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

Separation Thesis and the Morality of Law

HLA Hart's Separation Theory

H.L.A. Hart is a modern legal positivist. He believes that morality and law are separate systems. While Hart believes that the two can run parallel, they are still two distinct entities. Laws have “ought claims” which try to tell the public that we “ought to follow” them. Laws do not need to be moral in order to be valid. Instead, Hart asserts that valid laws should be understood in terms of the rule-governed practice.

What is the rule governed practice? It is the legal system as a whole. There are principals that run through the entire body of law and the legal system itself. This “rule governed practice” is what leads to consistent decision making in the penumbra cases. Penumbra cases are those “hard cases” which fall to the judge to decide whether the case falls within in a settled core meaning. Judges are obliged to conform to this rule and in doing so, formulate patterns that can be relied upon.

Lon Fuller’s Critique of Hart’s Theory

Lon Fuller has an opposite view when compared to H.L.A Hart. He believes that separating morality and law is not possible. Fuller’s argument has four main points. First, he believes that social acceptance of legal rules depends on grounding in external morality. Second, Fuller believes that law itself has an inner morality. Third, he argues that positivists cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to obey immoral laws. Positivists, also, cannot provide a coherent theory of when one is obliged to follow one over the other. Lastly, Fuller criticises the “core” and “penumbra” theory of judicial interpretation. He says there is not settled core meaning and therefore no penumbra. He believes that laws are always interpreted in context and with reference to the purpose of the “rule” and the good it was to accomplish.

Application to Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28

As previously mentioned, Hart believed that morality should be a separate concern. In Granovsky, a contributor felt he was discriminated against because he was treated differently than fully disabled workers. Hart would say that the rule in question, which says that only those who contribute to a plan can benefit from it, has nothing to do with dignity or morality. The system was set up to provide for contributors who cannot work and need support (such as the fully disabled). The rule in question in this case allows this to occur. H.L.A Hart would say that the rule governed practice is objective and about the end aspect of protecting the people that actually need help.

However, sometimes there may be overlap between the law and morality. The Canadian Pension Plan does overlap with a moral good. The plan is supposed to help the people which need it most. It was created with special provision so people in need could benefit from it. The set up of the plan allows for this. Hart would argue that while this looks like morality attached to the law it is actually just a natural consequence of following the proper order.

The drop out provision in question here has nothing to do with morality. Neither does Section 15 of the Charter. Both of these provisions allow for good governance. In the case of the drop out provision, it allows rectify potential problems which certain contributors may face. Hart would also say that Granovsky should have followed the rule set out in the CPP. As Hart said, laws have “ought claims” and the public ought to follow them.

An interesting point arises in this case because Granovksy had the choice to take part in this CPP program. He did not need to contribute; he had the option of contributing. The rule of recognition says that if a rule is recognized by people it will be valid. Granovsky bought into the plan; therefore he must have thought that it was a valid law.

Fuller, on the other hand, did not have the same views as H.L.A Hart. However, it is likely that he too would have reached a similar conclusion regarding the law in question, as well as the decision. Fuller would argue that the CPP exists as a program due to the inner morality aspect. An inner morality guided Parliament to include certain provisions. The purpose of the drop out provision was to help people who may have problems with making the required contributions to the aggregate fund. This law is moral and good within itself.