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

HLA Hart & Lon Fuller

Separation Theory
Under H.L.A. Hart’s Separation Thesis, law is separate from morality, but is still capable of running parallel to moral ideas. However, it must be noted that law is not automatically a morally good object, and can even be immoral in certain situations. This conflict forces individuals to decide whether law or morality imposes a greater obligation upon them when they decide how to conduct themselves. Furthermore, for legal rules to be stable and effective, the rules must be obeyed and seen as authoritative for reasons other than punishment.

Hart’s Separation Thesis asserts that in the place of morality, that a legal system governed by rules that stretches beyond mere moral duties should take precedent. These legal rules provide rights for the individuals in society, yet are not required to be morally good. There may be rules which work against what we consider to be just, but are rules nonetheless because they are enforced by a society that reinforces and perpetuates them.

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 exist to regulate people and their behavior. Hart would say that the moral aspect of this case ties to the “ought” claims of law, due to the fact that denying an individual compensation for a wrong committed to them may not necessarily be seen as having positive moral content.

Rule Governed Practice
Vicarious Liability shows the characterization of law as a "Rule Governed Practice" which creates regulations, claims and guidelines regarding how people must act in any given scenario. The terms of the rule governed practice are principles of justice that are solidified throughout the body of law. The tort of Vicarious Liability would be seen by Hart as just one of the many rules which dictate how society is structured,and who gets certain rights, duties, and responsibilities.

This system must rely on the Rule of Recognition in order to operate properly. People must obey these rules due to their intrinsic value. Vicarious Liability and Tort law as a whole must be able to stand on its own and operate as an effective authority, and not as a mere instrument used to inflict punishments on people.

Tort Law & The "Penumbra"
Tort law allows people to observe the rule of recognition, and follow rules because they’re good, not merely out of a sense of obligation, or for fear of punishment. People must be able to see the law as something good in and of itself, that can exist in the stable long-term without losing its power or allowing people to become complacent about it. The idea of a good law is different than a law that is morally good. A good law can be followed by a person out of habit, and without any effort or strain to their lifestyle, since it is good and they are also good as a member of society.

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”. The idea of the penumbra comes from the study of astronomy where the penumbra is a partial shadow and the difference between complete illumination or a complete shadow. A law falls into the penumbra when a certain case is not completely covered by the settled core of meaning.

The terms of the rule-governed practice can be understood as principles of justice that provide guidance to the judges exercising their discretionary powers. To combat these hard cases where something falls into the penumbra, judges come up with a test to create consistent decisions. This ensures that the judge's final decision is consistent with other judicial holdings. Inconsistent decision making, or the imposition of personal morality on judgements is detrimental to the system of justice in the eyes of H.L.A Hart.

Application to the Case
E.B. v. Order of the Oblates refers to the Bazley test to determine whether the employer should be found vicariously liable. Although it may be seen that it was not moral 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 on employers who can clearly be shown to be in proximity to the harm that was caused.

Criticism of Hart
Fuller begins his critique of Hart’s argument by asserting that morality is inherently present in the law. Law is accepted because it is perceived as moral, not simply lawful in a separate sense. Fuller also posits that the law has an inner morality in its purpose, which involves a rational, logical justification. If a law is not moral, and does not produce order, then it is no longer law. This was the problem with Nazi law, which was not law as it ought to be morally, and therefore it was problematic.

According to Fuller, Immoral laws cannot be explained by Hart’s Separation Thesis. There is no solution to how one should balance a duty to obey the law, with a moral duty to disobey immoral laws. Fuller criticizes the lack of a proper answer provided by the Separation Thesis as to the proper reaction. Fuller also addressed the idea of the Penumbra, in that judges who decide hard cases will almost always resort to an external idea of morality in order to determine the outcome of a hard case.

Application to Case
With regard to Fuller’s position on law and morals, tort law lays out a situation to dissect cases and determine the wrong that was caused. Fuller would 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 because the application of the Bazley test was not broad enough to compensate the victim, and arguably accomplish the most good.