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

Separation Thesis: H.L.A. Hart

HLA Hart

While law and morality may parallel one another, they are not the same thing, as stated in the natural law theory. HLA Hart contends that they are two different systems, but morality can be used to assess whether a law should be followed or not. There is a balancing between law being a legal rule that ought to be followed and the morality of the law. In certain cases, Hart demonstrates that sometimes a law may be completely valid and effective, but too evil or immoral for people to follow. He points to the case of the laws enacted within the Nazi regime as an example of this. Hart develops the idea of the “Rule of Recognition”, which states that for laws to be operative they must be established within a legal system and followed by some people in society for reasons other than that they would be punished for disobeying them. These reasons could be because the law is good, that people would not be serving their own self-interest if they did not follow them, or that they are simply in the habit of always following the rules.

Harts states that for a law to be valid law, it must abide by two sets of rules. The primary rules being that a law should tell us what we can and can’t do. The secondary rules are that there must be rules that govern the system that develops the laws. This, he claims, is law as a ‘rule governed practice’. The laws have ‘ought to’ claims that apply to those in society, which are similar to neutral rules in sport (he compares it to the rules in baseball). These rules develop duties between people, as well as grant them rights in certain situations. The principles of justice established within a rule governed practice are made a part of the law, but can also be subject to change as things change within the system and the surrounding society.

Hart also introduces a term called ‘the penumbra’. To explain this, he begins with the notion that laws have a settled core of meaning, since laws can be expressed in general terms. But the facts of certain cases may not fall within this settled core. It is then considered to be in the penumbra. When judges are looking to decide these penumbra cases, they need to look to the terms of the rule governed practice which establishes their laws. In this way, when they are making their decision and filling in the gaps of the law, they are using the same set of principles used to develop laws in the first place. This removes any possibility of a judge letting their own personal morality or preference affect the judgement.

H.L.A. Hart has some criticisms of both natural law and positivism. In regards to natural law, Hart feels that not all law must be moral, and that even morally neutral or immoral laws can still be valid law. This also lends itself to Hart's criticism of positivism. As stated earlier, Hart states that there are certain times when laws are so immoral they should be disobeyed. As well, he believes that the sovereign is a part of the legal system and therefore should be subject to the law.

Application to K.L.B. v. B.C.

Limitation Act

Hart would likely find that the application of the Limitation Act would fall within the settled core of the law. The provisions within the Limitations Act have settled meanings, and not fall within the penumbra cases. Accordingly the judges were not required to fill in any "gaps", of uncertainty. The application of the Act to the present case would be considered to be an easy case. The Act directly applied to the circumstances of the case. The Limitation Act can be seen as containing both moral and immoral values, depending on whether the individual is the claimant or defendant. Hart would find no issue with this double aspect, because the Act was enacted for legal purposes, but with tolerable moral overlap.

Protection of Children Act

Similar to the Limitation Act, Hart would find this to be an easy case, and not fall within the penumbra. The act was enacted to promote the utility of society. It is in society's best interest to have children mature into valuable contributing citizens within their community. Hart would find the moral aspect of this law was produced as a result of society assessing this law from a moral perspective. Hart would find this overlap to be acceptable as the law was brought about through the legal rule governed practice.

Negligence Law

Hart would find the negligence laws to have unsettled meanings, therefore this would be a penumbra case. As a result of this penumbra the judges were required to fill in gaps. Hart would find judges using the principles of negligence to be filling the gap in the law regarding regulating reasonable conduct within society. Accordingly, while Hart would not find negligence on its own to be valid law, he would find that its principles should be used to fill the evident gaps in the law. It would appear that Hart would find that in order to turn negligence in to potentially valid law, a first step would be parliament to legislate the principles. This would give negligence more of a legal grounding. However the validity according to Hart may still be negated by focusing on the purpose of negligence. Negligence law was brought about for the purpose of shifting the loss from the victim to the wrongdoer. Accordingly Hart would find this to be brought about through moral principles rather than legal principles. Therefore, Hart would not accept this law.

Decision of the SCC

While negligence would not be found to be a properly valid law, it would appear that it was appropriate for the judges to utilize the principles of negligence to fill in the gaps in the law. However, it would appear that Hart would agree with the decision of the court to override negligence principles with the valid Limitation Act. Hart would favour the decision to apply the Limitation Act restrictions over the principles of negligence, as this would display a legally based decision rather than a moral one.

Noted earlier; Hart would disagree with natural law's assessment that the decision was made in order to achieve the common good, as this would be too morally based.

Morality of Law: Lon Fuller

Lon L. Fuller

A major critic of HLA Hart was Lon Fuller who developed his own theory known as the morality of law. Fuller does not hold the same belief as Hart, that law and morality are separate. Instead, he suggests that the two cannot exists without one another, and that morality is a crucial part of the law. He does not believe in there being a settled core of law and disregards the concept of the penumbra.

The legal system must also have an “inner morality” that is coherent, consistent, rational, and easily explainable. Without adhering to an inner morality, a legal system will not be effective in producing order. Fuller argues that the positivist (Hart) definition of morality is never fully laid out, and that their ‘spectre’ of immoral morality ignores the idea of the inner morality of law. It does so by assuming that “evil aims have as much coherence and inner logic as good ones”. Hart continually uses Nazi Germany as an example in his discussion, but Fuller contends that the distinction between good and bad laws will not always be so clear. The positivist theory does not give someone in that situation an explanation of what to do. As for the core and penumbra, Fuller believes that there is no settled core of meaning, but that laws are constantly being interpreted with the purpose of law in mind, and that is what is being used to decide hard cases. Without there being a settled core of meaning, there can be no penumbra.

Fuller also outlines his 8 ways to make law fail. He illustrates these through a narrative called "Rex's Story".

8 ways to make law fail

1. When decisions are ad hoc – arbitrary and random
2. Where rules are not public, knowable
3. The abuse of retroactive legislation
4. Where rules are not understandable
5. Where rules are contradictory
6. Where rules cannot be obeyed (obeying them beyond person’s ability)
7. Very frequent changing of rules (so person cannot orient their behaviour by them)
8. Disjunction between rules as rules and rules as actually administered by judges

Protection of Children Act

Contrary to Hart, Fuller would find the Protection of Children Act was entirely brought about for moral purposes. Fuller would not find this to be a overlap. Fuller would further find the Protection of Children Act to be valid law as a result of the inner morality of the law. Fuller would find the Protection of the Children Act should be interpreted in light of its purpose, to protect children. This is a evidently moral purpose. The community would recognize the protection of children as having a moral base and would according follow the law.

Limitations Act

Fuller would find the Limitation Act was brought about to protect the defendant from disadvantage. Accordingly Fuller would find this to be a predominately moral purpose. Fuller would find the inner morality of the Limitations Act to be evident, the law is clear, concise, explainable and rational. The Limitation Act clearly states the time constraints upon bringing action. Additionally, the external morality of the Limitations Act comes from recognition of both parties. Therefore, Fuller would find society would recognize this value and obey the law.

Negligence Law

The purpose of negligence laws is to prevent harm to others and deter negligent conduct. Fuller would also find the negligence law to have inner morality. Society would recognize the moral values of negligence law and obey this law. Thus, Fuller would find the negligence law has both inner and external morality and is valid law.

Decision of the SCC

Fuller found the court must be loyal to the law. In the present case, the court appears to have adhered to the requirement that legislation must override common law principles such as negligence. Further the judges establishing that the Limitation Act must bar liability, displays the judges interpretation of how the law ought to be. In reference to external morality, the judges decision displays their belief that society would find their judgement to be morally appropriate. Accordingly society would feel obligated to follow it. In addition Fuller would also support the decision to follow the Limitation Act as it has the underlying moral purpose of protecting the defendant.

It would appear that while Fuller would agree with both Hart and natural law that the decision of the court was valid, he would however disagree with Hart reasoning. Fuller would agree with natural law with notion that the courts based their decision on a moral element rather than a strictly legal. However in contrast to natural law, Fuller would not restrict the moral feature to achieving the common good. Fuller would largely disagree with Hart in regards to the reasoning of the court. While Hart would find that the judges made their decision to follow the Limitation Act due to its legal validity, and then morality was used to gauge it. Fuller would find that the decision was routed in the morality of protecting the defendant.