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

Separation Thesis

Overview of Hart's Separation Theory

H.L.A. Hart is a modern legal positivist, and as such, believes that morality and law are completely separate. While morality and law can run parallel they are two distinct entities. The law does not need any intrinsic moral content.

However, Hart differs from the historical positivist theology. He says that the law needs some inner quality that distinguishes from other forms of rules. A special quality that has nothing to do with morality. Hart's answer this is his "ought to" analysis. That is, a law is elevated beyond a rule when it "ought to" have been adhered to.

Criteria for Hart's law

-The thing that makes legal rules special is they are not individually chosen. -Legal rules are special in that they are backed up by the legal system

-The must be rooted in the rule of recognition, in order to be valid as legal rules there has to be recognition as the majority of society -The validity of these rules come in least in part from us -The players in the legal system have to themselves recognize that they should enforce this law, they are bound to do so, it is right to do so, they in fact do so. -these rules need to be obeyed, and we need to obey them, for some reason other than punishment. Because for some reason we “ought to”. But this isn’t morality. -many people would follow the law because perhaps they recognize the legal system is a good system and should be followed -maybe just because of habit -also maybe long term self interest. -If we all stop buying into the rules, then they will lose their lawness.