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

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Legal Separation Thesis and the Morality of Law

Theorist: H.L.A. Hart- Separation Thesis

H.L. Hart.JPG

The Theory:

  • Law and morality are separate systems.
  • A valid law depends upon the buy in of the public it governs, but also the buy in of the actors of the legal system such as judges, lawyers, police officers, etc.
    • If these actors do not enforce these laws and more importantly do not psychologically believe that they should be enforced, the laws will begin to lose what makes them laws, and instead become rules.

What Judges Do:

Laws are general in nature and have a “settled core meaning” that will cover the majority of facts arising in different cases. In circumstances where the law does not fully cover the facts that judges begin to play an active role. This is what it known as the penumbra."

The penumbra is like an eclipse. The facts of the case are like the sun, and the law is the moon.

For the cases found in the penumbra, judges do not apply their own moral standard and instead use “terms of the rule governed practice.” (as opposed to John Austin who believes that judges are just the mere implementers of law and get their power only from legislatures)

  • These terms are a consistent set of principles and values of the legal system.
  • In Canadian law, judges understand the Charter as embodying the terms of our rule governed practice.

Hart’s Analysis to the Judicial Decisions of the case: Do the facts of this case fall within the meaning of liberty as defined in s.7 and s. 2(a) of the Charter?

Lamer & La Forest: This case presents itself as a penumbra, with the parent’s bringing the action that the Child Welfare Act infringes upon their Charter rights. While La Forest states that the Act does infringe upon section 7 rights to liberty, the overall Act is saved by section 1. Lamer concludes that the Act does not infringe upon Charter rights. Using the analogy of an eclipse; the facts of the case can be seen as the sun and the Act as the moon. The parents claim that the Act does not completely cover the facts and justify the State taking temporary custody of their child. The infringement to the parent's Charter rights block the Act from fully covering the facts, and creating the "penumbra". The court holds that the Act does not infringe upon the parent’s Charter rights, therefore releasing the Act to cover the facts and allowing the Act to stand.

Theorist: Lon Fuller

A Response to Hart- Morality of Law

The Theory:

Law and morality are not separate entities. They are connected but they disconnected from the divine.

What Judges Do:

— In determining the good that the law is accomplishing, judges have to interrupt both the external morality as well as the internal morality.

  • External morality is determined by society’s belief as a whole of what is moral and immoral, what is right and what is wrong.
  • Internal morality is the morality that comes from the law. Laws that are capable of being explained. Judicial decisions that are capable of being explained to the public in a coherent, and reasoned fashion are valid moral laws and decisions.
    • Judges have a fidelity to the law and a duty to change it if it does not conform to inner morality.

Fuller’s Analysis to the Judicial Decisions of the case:


Lamer decides that the Child Welfare Act does not contradict Charter rights under section 7. Looking at the external morality, society believes that the welfare of the child comes before the parent’s religious belief. Inner morality of the Act is justified by the fact that Lamar can explain and give reasons why the Child Welfare Act does not contravene a parent’s section 7 Charter right to liberty. The law is overall moral because it fits into society’s values regarding the welfare of children and it can be explained and reasoned to the public as to why this is the case.

La Forest:

La Forest decides that the Child Welfare Act does contradict the parent’s Section 7 Charter rights to Liberty but is saved by Section 1's reasonable justification on infringement. Looking at the external morality, La Forest see’s Liberty rights as broad and that parent’s should be able to make decisions for their child for what they believe is in the best interest of said child. He saves the Act via section 1 based on reasonable limits, while society believes that parents should make decisions for their children, the public can also see the value of requiring a basic standard in which all parents must abide. If parents fall below that standard, the state may step in and protect the interests of the child. La Forest can explain this reasonable limit, therefore making the Act moral in the eyes of Fuller.