Course:Law3020/2014WT1/Group R/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. However, laws are incapable of being 100% prospective, and a scenario will inevitably arise where it becomes unclear whether or not the law applies. These scenarios become known as the "hard" 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: the basic principles of justice. If judges successfully follow these principles, the concluding judgement will be one of an "amoral" nature. Now, "amoral" is not to be confused with "immoral". An "amoral" decision is not a counter-moral conclusion, it is a decision divorced from morality; a decision founded entirely on the principles of law. Such a decision is possible under the "separation thesis" because of the belief that law is separate from morality.

, but the two concepts will inevitably overlap in certain cases Fuller on the other hand asserts an impossibility of divorcing morality of law.