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

Separation Theory
The Separation Thesis is a foundational conception of Legal Positivism by theorist H. L. A. Hart. This thesis, in its most basis meaning, predicates that Law and Morality are distinct from one another; hence the notion of “separation” underlying the view. Although the theory points to this separation between Law and Morality, Hart confers that they do run parallel to one another. Hart simply puts it that, “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (H.L.A. Hart, The Concept of Law (Oxford 1961, 2nd ed 1994) at p. 185, 186). In other words, it has often been the case that Morality and Law have tended towards similar ends, despite their conceptually different obligations.

The difference therein lies in that the law only compels a person to follow on an “ought to do” basis. This is not a duty with a greater purposeful end amounting to “goodness” or “rightness” as would be the case with morality; rather it is a duty that should be followed for a greater social function, like etiquette or rules that facilitate collaborative efforts. What sets these “laws” apart from other socially constructed rules, like custom or etiquette, is that they are established as part of a greater system – the Legal system, which applies collectively to everyone under its jurisdiction. The rules are not individually chosen and followed by preference. The Legal System operates under the Rule of Recognition, which a requires that Judges and Legislators recognize the laws and their authority, and adhere to them as prescribed in the collective belief they all have obligation to do this. Unlike Austin’s theory, this is not necessarily something that they do for fear of sanction, rather they do this for the stability and effectiveness of the system, and in the interests of converging and legitimizing their practices. Members of society in turn follow the laws in recognition that they are meant to collectively bind people as rules the settle the square.

With the separate camps of Morality and the Law carrying on in co-existence, they may inevitably fall in conflict with one another. When a person is presented with a decision of whether to follow a law, and their moral compass tells them that such a law would be too “evil” to obey in those circumstances, Hart would say that person is facing the penumbra (A positivist would say you don’t need to follow an evil law). The penumbra, is an obscurity or uncertainty which occurs when a factual situation falls outside of the settled core or meaning of the legal rule. The penumbra, literally meaning partial shadow or eclipse, represents the gray areas in the law that arise in hard cases. A judge will be burdened to determine whether a particular set of facts falls within the settled core of meaning of a legal rule, and what the law ought to be. In this cases, judges may apply moral rules to fill in these grey areas leading to confluence between the law and morality, but not with inconsistent discretion; or mere personal morality. They must draw from the “terms of the rule-governed practice” that gave rise to the laws; principles which are true or consistent in the context of the legal system. Basically, it follows that judges should follow an accepted strategy and logic that is consistent to “find” the law, or the acceptable outcome.

Examples in Canada may include the Charter and the Fundamental Principles of Justice – ideas that as a general consensus are vital or fundamental to our society, including balance between interference of the state and individual freedoms. Terms of rule governed practice are generally broad enough to be read into hard cases to determine a more acceptable outcome.

Criticisms of Separation Theory:

Lon Fuller sets out a number of criticisms of Separation theory: It is his contention that society’s acceptance of rules is inevitably grounded in a form of external morality. The order or cooperation that the rules create is in essence “good”. Recognition appeals to moral standards of valuing others, rather than just the law in itself.

The law also has an inner morality of keeping certain principles of law effective. Essentially, the legal system follows an ideal – it creates justice and avoids disorder. To be effective in doing this it must conform to internal values like rationality, consistency and coherency. Without them, law ceases to function as it should and sinks into a form of corruption.

Fuller also suggest that separation theory and legal positivism don’t address immoral laws. He suggest that there isn’t a coherent idea of when one should follow a law or chose not to when he finds it immoral. In his view, there is no answer to the greater conceptual problem of balancing the two. Critics of the Separation theory have gone as far to say that the lack of distinction and the sharp separation leads to dictatorship regimes like that of Nazi Germany.

Lastly, Fuller does not find the reasons under positivist theory of what obliges people to follow laws as adequate. Fuller suggest that the rational element of coming to logical decisions is in effect an attempt at directing those decisions towards what is "right" or "good".