The Erosion Of The Separability Thesis: Re- Evaluating The Law-Morality Divide Through The Lens Of Green Constitutionalism
- IJLLR Journal
- 2 days ago
- 1 min read
Jayendra Kumar Sahu, Scholar, Govt. J. Yoganandam Chhattisgarh College, Raipur
Dr. Bhoopendra Karwande, Assistant Professor, Govt. J. Yoganandam Chhattisgarh College, Raipur
1. ABSTRACT
The "Separability Thesis," a cornerstone of analytical legal positivism most famously defended by H.L.A. Hart, asserts that the legal validity of a norm is independent of its moral substance. However, the escalating global ecological crisis—the Anthropocene—has prompted a judicial metamorphosis. Modern "Green Constitutionalism" increasingly integrates environmental ethics directly into the foundational fabric of the law, suggesting that the wall between "what the law is" (posited) and "what the law ought to be" (moral/ethical) is becoming structurally porous.
This article argues that the Doctrine of Separability faces inherent limitations when applied to environmental survival. By evaluating landmark "Green" judgments, this research demonstrates a shift toward an Ecologically Grounded Jurisprudence. It posits that judicial interpretations of the "Right to Life" and the "Public Trust Doctrine" have effectively elevated environmental ethics from a peripheral moral concern to a mandatory legal Grundnorm. Consequently, a law that permits the irreversible destruction of the biosphere may no longer be considered "valid" under a modern, ecologically sensitive Rule of Law, thereby challenging the positivist insistence on value-neutrality.
The study examines the intersection of Legal Philosophy (Jurisprudence) and Environmental Constitutionalism. It analyzes the Hart-Fuller debate in the context of climate litigation and reviews the administrative application of the Precautionary Principle as a bridge between ethics and enforcement. The geographical scope focuses on transformative constitutionalism within the Global South (e.g., India and Colombia) and its influence on global legal norms.
