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

Fuller and Hart’s Conversation

While Hart considers law and morality to be separate systems that are governed by two sets of rules, Fuller believes this separation is artificial. Fuller rejects the notion that individuals can choose whether to follow laws in instances where they may be too evil to be obeyed because it is arbitrary and personalised and fails to provide individuals with guidance. Fuller criticizes the Positivist definitions of law because they are insufficient and confusing; moreover, the Positivists fail to explain what morality is and Hart suggests that it is potentially dangerous as a source of law. Fuller advances that this approach ignores the inner morality of law because it fails to differentiate between evil and good aims by suggesting that the former is as coherent and informed by inner logic as the latter.

The Morality of Law

According to Fuller, morality is an essential component of law. He rejects that law’s authority is based on acceptance of the law as valid and on the lawmakers’ recognition that they are obliged to enforce and obey the law. Fuller proposes that in order for society to accept legal rules, they must be grounded in external morality that is “independent of and prior to the law” and must produce good order. In addition, effective law possesses an inner morality because the nature of legal systems encompasses coherence, rationality, and consistency as well as the requirements of the law being known to the public and being capable of explanation. If a law lacks this inner morality it will not function as law; it is not bad law simply because of its evil ends, but because it abandoned the process of law. Fuller advances that rules fail to be law under the following circumstances: they are not general; they are not promulgated; they are retroactive; they cannot be understood; they do not remain relatively consistent over time; they cannot be obeyed because they require conduct beyond the abilities of those affected; they are contradictory; and there is disjunction between the laws as announced and their actual administration. Fuller finds Hart’s separation thesis insufficient with respect to addressing issues concerning immoral laws and hard cases. In regards to the former, the Positivists’ fail to provide a coherent theory of when one is permitted to disobey an immoral law based on a moral duty and the position that some laws are so immoral that one need not follow them is no answer at all. With respect to the latter, Fuller proposes that there is no “core of settled meaning” (and, thus, no penumbra) because context and purpose are employed to interpret laws. Further, Fuller advances that the judge’s role is to examine the purpose of the rule and the good it was aimed at achieving by considering external morality along with law’s inner morality. Judges partake in a collaborative effort that is informed by their fidelity to law which focuses on making law what it ought to be.

Application to PHS  Legal positivist theory can be demonstrated in the “hard case” of PHS. Hart would suggest that the overlapping CDSA legislation, the exemption, and the Charter represent the eclipsing elements of the penumbra. The CDSA does not fully address the issue of Insite allowing safe injection of illegal drugs therefore leaving open gaps for the exemption and for the Charter. This ultimate creates a “haze” around the primary rule or federal legislation. Conversely, Fuller would argue that the circumstances in PHS do not suggest a penumbra exists because the CDSA must be interpreted in order to serve it’s intended purpose: the good it seeks to achieve is in controlling the harms associated with illegal substances. To the degree that CDSA reflects the internal morality of the law, it will be highly functional, but where it is less functional, it is not reflecting these principles. The court notes that the Minister’s refusal to grant Insite an exemption under s.56 of CDSA directly conflicts with the principles of fundamental justice (at para. 127). In this case there are clearly competing purposes, challenging the functionality of the CDSA and thus supporting Hart’s theory that a penumbra exists. The CDSA may not be “bad law” merely because it deprives Insite staff and clients of their individual Charter rights, but because it abandoned the process of law, which requires compliance with the principles of fundamental justice, and therefore the inner morality of law. In viewing the complex nature of the case, both positivist’s approaches underline the importance of the judge’s role in determining the PHS case.

In PHS, the judges draw from the Charter to guide their decision. Hart would agree that a hard case with factual elements falling outside the core should be decided, such as the judges did here, by rule-governed practice. The court’s application of s.7 demonstrates Hart’s approach, whereby CDSA - the legal rule - is evaluated with reference to the Charter, the source of moral rules.

In this supposed clash between the separate moral and legal rules, Fuller would not find Hart’s analysis of PHS provides sufficient guidance for the court. Instead he would look at how the law is informed by external morality. According to Fuller, society’s disapproval of illegal drug use is an external factor, which is recognized and ultimately embodied in the Criminal Code. Based on Fuller’s ‘8 ways to fail to make a law’, Fuller would support the judge’s finding that CDSA is ‘good’ or valid law. Ultimately, he would argue there must be social acceptance of legal rules, such as CDSA, on moral grounding because law’s authority is based on the acceptance of law as being valid.

On the facts of the case, the benefits that Insite provides for injection drug users shifts the view towards the exemption provided by s.56 of CDSA where the law may be deemed not applicable if it is “necessary for a medical or scientific purpose or otherwise in the public interest” (at para. 39). This provision exemplifies the special role that legal positivism has attributed to adjudication. The court makes it a rule to have the Minister grant an exemption where the decision not would not comply with the principles of the law.

Navigate to Other Legal Theories

Theory	Philosopher
Natural Law	Thomas Aquinas
Positivism	John Austin
Separation Thesis	Example
System of Rights	Ronald Dworkin
Liberty & Paternalism	Example
Law As Efficiency	Adam Smith
Feminist Jurisprudence	Example