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

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February 14 2014: Positivism (Hart v Fuller) The Separation Thesis: - Theory: o law and morality are separate! This is so that law can be o rejects natural law theory (that law lies within reality) o the penumbra: that of ‘hazy’ boundaries  but the judges use the rule governing principles o there are primary rules and secondary rules to the separation thesis:  Primary rules: • laws impose duties to whom they apply • function as a control as well as a standard for human behaviour • require certain actions or omissions  Secondary rules: • do not impose duties • private rules of change allow individuals to change their primary rights (wills, contracts, property, marriage) • public rules of change confer public power on individuals within the legal system, and indicate how new primary rules may be introduced and how existing rules may be altered - Hart’s rule of recognition (recognizing the law) claims that law’s authority is grounded on the acceptance of law as valid, and lawmaker’s recognition of themselves as obligated to enforce and obey the law

Khawaja is a case that would set outside of the penumbra  no precedent for the judges  relatively new legislation  the act by Khawaja wasn’t fully carried out (ie. the terrorist attack)  re: morality and the law are separate? - terrorism is seen as ‘wrong’ - the act of terrorism is immoral, Hart would say: that the morality aspect of terrorism laws is not relevant, but the law is necessary for the prohibition of the acts of terrorism. Fuller’s response: you cannot separate morality and the law….you cannot recognize and make the law if you do not recognize that it’s immoral to begin with. Terrorism (the act’s described in the Act?) are immoral - people need to believe that law and morality are intertwined – if people do not believe the law is moral, then they won’t follow the law. - within the Terrorism legislation, (83.01 (1)(b)(1)(A)), “causes death or serious bodily harm to a person by the use of violence” o our society view these actions as immoral, and so the citizens of society must believe these actions to be immoral in order to follow them. Fuller (negatives of legal positivism): influences people to make law for laws sake, without recognizing morality (ie. if terrorism was seen as moral, then if the laws were still in place, the laws would only be there for laws sake) - in application to our case, Khawaja is a response to recent situations in our world…. - if people believe that terrorism is a moral act, The actions by Khawaja weren’t actually to harm people, he was assisting in the actions of harming people. Is that immoral? Is it immoral only when it gets to the actual terrorist action? Or the actions leading up to terrorist acts? - ie. in the military, building and using detonators is seen as moral because it is a different context that they will be used. The Rex story: - laws need to be consistent – Terrorism laws within the Criminal Code are consistent – it defines and prohibits terrorist activity According to Hart, there are moral rules and legal rules, and if there is a clash, the obligations must be weighed (case-by-case) - in Khawaja, there is no clash, because the laws are moral. Hart’s separation thesis would not easily apply to this case – this case has morals and the law significantly intertwined.

Fuller’s argument that morality and law are inseparable is conducive to Khawaja  Three main planks in Fuller’s argument:  1. that social acceptance of legal rules depends on grounding in morality (external morality)- the belief that they will produce good order, not just order – Terrorism legislation is grounded in recognizing that terrorist actions are immoral.  2. law itself has an inner morality (requirements for effective law, functioning order- Rex’s story). If law stops embodying and furthering these rules of inner morality, it falls apart and cannot function anymore as law.  What is there was terrorism fighting the laws of Nazi Germany? Would this been seen as immoral or moral? To agree with Hart’s theory, they would be moral to fight against the Nazi Germany’s legal rule. This would be a clash….and there would need to be a decision whether to follow the legal or moral rules.  3. immoral laws cannot, actually be explained by the separation thesis- the separation thesis does not provide an adequate explanation for a general obligation to obey the law- is of no use in the dilemma of one struggling between duty to law, immoral/unjust laws. There is inadequate guidance for people! (and remember, this is just after Nazi Germany)  - this is true, individuals need to recognize terrorism as being immoral, in order to follow the laws  4. Criticises the “core” and “penumbra” theory of judicial interpretation- the judiciary has a duty to the law, a fidelity to the law, and so requires that law be interpreted in a way that is consistent with its purpose (the good the law is designed to serve), referring to both external and internal morality. They need to interpret the law in a way that shows that they are faithful to innerly moral law. - Fuller would agree that this is a case where the judges need to interpret to find the context of the law (a case-by-case basis). in reference to the purpose of the rule, and the good the law is meant to accomplish - needs to be supported by recognition