Research Essay

Jurisprudence Research Essay: Question One Word Count: 1435 Maryanne Fares (45952264) Introduction. This paper will explore the Separability Thesis and how it maintains the view that there is no relationship between law and morality as established by HLA Hart. This thesis is a fragment of the normative legal positivist concept accentuating that law and morality are separate from the other. This Separability Thesis is referred to in the legal positivist theory. 1 Theorists typically immerse on the question of whether morality and law is connected however, only a few law and morality connections hold real philosophical importance. 2 Upon the explanation of the Separability Thesis, an advantage and disadvantage of this thesis will be addressed. One the one hand, the advantage to be examined is the well-defined structure of the thesis and its application to particular laws regarding the connection between law and morality. 3 However, one the other hand, arguably there is no one 'theory' regarding the thesis as discussed below. 4 This notion will exemplify that the thesis is convincing and will be proved through substantial philosophical concepts. The Separability Thesis. The Separability Thesis asserts that the connection between law and morality is conceptually distinct. Its typically interpreted as an object-level claim regarding the prevailing conditions concerning legal validity. The Separability Thesis is typically construed as to 'endure' any contingency between law and morality provided that the connection may conceivably fail. 5 Hart contends that legal obligations are not automatically linked to moral obligations and gives the example that just because something is a legal rule does not determine whether it 1 Denise Meyerson, Jurisprudence (Oxford University Press, 2011). 2 Jules L. Coleman, 'Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence.' (2007) 27(4) Oxford University Press 581, 608. 3 Ibid. 4 Ronald M. Dworkin, 'The Model of Rules' (1967) 35(1) University of Chicago Law Review 14, 46. 5 Leslie Green, 'Positivism and the Inseparability of Law and Morals' (1950) 83(4) New York University Law Review 1035, 1050.

Jurisprudence Research Essay: Question One Word Count: 1435 Maryanne Fares (45952264) should be morally obeyed. 6 Arguably, academics who make statements concerning legal obligations do not have to deem that laws are morally legitimate nor do they have to conform to the notion that citizens are under a moral duty to obey laws. 7 Hart asserts that Austin's pitfalls regarding his theoretical approach was amended through the Separability Thesis outlining the difference between coercion and the law. 8 In legal positivism, the assertion that law and morality are separate and distinct is not dependent on or constrained by morality. 9 An overarching view of Hart's theory, amongst other philosophers, will be considered regarding the Separability Thesis as the positivist theory explores the notion that understanding the 'framework of legal thought' is attainable by society without morals. 10 Thesis Advantage. An overarching advantage of the Separability Thesis is that it outlines the rights, freedoms, and obligations of a person regarding the law. This incorporates setting standards of practice in everyday life coinciding with Hart's formulation claiming that morality is not a necessary condition of legality and compliance. 11 The Separability Thesis formulates that there is no truth that law reproduces or satisfies morality's demands despite doing so in various cases. 12 By understanding this advantage of outlining the rights and obligations of a person it structures and stabilises society. Therefore, we can understand Hart's formulation of 'necessity' in the Separability Thesis as morality is not a logical condition of legality. 13 This 6 HLA Hart, The Concept of Law (Oxford University Press, 2012), 81. 7 Matthew H. Kramer 'Legal Reductionism and Freedom' (2000) 59(3) The Cambridge Law Journal, University Press 420, 430. 8 Ibid. 9 Denise Meyerson, Jurisprudence (Oxford University Press, 2013), 36. 10 Ibid. 11 HLA Hart, The Concept of Law (Oxford University Press, 2012), 81. 12 HLA Hart, Positivism and the Separation of Law and Morals' (Harvard Law Review, 1958) 71. 13 William C. Starr, Law and Morality in H.L.A Hart's Legal Philosophy (Law Review, Marquette University, 1984) 676.

Jurisprudence Research Essay: Question One Word Count: 1435 Maryanne Fares (45952264) advantage outlines the rights, freedoms, and obligations society holds concerning law enforces that all crimes are punished regardless of the motives. 14 Thesis Disadvantage. There are various disadvantages to the Separability Thesis such as the assertion that there is no essential certainly that law fulfils or imitates morality's requests. Hart discards the Command Theory highlighting that law has countless other fundamentals features. 15 The overarching disadvantage to the Separability Thesis is counterintuitive to the aforementioned advantage. By dispersing morals and the law this questions individual and societal influences made in cases (mitigating and aggravating factors) in addition to societal factors. 16 HLA Hart states that objective conclusions can be determined if the person doing the act is objective and disregards their emotions. However, this notion is not attainable in that someone's actions are always fuelled by emotions which are the outcome of morals and values. 17 Human behaviour naturally comes with emotional responses despite this thesis encouraging human emotion and behaviour to be ignored. 18 The disadvantage in applying the Separability Thesis is evident through the way it dehumanises the person and society within laws. Through this disadvantage, it is evident that implementing the Separability Thesis makes it more difficult to challenge and change laws. 19 Is The Thesis Convincing? The Separability Thesis was found to be convincing for the following reasons. Within legal positivism the assertion that law and morality are separate and distinct is not dependent on or 14 Ibid. 15 HLA Hart, Positivism and the Separation of Law and Morals' (Harvard Law Review, 1958) 71. 16 Jules L Coleman, 'Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence.' (2007) 27(4) Oxford University Press 581, 608. 17 HLA Hart, The Concept of Law (Oxford University Press, 2012), 81. 18 Edgar Bodenheimer, 'Shuman: Legal Positivism: Its Scope and Limitations'(1963) 62(1) Michigan Law Review 154, 161. 19 Matthew H. Kramer 'Requirements, Reasons, and Raz: Legal Positivism and Legal Duties' (1999) 109(2) Ethics 375, 407.