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

• Bulleted list item The thing that makes legal rules special is they are not individually chosen.
• Bulleted list item Legal rules are special in that they are backed up by the legal system.
• Bulleted list item They must be rooted in the rule of recognition which dictates that in order for law to be valid, it must be recognized as such by the majority of society.
• Bulleted list item The players in the legal system have to recognize that they should enforce this law, they are bound to do so, and it is right to do so.
• Bulleted list item These rules need to be obeyed, and we need to obey them, for some reason other than punishment. We "ought to".
• Bulleted list item If we all stop buying into the law, then it will lose the inherent power of law.

Hart's Role for Judges

Judges in common law have the job of interpreting the law. However, some cases cannot be adjudicated effectively by simple applying a statute. Hart calls these complex cases a Penumbra. These Penumbra cases requires that judges be active in their application of the law. However, Hart refutes the Legal Realism theology that considers judge made law to be completely dependent on societal pressures and individual bias. Instead, Hart puts forth his notion of rule governed practice.

Rule Governed Practice It's the legal system as a whole. There are principals the run through the entire body of law and the legal system itself. The activity of this Rule Governed Practice is what actively leads to consistent decision making in the context of Penumbra cases. Judges are obliged to conform to this rule and in doing so, formulate patterns that can be relied upon. One plausible example of a rule governed practice in modern society would be the The Canadian Charter of Rights and Freedoms. More particularly, how the value of personal autonomy is at the forefront of judges reasoning.

Fuller's Critique

Lon Fuller is one of Hart's greatest theological adversaries. He questions the entire premise of the separation of law and morality. Fuller's main argument against Separation Theory is the law itself has an Inner-Morality. He was largely influenced by the presence and impact of Nazi Germany during WWII.

Fuller's Inner Morality

In order for laws to be law, they must conform to the coherent, rational, and consistent moral understanding possessed by the people. He contends that the problem with the Nazi law is that it didn't reflect the inner morality of the people. Fuller sees law a more that just an artifact, it has to have an inner quality that gives it life.

Fuller claims that Hart's theory doesn't have a clear definition of morality. Law cannot work as effective law unless is has moral characteristics.