which legal rule to follow and which not to follow[4]. All legal rules must be followed. Legal rules are also backed by a legal system. This legal system is a social machine. It dictates how people behave on a daily basis. Finally, legal rules are rooted in the rule of recognition.

Laws do not need to be moral in order to be valid. Instead, Hart asserts that valid laws should be understood in terms of the rule-governed practice. What is the rule governed practice? It is the legal system as a whole. There are principals that run through the entire body of law and the legal system itself. This “rule governed practice” is what leads to consistent decision making in the penumbra cases.

What do Judges do?

In Hart’s separation theory for law, judges play a special role[5]. Legal rules, such as the common law and legislation are expressed in general terms, they have a general application. There will generally be a “settled core of meaning.” However, sometimes cases will not fall in this settled core. Instead, cases may fall in the “penumbra.” Penumbra cases are those “hard cases” which fall to the judge to decide whether the case falls within in a settled core meaning[6]. Judges then rely on the principles of justice to exercise their discretion to determine how a case should be decided. Judges are obliged to conform to these principles, which form the rule governed practice, and in doing so, formulate patterns that can be relied upon in the future.

Lon Fuller’s Critique of Hart’s Theory

Lon Fuller

Questioning the Separation Thesis

Lon Fuller has an opposite view when compared to H.L.A Hart. He believes that separating morality and law is not possible[7]. Fuller’s argument has four main points. First, he believes that social acceptance of legal rules depends on grounding in external morality. Second, Fuller believes that law itself has an inner morality. Third, he argues that positivists cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to obey immoral laws. Positivists, also, cannot provide a coherent theory of when one is obliged to follow one over the other. Lastly, Fuller criticises the “core” and “penumbra” theory of judicial interpretation. He says there is not settled core meaning and therefore no penumbra. He believes that laws are always interpreted in context and with reference to the purpose of the “rule” and the good it was to accomplish.

External Morality

Lon Fuller’s first belief is that social acceptance of legal rules depends on grounding in external morality[8]. Hart’s “rule of recognition” claims that law’s authority is grounded in the acceptance of law as valid, and lawmaker’s recognize themselves as obligated to enforce and obey the law. Fuller argues that any such recognition is ultimately grounded in morality. He believes that “the appeal must be to a moral standard independent of and prior to the law.” He thinks that recognition to obey a law must be rooted in an external source of morality.

Law’s Inner Morality

Fuller believes that the law itself has an inner morality. He believes that there is something intrinsic to the nature of legal systems. This may be in the form of coherence, rationality, consistency, or the requirement that law be known and be capable of explanation[9]. All of these factors points towards an inner morality of law. Fuller says that the purpose of law is to produce order. In order to be effective in doing so it must conform to these internal requirements. Where these internal requirements are missing, the “law” does not act like law, and is something else.

Problem of Immoral Laws

Lon Fuller says that immoral laws cannot be explained by the separation thesis. The separation thesis does not provide an adequate explanation for a general obligation to obey the law. He believes that it is of no use in the dilemma of one struggling between duty to law and immoral/unjust laws[10]. Positivists cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to obey immoral laws, and cannot provide a coherent theory of when one is obliged to follow one over the other. The positivist answer, that some laws are so immoral you don’t need to follow them, is no answer at all.

The Core and the Penumbra

Fuller also criticizes the “core” and “penumbra” theory of judicial interpretation. The judicial duty to the law requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve) while referring to both external and internal morality. Fuller asserts that there is no “core of settled meaning” (and therefore no penumbra)[11]. Laws are always interpreted in context, and with reference to the purpose of the “rule” and the good it was put in place to accomplish. Fuller says that the “hard cases” are those where the purpose is uncertain, or competing purposes are in play. When judges have to determine the good that the law was to accomplish interpretation will necessarily refer to (external) morality as well as law’s inner morality.

Application to Granovsky v. Canada (Minister of Employment and Immigration)

As previously mentioned, Hart believed that morality should be a separate concern. In Granovsky, a contributor felt he was discriminated against because he was treated differently than fully disabled workers. Hart would say that the rule in question, which says that only those who contribute to a plan can benefit from it, has nothing to do with dignity or morality. The system was set up to provide for contributors who cannot work and need support (such as the fully disabled). In this case, the rule in question allows this to occur. H.L.A Hart would say that the rule governed practice is objective and about the end aspect of protecting the people that actually need help.

However, sometimes there may be overlap between the law and morality. The Canadian Pension Plan does overlap with a moral good. The plan is supposed to help the people which need it most. It was created with special provisions so people in need could benefit from it. The set up of the plan allows for this. Hart would argue that while this looks like morality attached to the law it is actually just a natural consequence of following the proper order.

The drop out provision in question here has nothing to do with morality. Neither does Section 15 of the Charter. Both of these provisions allow for good governance. In the case of the drop out provision, it allows rectify potential problems which certain contributors may face. Hart would also say that Granovsky should have followed the rule set out in the CPP. As Hart said, laws have “ought claims” and the public ought to follow them.

An interesting point arises in this case because Granovksy had the choice to take part in this CPP program. He did not need to contribute; he had the option of contributing. The rule of recognition says that if a rule is recognized by people it will be valid. Granovsky bought into the plan; therefore he must have thought that it was a valid law.

Fuller, on the other hand, did not have the same views as H.L.A Hart. However, it is likely that he too would have reached a similar conclusion regarding the law in question, as well as the decision. Fuller would argue that the CPP exists as a program due to the inner morality aspect. An inner morality guided Parliament to include certain provisions. The purpose of the drop out provision was to help people who may have problems with making the required contributions to the aggregate fund. This law is moral and good within itself.


  1. Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Education Canada, 2002) at 188.
  2. Ibid at 196.
  3. Ibid at 190-191.
  4. Ibid at 201-202.
  5. Ibid at 194-195.
  6. Ibid at 196-197.
  7. Ibid at 208-209.
  8. Ibid at 211-212.
  9. Ibid at 217-218.
  10. Ibid at 220-223.
  11. Ibid at 227-228.

Table of Contents

Created by Cole Rodocker,Tajinder Rathor,Nick Rogic,Toby Davis
Legal Perspectives Legal Philosophers
1 Natural Law Thomas Aquinas
2 Legal Positivism [John Austin,HLA Hart, Jeremy Bentham,Joseph Raz]
3 Separation Theory [HLA Hart & Lon Fuller]
4 System of Rights Ronald Dworkin
5 Liberty and Paternalism [John Stuart Mill & Gerald Dworkin]
6 Law as Efficiency Susan Dimock
7 Feminist Jurisprudence Patricia Smith & Catharine A. Mackinnon
[Professor Margaret Hall]