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

HLA Hart & Lon Fuller

Separation Theory
Under 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 some situations. This conflict forces individuals to decide whether law or morality creates the greater obligation when they decide how to conduct themselves. Law as it is now 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 of the case ties to the “ought” claims of law. This clearly shows the characterization of law as a "Rule Governed Practice" which creates regualations, claims and guidelines regarding how people must act in any given scenario. The tort of Vicarious Liability would be seen by Hart as just one of the many rules which didctate 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
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. People must be able to see the law as something good in and of itself, that can exist stably in the long-term without losing its power or allowing people to become complacent about it. 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”. 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. Judges must rely on the Terms of the Rule Governed Practice when exercising their discretionary powers. This ensures that the judge's final decision is consistent with other judicial holdings. Inconsistent decsion making, or the imposition of personality morality on judgements is detrimental to the system of justice in the eyes of H.L.A Hart.

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 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.

Lon Fuller
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.