View source for Course:Law3020/2014WT1/Group U/Separation Thesis

= The Separation Thesis =

	H.L.A Hart, a legal positivist, makes the assertion that there is no connection between law and morality; they are two separate systems. Law and morality run parallel to one another. Hart states that when there is a clash between moral values and law, it is up to individuals to decide whether we should follow that law or ignore it. Individuals will come to this conclusion by deciding whether the obligation to follow moral values is higher. If a law cannot add to the common good of society, it is then not considered to be law and it should not be followed. 
	Hart says law must be analyzed in accordance to what it ought to be, as opposed to what it is. In order to find out what law ought to be, we must look at the rule governed practices and also at the rule of recognition. The rule of recognition states that a law will be justifiable if those who create the law truly believe it to be the law. 



=== Role of Judges === 

	Judges play a special role of law making under Hart’s theory of law. Legal rules, both legislation and common law, need to be expressed in general terms so that they can apply to society in the same way. Within these rules, there will be a settled core of meaning and in some cases, the factual situations presented in the case may fall outside this settle meaning. Hart calls this the ‘penumbra’. The cases that fall in this ‘penumbra’ are what Hart refers to as the hard cases. It is within these hard cases that judges decide whether that specific case falls within the settled core of meaning. In order to do this, the judges must interpret the laws and fill in the gaps. In order to create consistency for the judges when interpreting laws in the penumbra, Hart states that law must be understood in terms of the rule-governed practice that give rise to them. The rule governed practice is the legal system as a whole.

= Lon Fuller =

Lon Fuller was a supporter of Natural law. Lon Fuller was a critic of HLA Hart and believed that morality did play a role in the law. First there was the external morality, which was a belief that they will produce good order. Second there is the internal morality of the law. The internal morality of the law focuses on several points, which could potentially make a law fail. These are when decisions are ad hoc; where rules are not public, knowable; the abuse of retroactive legislation; where rules are not understandable; where rules are contradictory; where rules cannot be obeyed (obeying them beyond person’s ability); very frequent changing of rules (so person cannot orient their behaviour by them); and disjunction between rules, and rules as actually administered. If the laws fail either of the aspects of morality, external or internal then they cannot be considered Law. 
The role judges play is a role of interpretation. Judges should look to the purpose of the law and the good it is to accomplish. If the case is difficult the judges will generally be looking at the competing purposes in play. 
In the case of [https://www.canlii.org/en/ca/scc/doc/2001/2001scc31/2001scc31.html?searchUrlHash=AAAAAQBGJydUcmluaXR5IFdlc3Rlcm4gVW5pdmVyc2l0eSB2LiBCcml0aXNoIENvbHVtYmlhIENvbGxlZ2Ugb2YgVGVhY2hlcnMnJwAAAAAB ''Trinity Western University v. British Columbia College of Teachers''] <ref>''Trinity Western University v. British Columbia College of Teachers'', 2001 SCC 31 at para 2 and 28, [2001] 1 SCR 772, </ref> (''Trinity Western University'') Lon Fuller would be most interested in s. 4 of the Teaching Profession Act, Responsibilities of Membership in the Community of Trinity Western University, and the judgment made by the majority of the court. 

== S. 4 of the Teaching Profession Act ==

S. 4 of the ''Teaching Profession Act'' is the authority British Columbia College of Teachers used in preventing Trinity Western University from having their teaching program based on discrimination. The prevention of discrimination produces order as it makes individuals equals within society. Although the prevention of discrimination may not have been the main purpose of the legislation the prevention of discrimination is arguably the main purpose of the legislation in this situation <ref>''Ibid'' at para 14</ref>. Therefore the external morality of s. 4 of the ''Teaching Profession Act'' is the prevention of discrimination. 

The internal morality of the legislation is brought into question due to an inability to understand the law. According to Lon Fuller clarity in the law is important; a rule will not be considered a law if it is not understandable. The ''Teaching Profession Act'' is potentially not understandable due to the courts need to interpret it. In ''Trinity Western University'' the court interpreted whether the British Columbia College of Teachers had the authority to prevent Trinity Western University from running its teaching program on the grounds of discrimination. However, the Supreme Court of Canada was able to deduce that the ''Teaching Profession Act'' did allow British Columbia College of Teachers to consider discrimination in the Trinity Western University application <ref>''Ibid'' at para 14</ref>. As the courts were able to interpret the law in regards to its purpose the understandability of the law is not at issue.  Therefore s. 4 of the ''Teaching Profession Act'' is a valid moral law. 

== Responsibilities of Membership in the Community of Trinity Western University ==

The Responsibilities of Membership in the Community of Trinity Western University ("Community Standards") is arguably to produce good order. The reason for this is that the "Community Standard" promotes behaviour that follows similar morals to the Christian belief of preventing drunkenness, ect. At issue in this case however, is the rule requiring students and employees to not practicing homosexual behaviour. In the case of the " Community Standard" the freedom of religion to enhance public order is the proposed external morality. This is best explained by Canadians belief that it is important to let individuals discriminate to allow for a “wide variety of beliefs, diversity of tastes and pursuits customs and codes of conduct” <ref>''Ibid'' at para 28</ref>. This justifies the external morality used. Also the "Community Standards" satisfies all of Lon Fuller’s internal morality conditions. Therefore, the "Community Standard" is valid law. The issue of jurisdiction and valid law makers is not discussed by Lon Fuller.

== Majority Decision by the Judges ==

Lon Fuller would consider ''Trinity Western University'' a hard case for a judge to decide upon. Both laws are valid according to Lon Fuller’s reasoning. The judges would then be required to decide which law’s purpose is more important. The majority of the Supreme Court of Canada in ''Trinity Western University'' decided in favour of freedom of religion <ref>''Ibid'' at para 46</ref>. Mostly on the grounds that considering discrimination outside of the application process without evidence of the said discrimination is not a justification <ref>''Ibid'' at para 44</ref>. In my opinion Lon Fuller would have came to the same conclusion. First the ''Charter'' must be read as a whole and neither freedom of religion or equality rights are absolute. Instead they are equal. This appears to be similar in Lon Fuller’s belief of the external morality. Instead reconciliation should be the goal of the judges. The purpose of s. 4 of the ''Teaching Profession Act'' was to prevent discrimination in the Trinity Western University application for a teachers program. It is not to make decisions that would not be explainable/ provable through the law. This is one of the internal moralities that can make a law invalid. Therefore to reconcile both the freedom of religion and equality something must be proposed to prevent further discrimination post degree but allow one to pursue their freedom of religion. The courts satisfied this by expressing the difference between having a belief and acting upon it <ref>''Ibid'' at para 37</ref>. It is for this reason that both freedom of religion and equality rights have been reconciled and the main purpose of both laws are satisfied.

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