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

The Separation Thesis

HLA Hart

HLA Hart was a proponent of legal positivism with his Separation thesis. Hart, sees morality as “an independent normative standard for regulating and criticizing our own and others’ behaviour,” he finds that law and morality are not connected. It is possible, and rather likely, that the law and morality will run parallel to one another. There is, however, no presumption that the law embodies morality. According to Hart, if these two ideas do run contrary to each other we have a decision to make—do we follow morality or the law? The law as a system of rules is incomplete and terms can have a “penumbra” meaning their definition is unclear. Hart concluded that when one is confronted by a morally bad law, to let the conscience decide, unhampered by a connection between law and morality. He thought that certain laws might be too evil to be obeyed. Examining penumbral cases, they should be decided with regards to social aims. This decision becomes more difficult in the event that they become starkly contrasted.

For Hart, the legal system hinges on a rule governed practice. A law must have an “ought to” claim—one should follow the law because they “ought to”. We follow laws because they are universally recognized, not because we are morally compelled to. Judges are critical in Hart’s view of the legal system. Judges take the peculiarities of a case into account because both legislation and the law are expressed in general terms. Rules must apply generally in order to be practical. There is a “settled core of meaning” in which most factual situations fit. Under these circumstances the law and the facts correlate and are well settled. Outside of this, is a penumbra case where the judge’s role becomes evident. A judge decides where the case lies and how the law applies. This concept is highly contested by Fuller.

Application to the Case

The case before the Supreme court in Chaoulli v. Quebec is clearly a penumbra case. In this case the Supreme Court found the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms. The Supreme Court rendered three separate written decisions.

Deschamps identifies the issue in this case as whether the prohibition is “justified by the need to preserve the integrity of the public system” but did not question the single-tier system itself. She warns against politicizing the issue and rejects the appeal court’s characterization of an infringement of an economic right. Deschamps comments that long wait times at hospitals can result in the death of patients and that the prohibited private health care could save lives. She sees wait lists as a form of rationing and it is this policy that is being challenged as a violation of the Canadian Charter right to security of person and the quebec charter right of personal inviolability. Deschamps finds this is a violation of section 7 of the charter and section 1 of the Quebec charter.

In the second decision, both McLachlin and Major agree with Deschamp’s reasons and reach the same outcome, however, they rely more on section 1 and section 7 of the Canadian Charter to do so. They observe the “Charter does not confer a freestanding constitutional right to health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.” Hart would view this case through his positivist lens and would want to follow the rules. Language is critical in understanding his perspective because a law is not good or bad, it is valid, invalid, true, or false. Framing the law in this way poses a huge dilemma for your everyday citizen. If the law cannot address society’s concerns in these terms (good and bad) and does not consider moral implications, it falls short of meeting the needs of the citizenry. Society makes value judgements on the law and the services received from the government using a moral lens which makes assessing it difficult if morality is separate. This becomes a concern about the integrity of government and the legal system.

Binnie and LeBel consider whether Quebec has the constitutional authority to establish a comprehensive single-tier plan, but further to discourage a private sector tier by prohibiting the purchase and sale of private health insurance. They see the problem in this case as centred on public policy and social values which are beyond the mandate of the courts to decide. Hart would disagree with this approach as he believes the court is purposed with upholding public policy and social values. He would argue that they should weigh the interests of both sides and reach a just conclusion.