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

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Hart's Separation Thesis

The "separation thesis" is easily understood as the assertion that law and morality operate within two distinctly separate spheres. Essentially, legal rules exist independently from moral beliefs. However, laws are incapable of being 100% prospective, and a scenario will inevitably arise where it becomes unclear whether or not the law applies. These scenarios become known as the "hard" cases; cases where a legal decision needs to be made, and it becomes up to the judge's discretion to decide what precisely is the "core" meaning of the law. But, how does a judge decide what falls inside or outside the core meaning of the law? This gap is the penumbra, an area where it is unclear if the particular case falls within the core of the law in which it is being tried.

Hart uses the example of a law seeking to ban the use of "vehicles" in a public park. Although we plainly know a vehicle is an automobile, it can be interpreted as being a multitude of other items, such as a skateboard. This unclear area in the law where interpretation must be used by the judiciary is the penumbra[1]. This penumbra surrounds all legal rules. Hart asserts we must avoid the "arid wastes" [2] of inappropriate definitions when navigating the penumbra. Although when confronted with situations of unclear definition we are tempted to cut to a moral understanding of the word, Hart asserts this desire should be kept to "as little arbitrary and as 'necessary' as the connection between law and sanctions"[3] as possible.

According to Hart, judges should fill the gap of the penumbra by considering the governing rules from which they arose: the basic principles of justice. If judges successfully follow these principles, the concluding judgement will be one of an "amoral" nature. Now, "amoral" is not to be confused with "immoral". An "amoral" decision is not a counter-moral conclusion, it is a decision divorced from morality; a decision founded entirely on the principles of law. Additionally, as one essential element of the concept of justice is equality, this is better achieved through a standard interpretation of the law. Hart asserts that moral interpretations of the law encourages an individuality of the law's application, thereby making the predictable nature of precedent harder to apply consistently and genuinely[4].Such a decision is possible under the "separation thesis" because of the belief that law is separate from morality.

Fuller's Critique of Hart's Separation Thesis

Fuller on the other hand asserts an impossibility of divorcing morality from law. The general idea of Fuller's critique of Hart's "separation thesis" is that laws themselves are inevitably encumbered with the instrumentations of morality. Laws are not made because of an objective need for order; laws are made because of an objective need for a subjectively "good" order. The very subjectivity of "good" is indicative of a moral valuation. This moral valuation is also the reason why laws have an inherent "inner morality", and why an "immoral law" presents a struggle for legal obedience.

Additionally, the concept of a law's defined "core" is a folly. Judge's cannot settle on a "core meaning" of a law, because laws themselves are always subjected to interpretation. Fuller asserts that the very need for "judicial interpretation" signifies the impossibility of a "core meaning". Furthermore, when judges do attempt to locate the "core" of a law when presented by a penumbral gap, they can, and often do, turn to morality to help fill in the gap to determine the "good" the law was attempting accomplish.

Reconciling the Conflict

Fuller and Hart, although seemingly at opposite ends of a theoretical spectrum, can be easily reconciled with one another. By considering Hart's assertion that law and morality are separate sphere's, and using Fuller's critique as an explanation for the emergence of the penumbral gap, we can see where the role of the judge appears. Here, the judge's role is not to be an amoral vessel according to Hart, nor a morally motivated judicial interpretation device according to Fuller, but to be the arbiter occupying the gap in which law and morality overlap.

Where the Penumbra Exists

If we consider judges to be arbiters of the gap, their role becomes clear: they are to enforce the principles of law, while considering the morality implicated by the legislative intent. By doing so, they are not entirely motivated by an ultimately subjective "good" of the law, nor will they be bound to enforce an immoral law as a result of blind obedience to legal principles.

Applying the Separation Thesis to the Case

The argument of this case, that the non-feasance of the investigating officer was a material contribution beyond "de minimus" range resulting in a causal connection linking the RCMP with the harm suffered by the appellant, is decidedly onerous. However, Hart's separation thesis does offer an explanation for the majority judgement.

Donald J.A.

Smith J.A.

Hall J.A.

  1. Chapter 8: The Separation Thesis, page 193
  2. Chapter 8: The Separation Thesis, Page 201
  3. Chapter 8: The Separation Thesis, page 201
  4. Chapter 8: The Separation Thesis. Page 202