Difference between revisions of "Course:Law3020/2014WT1/Group R/Separation Thesis"
| Line 2: | Line 2: | ||
== Hart's Separation Thesis == | == Hart's Separation Thesis == | ||
| − | The "separation thesis" is easily understood as the assertion that law and morality operate within two distinctly separate spheres. Essentially, legal rules exist independently from moral beliefs, but the two concepts will inevitably overlap in certain cases. These cases become known as the "penumbra" cases; cases where a legal decision needs to be made, and it becomes up to the judge's discretion | + | The "separation thesis" is easily understood as the assertion that law and morality operate within two distinctly separate spheres. Essentially, legal rules exist independently from moral beliefs, but the two concepts will inevitably overlap in certain cases. These cases become known as the "penumbra" cases; cases where a legal decision needs to be made, and it becomes up to the judge's discretion to decide what precisely is the "core" meaning of the law. But, how does a judge decide what falls inside or outside the core meaning of the law? This gap is the penumbra, an area where it is unclear if the particular case falls within the core of the law in which it is being tried. According to Hart, judges should fill the gap of the penumbra by considering the governing rules from which they arose, which are the basic principles of justice. If judges successfully follow these principles, the concluding judgement will be one of an "amoral" nature; a decision founded entirely on the principles of law, and unbiased by morality. |
| − | |||
[[File:Separation Thesis.png|center|Where the Penumbra Exists]] | [[File:Separation Thesis.png|center|Where the Penumbra Exists]] | ||
Revision as of 13:46, 15 February 2014
Hart's Separation Thesis
The "separation thesis" is easily understood as the assertion that law and morality operate within two distinctly separate spheres. Essentially, legal rules exist independently from moral beliefs, but the two concepts will inevitably overlap in certain cases. These cases become known as the "penumbra" cases; cases where a legal decision needs to be made, and it becomes up to the judge's discretion to decide what precisely is the "core" meaning of the law. But, how does a judge decide what falls inside or outside the core meaning of the law? This gap is the penumbra, an area where it is unclear if the particular case falls within the core of the law in which it is being tried. According to Hart, judges should fill the gap of the penumbra by considering the governing rules from which they arose, which are the basic principles of justice. If judges successfully follow these principles, the concluding judgement will be one of an "amoral" nature; a decision founded entirely on the principles of law, and unbiased by morality.
