Positivismo Jurídico - H.L.A. Hart

Summary

Today's video delves into Hart's characterization of legal positivism. It discusses the abuse of the term 'legal positivism' and clarifies four distinct aspects often associated with it: the theory of authoritative commands, the separation of law and morality, the importance of language in legal studies, and the coherence of legal systems. Hart critiques the command theory, arguing it fails to differentiate between criminal threats and legitimate law. The video also touches on Hart's analytical jurisprudence and his defense of the first three theses of legal positivism.

Takeaways

• 📚 The video discusses the characterization of legal positivism, a concept from H.L.A. Hart's work.
• 🏛 Hart critiques the misuse of the term 'legal positivism' to refer to different things and distinguishes at least four theses associated with it.
• 💬 The first thesis relates to the theory of commands, where legal norms are seen as orders backed by threats, exemplified by criminal law.
• 🔗 The second thesis is about the separation between law and morality, suggesting that existing law does not necessarily align with what should be law.
• 🗣️ The third thesis emphasizes the importance of language in the study of law, differentiating it from sociological and historical studies of norms.
• 🌐 Hart introduces the concept of 'penumbra' to describe the vagueness in legal language.
• 🔄 The fourth positivism thesis suggests that the legal system is coherent and conclusions can be drawn from the norms within it, aligning with formalism.
• 🤔 The fifth form of positivism is skepticism about ethical truths, questioning the possibility of knowing moral truths.
• 📖 Hart himself supports the first three theses within analytical jurisprudence, which includes the theory of commands, the separation of law and morality, and the importance of legal language.
• ❌ Hart criticizes the theory of commands for not adequately explaining what law is, differentiating between a criminal's threat and a state's legal order.
• 📚 He differentiates between 'primary' norms, which are orders backed by threats, and 'secondary' norms, which establish procedures for creating rights and obligations.

Q & A

What is the main topic of the video?

The main topic of the video is the discussion of H.L.A. Hart's characterization of legal positivism.

What does Hart say about the term 'legal positivism'?

Hart argues that the term 'legal positivism' is often misused to refer to different things and that there are at least four different theses commonly associated with legal positivism, but they are independent of each other.

What is the first thesis of legal positivism mentioned in the video?

The first thesis is about the theory of the mandate of authorities, where legal norms are considered as orders backed by threats, exemplified by criminal law such as the punishment for homicide.

What is the second thesis of legal positivism discussed in the video?

The second thesis is about the conceptual separation between law and morality, suggesting that existing law does not necessarily correspond to what should be law.

What does Hart emphasize as the third thesis of legal positivism?

The third thesis emphasizes the importance of language in the study of law, distinguishing it from sociological and historical studies of norms, and highlighting the analysis of linguistic vagueness or the 'zone of penumbra'.

What is the fourth type of positivism that Hart discusses?

The fourth type of positivism is about the coherence of the legal system, suggesting that it is a coherent whole from which conclusions can be drawn, and that judges must decide in a certain way because there are correct answers within the complete legal order.

What is the fifth form of positivism mentioned in the video?

The fifth form of positivism is related to ethical skepticism, suggesting that it is not possible to know ethical or moral truths.

Which three theses does Hart defend in his analytical jurisprudence?

Hart defends the theory of the mandate, the conceptual separation between law and morality, and the importance of the legal space for analyzing norms in his analytical jurisprudence.

What is Hart's criticism of the theory of the mandate?

Hart criticizes the theory of the mandate because it does not allow us to explain what law is, as it fails to distinguish between an order from a bandit and an order from a democratic state.

What is the difference between primary and secondary rules according to Hart?

Primary rules are orders backed by threats, whereas secondary rules establish procedures for creating rights and obligations and are not explained through the mandate but represent a different normative structure.

What does the video suggest the audience should do to engage further with the content?

The video encourages the audience to subscribe to the channel, activate notifications, and comment on what they would like to be discussed in future videos.