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

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The Separation Thesis


H.L.A Hart, a legal positivist, makes the assertion that there is no connection between law and morality. Hart argues law and morality are two separate systems which run parallel to one another. Hart states that when there is a clash between moral values and law, it is up to individuals to decide whether we should follow that law or ignore it. Individuals will come to this conclusion by deciding whether the obligation to follow moral values is higher. If a law cannot add to the common good of society, it is then not considered to be law and it should not be followed.

Hart says law must be analyzed in accordance to what it ought to be, as opposed to what it is. In order to find out what law ought to be, we must look at the rule governed practices and also at the rule of recognition. The rule of recognition states that a law will be justifiable if those who create the law truly believe it to be the law.

Hart differs from John Austin, the previously mentioned legal positivist, because Hart acknowledges laws can be affected by clashes between moral values and the law. Hart, being a legal positivist, also differs from natural law theorists. Although acknowledging clashes between moral values and the law he does not combine law and morality but directly states that the two are separate. Thomas Aquinas and Hart are different not only because one is a legal positivist and one a natural theorist, but they are also different because Hart does not make any reference to moral values being connected to God's law. However, Thomas Aquinas and Hart do both agree that one of the end goals of law is the common good. Their process of getting to what they believe is the common good and their understanding of what the common good is what really differentiates the two theorists.

HLA Hart

Role of Judges

Judges play a special role of law making under Hart’s theory of law, this role is significantly different from John Austins understanding of the role of judges. Rather then have a limited role for judges like John Austin, Hart's theory of law places a greater on judges to interpret the law. Legal rules, both legislation and common law, need to be expressed in general terms so that they can apply to society in the same way. Within these rules, there will be a settled core of meaning and in some cases, the factual situations presented in the case may fall outside this settle meaning. Hart calls this the ‘penumbra’. The cases that fall in this ‘penumbra’ are what Hart refers to as the hard cases. It is within these hard cases that judges decide whether that specific case falls within the settled core of meaning. In order to do this, the judges must interpret the laws and fill in the gaps. In order to create consistency for the judges when interpreting laws in the penumbra, Hart states that law must be understood in terms of the rule-governed practice that give rise to them. The rule governed practice is the legal system as a whole.

Application to Trinity Western University v. British Columbia College of Teachers

This case would be considered a hard case because we have to look at two separate clashes between law and morality. There is no easy solution where law can just find a home within the settled core of meaning. The first clash is between section 4 of the Teaching Profession Act and the freedom of religion. Section 4 of the act is law as it is legislative law and it clashes with the morality of freedom of religion. The purpose of section 4 is to establish standards for the teachers that graduate from the province, looking specifically at public interest. The rejection of Trinity Western’s five year program would go against the morals of freedom of religion. We have to look at whether section 4 is considered valid law. The court looks at the arguments provided and rules in favour of British Columbia College of Teachers. Trinity Western brings up the argument that British Columbia College of Teachers is not authorized to deal with discriminatory practices because they were not created to render judgments on discrimination, human rights or religious beliefs. The British Columbia College of Teachers argument is that they must ensure that the teaching program gets the teachers ready for when they enter public schools and the overall diversity of the country by making sure that the program reflects human right values. As stated above, the judge sides with the British Columbia College of Teachers and states that they have jurisdiction to consider discriminatory practices in dealing with the Trinity Western University application. When dealing with this clash, Hart would come to the same conclusion as the judgement. He would look at the clash and decide the outcome on the basis of what is better for the society as a whole. So, Hart would argue that it is in society’s interest to have teachers who reflect and respect the diversity of the students they will teach.

The second potential clash is between the freedom of religion as a law, and the morality of freedom of equality. Hart would consider the Charter to be valid law. The Charter accommodates religious freedom by allowing religious institutions to discriminate in their admission policies on the basis of religion. On the other hand, the morality of freedom of equality looks at how the graduated teachers would treat their students in and outside of the classroom. Hart says that we need to balance these two against one another and pick whichever will lead to the betterment of society, if there is a conflict. The question the judgment looks at is whether it will be in the public interest to allow public school teachers to be trained at Trinity Western University. The argument that was brought out was that the restrictions of freedom of religion will have a detrimental impact on the public school system. However, the evidence provided to the court shows that there have been no incidents of discrimination by those teachers who graduated from Trinity Western University. There is no evidence that indicates that Trinity Western University graduates will not treat homosexuals or individuals of other religions fairly and respectfully. In this case, it would be possible to uphold both the law and morality as they will be able to work together. Teachers can have certain views and beliefs, but can only be punished if they act in a way that contradicts freedom of religion. So, as long as they treat the students in an equal manner, the beliefs they have should not be a factor. However, if the religious beliefs of the teachers lead to actions of inequality, that is when the British Columbia College of Teachers has to step in and discipline them Hart would have come to the same conclusion because it is in society’s interest that a teacher be able to teach and fit into a public school system which represents the diversity of the country.

Lon Fuller

Lon Fuller was a critic of HLA Hart and believed that morality did play a role in the law thereby making him an opponent of John Austin's theory of law as well. Lon Fuller was a supporter of Natural law. He differed from Thomas Aquinas by identifying the creation of law in the same manner. Rather than using the process proposed by Thomas Aquinas Lon Fuller proposed a different theory. First, there was the external morality, which was a belief that they will produce good order. Second, there is the internal morality of the law. The internal morality of the law focuses on several points, which could potentially make a law fail. These are when decisions are ad hoc; where rules are not public, knowable; the abuse of retroactive legislation; where rules are not understandable; where rules are contradictory; where rules cannot be obeyed (obeying them beyond person’s ability); very frequent changing of rules (so person cannot orient their behaviour by them); and disjunction between rules, and rules as actually administered. If the laws fail either of the aspects of morality, external or internal then they cannot be considered Law. The role judges play is a role of interpretation. Judges should look to the purpose of the law and the good it is to accomplish. If the case is difficult the judges will generally be looking at the competing purposes in play. In the case of Trinity Western University v. British Columbia College of Teachers [1] (Trinity Western University) Lon Fuller would be most interested in s. 4 of the Teaching Profession Act, Responsibilities of Membership in the Community of Trinity Western University, and the judgment made by the majority of the court.

Lon Fuller

S. 4 of the Teaching Profession Act

S. 4 of the Teaching Profession Act is the authority British Columbia College of Teachers used in preventing Trinity Western University from having their teaching program based on discrimination. The prevention of discrimination produces order as it makes individuals equals within society. Although the prevention of discrimination may not have been the main purpose of the legislation the prevention of discrimination is arguably the main purpose of the legislation in this situation [2]. Therefore the external morality of s. 4 of the Teaching Profession Act is the prevention of discrimination.

The internal morality of the legislation is brought into question due to an inability to understand the law. According to Lon Fuller clarity in the law is important; a rule will not be considered a law if it is not understandable. The Teaching Profession Act is potentially not understandable due to the courts need to interpret it. In Trinity Western University the court interpreted whether the British Columbia College of Teachers had the authority to prevent Trinity Western University from running its teaching program on the grounds of discrimination. However, the Supreme Court of Canada was able to deduce that the Teaching Profession Act did allow British Columbia College of Teachers to consider discrimination in the Trinity Western University application [3]. As the courts were able to interpret the law in regards to its purpose the understandability of the law is not at issue. Therefore s. 4 of the Teaching Profession Act is a valid moral law.

Responsibilities of Membership in the Community of Trinity Western University

The Responsibilities of Membership in the Community of Trinity Western University ("Community Standards") is arguably to produce good order. The reason for this is that the "Community Standard" promotes behaviour that follows similar morals to the Christian belief of preventing drunkenness, ect. At issue in this case however, is the rule requiring students and employees to not practicing homosexual behaviour. In the case of the " Community Standard" the freedom of religion to enhance public order is the proposed external morality. This is best explained by Canadians belief that it is important to let individuals discriminate to allow for a “wide variety of beliefs, diversity of tastes and pursuits customs and codes of conduct” [4]. This justifies the external morality used. Also the "Community Standards" satisfies all of Lon Fuller’s internal morality conditions. Therefore, the "Community Standard" is valid law. The issue of jurisdiction and valid law makers is not discussed by Lon Fuller.

Majority Decision by the Judges

Lon Fuller would consider Trinity Western University a hard case for a judge to decide upon. Both laws are valid according to Lon Fuller’s reasoning. The judges would then be required to decide which law’s purpose is more important. The majority of the Supreme Court of Canada in Trinity Western University decided in favour of freedom of religion [5]. Mostly on the grounds that considering discrimination outside of the application process without evidence of the said discrimination is not a justification [6]. In my opinion Lon Fuller would have came to the same conclusion. First the Charter must be read as a whole and neither freedom of religion or equality rights are absolute. Instead they are equal. This appears to be similar in Lon Fuller’s belief of the external morality. Instead reconciliation should be the goal of the judges. The purpose of s. 4 of the Teaching Profession Act was to prevent discrimination in the Trinity Western University application for a teachers program. It is not to make decisions that would not be explainable/ provable through the law. This is one of the internal moralities that can make a law invalid. Therefore to reconcile both the freedom of religion and equality something must be proposed to prevent further discrimination post degree but allow one to pursue their freedom of religion. The courts satisfied this by expressing the difference between having a belief and acting upon it [7]. It is for this reason that both freedom of religion and equality rights have been reconciled and the main purpose of both laws are satisfied.


  1. Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 at para 2 and 28, [2001] 1 SCR 772,
  2. Ibid at para 14
  3. Ibid at para 14
  4. Ibid at para 28
  5. Ibid at para 46
  6. Ibid at para 44
  7. Ibid at para 37