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

Traditional Positive Law Theory


Traditional legal positivism according to Austin focused on law as a command from superiors to subordinates. In Austin’s view a positive law must be followed provided that it was created within the system of the rules that has been established by society for creating law. Austin was clear that morality was an entirely separate concept from law.

Hart and the Separation Thesis
As a modern legal positivist, Hart built on and adapted Austin’s theories. Hart firmly agreed with the position that law and morality were separate. Hart actually viewed this as beneficial because when separated from morality, laws can be evaluated by society with reference to moral rules. An individual can then weight a legal rule against a moral rule and determine whether there is a greater obligation to follow the legal or moral rule. Hart focused on the importance of laws being created by our legal system and legislatures as having the “quality of lawness” and that laws are rules that we as members of society ought to follow. One of the essential concepts of Hart’s theory is the “Rule of recognition” which assumes societal acceptance as well as belief in following the law.

According to Hart, the primary role of Judges is to apply the rules established through either legislation or the common law. As legal rules are expressed in general terms, the majority of cases will fall within a “settled core of meaning” that judges will be able to apply. Hart would say that when a case falls outside of the settled core of meaning is it in “grey” area called the penumbra. In these cases, Judges use the “rule-governed practice” such as the principles of justice, impartiality and objectivity to guide their decisions.

Fuller’s Response
Fuller provides a strong response to Hart’s theory. Fuller makes the points that law itself has an inner morality, and it is this inner morality which causes society to accept laws as valid. When Hart refers to judges following the rule governed practice in cases that fall within the penumbra, Fuller suggests that what judges are actually doing is giving effect to the internal morality of the law. Fuller would also say that there is a purpose and reason for consistency in the law beyond just following the “rules of the game”. He believes that laws function as part of a coherent system and are more than just commands, and the internal morality is a key element of what makes the system coherent and consistent. One example that Fuller used to explain that laws could not be acceptable without the element of inner morality was that under Hart’s theory the laws in Nazi Germany would be acceptable because they were created following all of the guidelines of the “rule of recognition”. Fuller would explain that the reason that the laws of Nazi Germany could not be justified is because they did not contain the inherent morality which he describes as so essential. Finally, Fuller uses the example of “King Rex” to illustrate the ways in which laws may be issued by a superior ineffectively. These include laws being ad-hoc, incoherent, contradictory, impossible to obey, retroactive, unknowable by members of society, or frequently changing.



Hart, Fuller and Canada v Bedford
On Hart’s theory, Canada v Bedford is a case that falls within the Penumbra. It is not easily settled as there are conflicting rights and interests that are being balanced against one another. Being in the penumbra, Hart would say that the Judges involved were obligated to then follow the “Rule governed practice” in making the decision. The judges in fact did exactly this. The Court struck down the “immoral” provisions of the Criminal Code using section 7 of the Canadian Charter of Rights and Freedoms. Section 7 reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Within Hart’s concept of the rule-governed practice, principles such as the principles of fundamental justice are exactly what should guide judges in their decisions, By using Section 7, and subsequently section 1 to guide their decision, the Supreme Court of Canada is operating to make their decision based within the “Rule-governed practice” which is exactly what Hart would argue that they should do.

Fuller would add a number of elements to the analysis. For example, he would likely point out that there is an inner morality in each of the provisions of the Charter. He would suggest that this inner morality plays an essential role is swaying the Court towards it’s decision. Fuller would also support the court in challenging the provisions of the Criminal Code. These provisions would not be seen as being consistent or rational as a law should. For example, the provisions, which were intended to regulate prostitution and the manner in which it could be carried out, have actually had the effect of making it less safe for those working as sex-trade workers. There is an inherent flaw in allowing laws to stand which violate “security of the person”. Under Fuller’s analysis this flaw would be that the provisions do not have a consistent inner morality, and this is why court has recognized that the provisions should not continue to be recognized as valid law. This also can be seen in the analysis of the Court under section 1 of the Charter where the law is found to be unjustified as it is not minimally impairing, particularly because of the potential impact on those not directly in the sex-trade industry. Fuller might also say that some of the provisions for sex trade workers would also fall into the “King Rex” traps of being both contradictory and impossible to obey. For example, the provision prohibiting communication actually had the effect of creating an increase in harm for sex-trade workers by being unable to screen potential clients. It would be impossible then for a sex-trade worker to obey the provision without creating an increased risk of harm.

To summarize, under the theories of both Hart and Fuller, the decision of the Court in Canada v Bedford would be seen as correct. The decision falls within the scope of both theories, and it is interesting to note that both theories would likely have come to the same conclusion as the court in this case. The theories do however offer quite a different in analysis in terms of how the way in which they would arrive at the decision.