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

Separation Thesis and the Morality of Law

HLA Hart's Separation Theory

H.L.A. Hart is a modern legal positivist. He believes that morality and law are separate systems. While Hart believes that the two can run parallel, they are still two distinct entities. Laws have “ought claims” which try to tell the public that we “ought to follow” them. Laws do not need to be moral in order to be valid. Instead, Hart asserts that valid laws should be understood in terms of the rule-governed practice.

What is the rule governed practice? It is the legal system as a whole. There are principals that run through the entire body of law and the legal system itself. This “rule governed practice” is what leads to consistent decision making in the penumbra cases. Penumbra cases are those “hard cases” which fall to the judge to decide whether the case falls within in a settled core meaning. Judges are obliged to conform to this rule and in doing so, formulate patterns that can be relied upon.

Lon Fuller’s Critique of Hart’s Theory

Lon Fuller has an opposite view when compared to H.L.A Hart. He believes that separating morality and law is not possible. Fuller’s argument has four main points. First, he believes that social acceptance of legal rules depends on grounding in external morality. Second, Fuller believes that law itself has an inner morality. Third, he argues that positivists cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to obey immoral laws. Positivists, also, cannot provide a coherent theory of when one is obliged to follow one over the other. Lastly, Fuller criticises the “core” and “penumbra” theory of judicial interpretation. He says there is not settled core meaning and therefore no penumbra. He believes that laws are always interpreted in context and with reference to the purpose of the “rule” and the good it was to accomplish.

Application to Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28

Hart Morality concern is separated. Discriminating against people who don’t pay, has nothing to do with dignity Just discriminating on whether you payed or not in order to make whole system viable for people who need it on broad basis RGP is about objective and end aspect is protecting people who need it. Penumbra - judges decision for SCC - they use fundamental principles of fj Imparitality, objectivity, Sometimes it does overlap - CPP is supposed to overlap with a moral good, which is to help people who need it the most. They created, and created special provisions so that people could take advantage of it, even in cases of exceptions. This might look like morality but it is just a natural consequence of following the proper order

Laws and morality run in parallel - section 15 has nothing to do with morality, just good governance Drop out provisions have nothing to do with morality - clearly anticipating problems and attempting to rectify them in advance, You can weigh the rule against morality Legal rules ought to be followed - Granovsky should have followed the rules, not following the rules doesn’t deny his dignity What about the rules not applying to people it should? That’s a moral argument at this point time.

Have no choice but to follow legal rules (pay taxes) Choice is apparent in this case, you are choosing to buy into a legal program Backed up by a system (pay your taxes every year) CPP system you have to buy into, system monitors contributions Rule of recognition (valid and right by majority of people in society to pay taxes - we give validity to tax) Recognized by the people who give power to the parliamentary entities that enabled the act You have to think it is valid to buy in

Players in legal system have to give validity to the system, they are bound to follow the law, right to do so Everyone has to enable the rule

You follow the rules for reasons other than to avoid punishment - we ought to intrinsically Could be path of least resistance as well, but that’s ok. Law doesn’t need to be good necessarily Maybe because people are inherently good, justice oriented individuals Long term self interest - murder someone have to fear for a long time being caught

Section 7, Section 1 - have the RGP Included Section 15 - allowing this section follows RGP because it allows dignity/full autonomy

Opted in manually - believe in the rule in order for it to be a law, they believe because they bought in, not a free ride program, they should submit to the validity of the law - if it doesn’t work for him that’s too bad. Morality leading to dignity would have no effect. We have the ability to not follow etiquette rules, we have no choice but to follow legal rules, he didn’t follow the rule

Fuller CPP exists as a program exists due to the inner morality of the law. Inner morality of the law guided us to the provisions. Coherence, rational, explainable - laws that have these currents running through them are moral The legislation tends towards good stuff, good laws are more coherent, that’s why this thing works Purpose of law is to help people who fall within the cpp provisions, law is moral and good within itself, some problems do happen for people who fall outside the program.

Section 15 Is inherently moral, coherent, explainable etc, tends towards better social good.