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

Legal Perspectives: Hart and Fuller:

Under Hart’s Separation thesis, law is separate from morality. Law as it is must be distinguished from law as it should be. When we apply Hart’s Separation thesis to E.B. v. Order of the Oblates, we see that tort law and the test for vicarious liability exists to regulate people and their behavior. Hart would say the moral aspect ties to the “ought” claims of law.

Tort law allows people to observe the rule of recognition, and follow rules because they’re good, not just because they have to, or for fear of punishment.

According to Hart, laws are incomplete when a case falls into a gap outside of their core. When this happens, Judges must decide whether they fall into terms of the rule- governed practice. Judges decide tort cases in the “penumbra”. This is done through the exercise of their discretion to reach a conclusion consistent with personal morality and underlying principles of justice. To combat these hard cases, judges come up with a test to create consistent decisions. E.B. v. Order of the Oblates refers to the Bazley test to determine whether the employee should be found vicariously liable. Although it may be seen that it was not moral for the victim in this case for the employer not to be found liable, Hart believes that the rule-governed practice is not the same as morality. Morality may intersect with the law in this case, if it were drawn upon to fill in the gaps in the law. However, morality would still not be a part of the law according to Hart, and it would have been inconsistent to draw upon morality to find liability on the part of the employer since the previous analogous case in Bazley set out the common law test. Here, morality is not a part of the law, but it is valid through its effectiveness and fairness in the application of justice. The consistency of the holding in E. B. v. Order of the Oblates ensures that the law stemming from the common law rule is effective. It is a morally neutral rule that ensures liability is only imposed onto employers who can clearly be shown to be in proximity to the harm that was caused.

In considering Fuller’s position on law and morals, tort law lays out a situation to dissect it and determine the wrong that was caused. For fuller, this means that the process of explanation will pull decision toward the good and away from any immorality. Fuller would also recognize that the vicarious liability test used in E. B. v. Order of the Oblates punishes immoral practices of the past. This was a popular idea post- WWII. In E.B. v. Order of the Oblates, Fuller would likely argue that the result was not grounded in an external morality independent of the law.