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

Hart's Position
HLA Hart built upon on Austin’s theory of legal positivism and responded to some of the common criticisms directed at legal positivism. Hart proposes two basic premises for positivism: 1) Law and Morality are different things. Hart asserts that in practice these two concepts will not conflict because most laws are moral but it is not necessary i.e. conflict between law and morality is possible. In case of a conflict, the individual has to choose between either following the law or morals. 2) Hart explains that laws have authority because they are made by a process that is well accepted by society and therefore the citizens feel compelled to obey it. Hart calls this established process of making laws the ‘rule of recognition’; if a law is made through that process, it forms part of the legal system and is authoritative. The ‘rule of recognition’ in any society is a product of two things: the acceptance of the rule of recognition by public officials and the public and a moral compulsion to accept that rule. However, Hart says that a rule of recognition is not always the correct choice; it could be wrong.

Hart then goes on to explain the role of judges in a legal system. Hart differentiates between easy and hard cases. The easy cases, by definition, are easily resolved because they fall within the plain meaning and scope of a law. However, there are hard cases that do not fall within the ‘core’ of the law and might be in the ‘penumbra’ of the meaning of law. Hart claims that even in the hard cases the judges do not draw simply on morality and decide the hard cases. Judges in deciding the hard cases turn again to set rules that have been established and followed by judges because they feel compelled to; almost like a rule of recognition again.

Fuller's Position
Lon Fuller takes issue with the Hart’s and positivism’s, generally, separation of law and morality. First, Fuller argues that the ‘rule of recognition’ is based in morality i.e. people only obey and feel compelled to obey laws that conform to the rule of recognition because they believe that the people involved in the process are guided by morality and therefore the laws produced by this process are moral. Secondly, Fuller argues that even apart from the process, law has an inner morality as well because a law has to be made in accordance with certain requirements which ensure that all laws are moral. Thirdly, Fuller argues that positivist’s claim that law and morality are separate fails to explain why people choose to obey immoral laws. He questions their motivation to obey unjust laws if the separation between morality and law is so apparent.

The Canadian Context
In the world around us, there is more evidence for the truth of Hart’s position rather than Fuller’s position. We live in a constitutional democracy. Firstly, in a multi-cultural society it is dangerous to combine law and morality because morality can be subjective and therefore different for different people. Hence, it is necessary for law to separate itself from morality and focus on maintaining peace and stability. Secondly, it is apparent from our law making process that it is possible to pass immoral laws because the law making requirements are only procedural and not substantial. Also, even with the Charter in place, governments can choose to override rights of citizens by invoking the ‘notwithstanding clause’ provided in the Charter itself. Thirdly, people sometimes follow immoral and unjust laws, like the judges in Nazi Germany, because they do not simply realize that the laws are immoral at that point in time and history. It is the same logic behind patriotism: people who believe that killing another human being is the greatest sin would nevertheless kill strangers in a war zone because they do not feel any conflict with their morals. There are real forces such as propaganda and the instilling the feeling of patriotism as a supreme feeling in children from an early age can be used to compel people to do things that would otherwise be morally abhorrent.

Application to the Case
The law in question in this case is the Ontario Health Care Consent Act. The doctors challenged the applicability of the law to situations of withdrawal of life support. The first concern for Hart and Fuller would be to determine whether the law is legitimate or not. The law in question was passed by the Ontario legislature according to all the requirements of the Ontario and Canadian legislative processes. The legislature is regarded as the legitimate authority by everyone in Canada and therefore the law satisfies the ‘rule of recognition’ requirements and is a legitimate law according to Hart. According to Fuller, for the law to have legitimate authority it has to be grounded in morality. The particular law in question relates to the matters of consent regarding the treatment of patients who are unable to give consent themselves. Making decisions in the best interest of the incapable person is fully consistent with morality. Since that is what the law in question is meant to do, Fuller would approve of the law as legitimate. The HCCA is not a law that is inconsistent with morality; Hart stated that in most cases they would be consistent but it is possible for them to be in conflict. This is a “hard” case, in the words of Hart, because it does not fall in the settled core of meaning of the law. The HCCA had been in effect for about seventeen years when the case was decided but there hadn’t been a case that raised the question of withdrawal of life support. Hence, this case falls in the penumbra of cases that Hart theorized about when the judges have to interpret the legislation and apply it to the situation at hand. According to Hart, there are rules in a legal system about how to interpret legislation when it does not apparently fit the situation at hand. He argues that this approach is not completely formalistic with the judges merely applying the words of the law but they have some discretion while working within the rules while interpreting laws. In our legal system, judges have adopted the ‘words in context’ approach where they interpret the specific words used in a law in the context of the purpose that the law was meant to serve. Interpretation of statutes in Canada is also guided by the Interpretations Acts at the federal and provincial level. The interpretation of the HCCA by the SCC is in accordance with the interpretive doctrines that have been widely accepted by courts all over Canada which allows jurisprudence to be somewhat consistent in terms of their interpretation of statutes.

Fuller asserts that the so called “hard” cases in the penumbra are where the judges uses their subjective morality to aid in the interpretation of laws. Fuller asserts that there is no such thing as the penumbra and that law is always being interpreted by judges according to what they think is morally right. It is from this interpretation and gap filling by the judges that the law derives its moral legitimacy because the law is actually giving effect to morally grounded intentions of the judges.

Fuller has a good argument but it does not successfully challenge Hart’s position at least in the Canadian context because the courts in Canada are bound by rules of interpretation and they do not have unfettered discretion. The courts have to take into account the purpose, context, words use in the statute, and the intention of the Parliament while interpreting statutes. The SCC has explicitly stated that it is not the job of the courts to review the substantive content of the legislations; even if the law is clearly a bad law but as long as the intention of the Parliament is clear the courts have to give effect to that intention. This process of interpretation was also applied in Cuthbertson v Rasouli by both the majority and the dissent, however they arrived that different results. This case was only about the applicability of the law rather than its substantive content and therefore does not completely conform to either Hart’s or Fuller’s view. However, it does lean more towards Hart’s position by showing that judges have some discretion within the broader framework of statutory interpretation.