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

File:H.L.A. Hart

The Separation Thesis and the Morality of Law

Separation Thesis

H.L.A. Hart viewed law and morality as separate rule governed systems that should not be conflated. Referred to as the "Separation Thesis," this allows for criticizing immoral laws and unjust legal systems through outright disobedience of the laws. Law and morality give rise to different rights and obligations. At the heart of the Separation Thesis is a question of what exactly to do when law and morality clash. Moral obligations may inevitably fall in conflict with legal obligations and at this point, a decision can be made to determine which obligations outweigh the other. If a law is viewed as unjust, it will remain a law but a moral obligation to disobey can be claimed. For Hart, individuals need to decide whether the obligation to follow the moral rule is greater than the legal obligation and if this is the case, the law does not need to be obeyed. In response to Hart’s Separation Thesis, Lon Fuller’s criticism is that the separation doesn’t provide guidance to people as to when a law is valid or when it needs to be followed. Rather, the separation thesis delegates this issue to the individual conscience of people.

Hart understands that law requires some quality that will make it a law beyond mere formality. Fuller’s response to the separation thesis is that this quality is morality but Hart resists the claim and provides the concept of an “ought claim.” Individuals recognize laws as rules that they ought to follow. What makes legal rules special is that they are not individually chosen. They are special because they are backed up by a legal system and the legal rules are also distinct because they must be rooted in the rule of recognition. The "rule of recognition" is that individuals view the rules as both valid and right, thus providing a sense of validity to others who follow them. Legal rules need to be obeyed, not by everybody but by most, for reasons other than being scared of the punishment for not following. The problem with the “ought claim” is that it can create a situation of uncertainty around the law and its application, what Hart understood as problems of "the penumbra.”

Problems of the penumbra arise in hard cases. When it falls to a judge to determine whether a particular factual case falls within the settled core of meaning of a legal rule. What the law ought to be in these hard cases is left for judges to decide. Hart resists Fuller’s claim that judges use morality to fill in the gaps and instead provides that the judge’s will decide by drawing on the rule-governed practice. Factors that comprise the rule-governed practice in a modern setting could include the Charter, in particular s. 7, as well as natural procedural justice principles such as the impartiality and objectivity of the law and the principles of fundamental justice. The rule-governed practice provides consistency to the law according to Hart.

Fuller’s Critique

Lon Fuller viewed law and morality as principles that go hand in hand. Fuller’s critique begins with the argument that the acceptance of legal rules must be grounded in morality; that law laws must have moral component to ensure that they produce not just order, but good order. He respond’s to Hart’s rule of recognition is that the recognition results from morality, that individuals follow the law because it will produce good order and is a good thing. Second is Fuller’s point that there is an inner morality to the law. In order to make effective law, the lawmaker must conform to certain requirements that ensure the law he produces is moral. Inner morality ensures that a law will retain its ability of being recognized by individuals. Third, there is an obligation to obey the law and the separation thesis doesn’t provide an adequate reason as to why laws are obeyed. Fourth, Fuller critiques Hart’s idea of the core of settled meaning and the penumbra. Fuller argues that there is no core of settled meaning and that in penumbra cases, law will be interpreted in context with reference to the “good” the law was to accomplish.

Application to A.C. v Manitoba

This case would fall under Hart’s conception of the penumbra. It is a hard case where the law doesn’t quite apply to the factual case with ease. The law in question is the Manitoba Child and Family Services Act. In this legislation, s. 25(8) allows the court to authorize treatment that it considers to be in the child’s best interest. Section 25(9) of the Act presumes that the best interests of a child 16 or over would be promoted by allowing the child’s views to be determinative, unless it can be shown that the child does not understand the decision or its consequences. These sections create a penumbra case for children under the age of 16. The child under 16 can very likely understand both the decision and the consequences of their decision regarding a medical condition but courts have the power to authorize medical treatment in the child’s best interest. The case at hand was appealed to the Supreme Court of Canada where the appeal was dismissed and sections 25(8) and 25(9) of the Act were determined constitutional.

In A.C. v Manitoba, “C” made a personal decision to not receive blood under any circumstance. The legal obligation in “C’s” decision was to conduct the blood transfer because society values life and thus the law reflected that courts have the authority to authorize treatment for those under age 16. “C’s” moral obligation to her religion of being a Jehovah’s Witness outweighed the legal obligation. The question is when moral obligations conflict with legal obligations, whether the law could be disobeyed. The answer for Hart would be that law could be disobeyed. Hart understands that legal rules need to be obeyed to provide legitimacy to them, calling this the rule of recognition. The exception is that legal rules do not necessarily need to be followed by everybody, just by a majority of individuals. Hart also understood that when there is uncertainty around the law and its application, problems of the penumbra would arise.

Hart would view the situation in this case as being a problem of the penumbra, a hard case. The law doesn’t quite apply to the case of “C” and the “ought claim” of the law was to be determined by judges. Hart’s separation thesis regards law and morality as being separate rule governed systems. For Hart, applying morality to fill in the gaps wouldn’t solve this hard case. A solution based on morality, such as it being moral for a child not to have to end its life prematurely, is not the correct way to solve a hard case. Rather, an application of the rule-governed practice would lead to a consistent result in determining what the law ought to be.

The rule-governed practice could involve applying the Charter or principles of fundamental justice. Section 7 of the Charter is relevant to “C’s” decision for choosing against receiving blood. Section 7 states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The argument posed by “C” was that the courts deprived her right to life, liberty, and security of the person when her decision to forgo medical treatment wasn’t treated as determinative. For Hart, the argument that the judges specifically infringed on “C’s” right to decide on the medical treatment of her choosing would not hold as he would understand the forward looking nature of the decision. The judges choose to fill the gap in the law by taking a general approach as to how to deal with problems where children are below the age of 16 and required to make life-altering decisions. The approach was a best interests approach that factored in the risks and benefits of the medical treatment, the child’s intellectual capacity and ability to understand the information necessary to make an informed decision, any emotional or psychiatric vulnerabilities of the child, and whether the views of the child are a true reflection of core values and beliefs. The law ought to protect the health and safety of all children and in this case, that would only be possible if the interests of the child were not determinative. Instead, the court was authorized to make a best interests decision on behalf of the children because the constitutionality of sections 25(8) and 25(9) of the Act was upheld.

Lon Fuller’s views regarding law and morality as going hand in hand would produce an outcome similar to that of Hart’s. This is because for Hart, law and morality may be separate but law does not supplant morality. Fuller’s argument is that some judges do apply morality to fill in the gap in hard cases of the penumbra. In the case of “C”, the judges had to fill in the gap left by the Manitoba Child and Family Services Act. Fuller would say that it is immoral for a child to have to end its life prematurely because of a religious belief. This would produce not just order, but good order. The good order being the value society places on the life of children. Furthermore, the law in question is viewed as having an inner morality to it. It is argued that children under age 16 lack the mental capabilities to make decisions regarding life and death. The Act understands this and ensures that in order to protect the life of children, decisions are made on behalf of the children. Furthermore, Fuller understands the obligation to obey the law because of the “good” it sets out to accomplish. In the case of “C”, the law conflicts with her religious views but in its general application, the law ensures that vulnerable children are protected from making difficult decisions.