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

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The Separation Theory

H.L.A Hart asserts that legal and moral rule systems are distinct and separate, meaning that morality is not a mandatory component of legal rule. Morality and law are separate systems that can, and often do, intersect, but morality is not a requirement for a law to function. A law can be a law regardless of its grounding in morality.

Hart does not believe that laws should lose their title as law because they clash with our idea of morality and what is right. To Hart, when law and morality clash, we as individuals must weigh our obligations to the legal system and what is right and then decide if a law is too evil to follow. Therefore, Hart theorizes that people should decide with their own moral compass if they should follow a law or not.

Law as a Rule Governed Practice

Hart asserts that laws are more than mere commandments, they need to be obeyed for reasons other than punishment. Laws must be rooted in the rule of recognition to be stable and effective. This requires a consistent procedure of the part of the common law judges.

Hart points to three ways in which the rule of law varies from basic rules:

  1. Legal rules are special because they are backed up by the system which is a machine that enforces and creates legal rules
  2. Must be recognized as valid and right by the majority of people in society
  3. The players in a legal system themselves have to recognize that they should follow this law and enforce it

The Role of Judges

If a case falls outside the “settled core meaning” this is a “penumbra.” A penumbra arises when laws have an “unclear or indeterminate” meaning. [1] To settle penumbra cases, judges need to pull from the core settled meaning and interpret the meanings to draft an appropriate conclusion. Hart explains, judges evolve laws by resolving cases which fall into this category. To Hart, judges draw from the rule governed practices and apply rules to maintain a consistent judgements so others can follow the development of the law.

Application to Geffen v Goodman Estates

Hart would likely argue that the continued existence of equitable principles, like the presumption of undue influence is based on coincidence. While these principles initially arose to combat the harshness of common law, they merely exists to fill common law gaps and are no longer grounded in morality.

Hart may assert that the presumption of undue influence is not a command, but would be followed for various reasons other than fear of punishment. It is likely the majority would exercise caution in situations where this presumption can arise because it is in their best interest in the moment and in the long term.

However, he might take issue with the instability of this presumption because it is very fact specific and not the result of a consistent legal procedure.

The Morality of Law

Lon Fuller criticizes the separation theory, claiming it is fundamentally artificial. Without morality, people will be uncertain as to where law comes from and why it should be followed. There will be no basis on which an individual can evaluate law without morality.

Lon L. Fuller asserts that law is grounded in morality. Fuller rejects the idea of legal positivists that laws need not be moral. “Law” is more than a label and they require some moral substance to properly function in society. Fuller argues that positivists fail to address the dilemma that arises with the obligation to obey laws and the moral duty to not obey immoral laws.

Fuller states that the objective of law is to produce good order, not just order in society. This can only be achieved if the social acceptance of legal rules is grounded in internal and external morality. When laws don’t have the component of inner morality they disintegrate and stop functioning as a law. Without external morality there is no guide as to why people should obey the law.

Role of Judges

The judges role is to interpret and apply the law. Judges need to be aware of the purpose of the law and guard against bad laws. They have the responsibility of changing laws that do not conform with inner morality.

Inner Morality

Law itself has an inner morality - which is the purpose of the law. Good law that possesses inner morality will establish order in society and make for a stable legal system.

Law must be a coherent system. Laws must meet with the following factors to possess inner morality and be effective in order society:

  1. Decisions must not be ad hoc (disconnected)
  2. Rules must be public, knowable
  3. There can be no abuse of retroactive legislation
  4. The rules are understandable
  5. Rules are not contradictory
  6. Rules can be obeyed
  7. Rules are infrequently changed – so people can orient their behaviour
  8. There is no disjunction between rules

Application to Geffen v Goodman Estates

Fuller would find that the presumption of undue influence would strongly represent a moral law. Being based in equity, the presumption of undue influence, guides society on moral behaviour, allowing for the creation of good order. Fuller would confirm that the presumption of undue influence has sufficient inner morality to function as a good law because it protects minorities and the trust required for a proper transaction, making for a more stable and organized society.

Assuming Fuller agrees with the presumption of undue influence, the judges were right in the unmodified application of the presumption. Judges need only make changes if a law doesn’t conform with inner morality and this was not the case in Goodman v Geffen Estates.


  1. Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 183.