Is it Possible to Separate Law and Morality?

Paper Summary:

The essay explores the legal positivist separation thesis. It approaches the question of whether it is possible to separate law and morality from two aspects- first, the content of the law and secondly, the judicial decision making process. The writer makes reference to the policy of removing part-Aboriginal children from their families and communities, and placing them in special purpose institutions to support his argument.

From the Paper:

"It has been described as ;arguably the most tragic and shameful chapter in Australia";s history.; From the late nineteenth century to the late 1960's, Australian governments carried out the policy of removing part-Aboriginal children from their families and communities, placing them in special purpose institutions. Often, these removals were carried out by force. The purpose of this removal policy was to assimilate the part-Aboriginals with the white community as the full-blooded Aboriginals were believed to be a doomed race in the sense that they would die out. A large number of the children suffered physical and emotional mistreatment following the removal from their families. The children who were removed under this policy came to be known as ";the stolen generation" This sets the backdrop against which I will discuss whether it is possible to separate law and morality with respect to the Australian court"s law making power.4 The separation of law and morality is the foundation of legal positivism. Positivists often criticize natural law theorists for blurring the line between law and morals. This essay aims, by examining three stolen generation cases, to illustrate that the separation of law and morality is both possible and impossible, depending on how one defines the phrase ";separation of law and morality."

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