Positivismo Jurídico - H.L.A. Hart

Norma y Reflexión

6 Oct 202104:04

Summary

TLDRToday'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.

Outlines

00:00

📚 Introduction to Legal Positivism

This paragraph introduces the topic of the video, which is an exploration of legal positivism, particularly focusing on H.L.A. Hart's characterization of it. It mentions that there are different definitions of legal positivism and that Hart critiques the overuse of the term. The paragraph outlines four theses commonly associated with legal positivism: the theory of authoritative commands (laws as orders backed by threats), the separation of law and morality, the importance of language in legal studies, and the coherence of the legal system. It also introduces a fifth form of positivism related to ethical skepticism. Hart's analytical jurisprudence is highlighted as defending the first three theses, while also critiquing the theory of commands for its inability to distinguish between the orders of a bandit and those of a democratic state.

Mindmap

Keywords

💡Legal Positivism

Legal Positivism is a philosophy of law that suggests that law is a social fact and is separate from morality. In the context of the video, it is used to discuss Hart's characterization of law, emphasizing that law can be understood as a set of rules created by human authorities. The video mentions that Hart critiques the abuse of the term 'Legal Positivism' as it is often used to refer to different things.

💡Hart

Hart refers to H.L.A. Hart, a prominent legal philosopher whose work is central to the discussion in the video. Hart is known for his theories on the nature of law and legal positivism. The video discusses Hart's views on the different aspects of legal positivism and his critique of the command theory of law.

💡Command Theory

The Command Theory is a concept within legal positivism that suggests laws are commands issued by a sovereign authority. The video uses the example of criminal law, stating that laws such as prohibitions against homicide are backed by threats of punishment, which is a key element of the command theory.

💡Primary Rules

Primary Rules, as mentioned by Hart, are those that impose duties or obligations directly. In the video, it is explained that these are the rules backed by threats, such as the threat of imprisonment for committing a crime, which is a concept derived from the command theory.

💡Secondary Rules

Secondary Rules, as opposed to Primary Rules, are rules that regulate the creation, modification, or adjudication of primary rules. The video explains that Hart argues these rules are not commands backed by threats but are a different kind of normative structure.

💡Separation of Law and Morals

The Separation of Law and Morals is a concept discussed in the video that suggests law can exist independently of morality. Hart's positivism argues that the existence of law does not necessarily correspond to what should be morally right or wrong, which is a key aspect of his legal positivism.

💡Language of Law

The Language of Law is highlighted in the video as a crucial aspect of legal positivism. Hart emphasizes the importance of language in the study of law, distinguishing it from sociological and historical studies. The video mentions Hart's focus on analyzing the vagueness of legal language and the 'zone of penumbra'.

💡Coherence of Legal System

Coherence of the Legal System is a concept that suggests the law is a consistent and coherent set of rules. In the video, it is mentioned that Hart argues that because the legal system is coherent, it is possible to derive conclusions from the norms within the system.

💡Formalism

Formalism, as discussed in the context of the fourth type of positivism in the video, is the idea that there are correct answers within the law, and judges must decide cases in a certain way because the legal order is complete. This concept is related to the coherence of the legal system.

💡Ethical Skepticism

Ethical Skepticism is the view that moral truths are unknowable. Hart's positivism includes the idea that ethical skepticism is a separate concept from the other aspects of legal positivism. The video mentions that while a positivist may not necessarily defend all aspects of positivism, they might support some, such as the separation of law and morals.

💡Analytical Jurisprudence

Analytical Jurisprudence is a branch of legal philosophy that focuses on the analysis of legal concepts and language. Hart is associated with this school of thought. The video states that Hart defends the first three theses of legal positivism within the analytical jurisprudence tradition.

Highlights

Introduction to Hart's characterization of legal positivism.

Hart's critique on the misuse of the term 'legal positivism'.

The first thesis of legal positivism: law as a command backed by threats.

The paradigmatic example of criminal law as a command.

The second thesis: the conceptual separation between law and morality.

The third thesis: the importance of language in the study of law.

Emphasis on the analysis of language vagueness or 'the penumbra zone'.

The fourth positivism: the coherence of the legal system.

The idea that judges must decide in a certain way due to a coherent legal system.

The fifth form of positivism: ethical skepticism.

Hart's view that these hypotheses are independent and a positivist does not necessarily defend all of them.

Analytical jurisprudence and its defense of the first three theses.

Hart's strong criticism of the command theory.

The inability of the command theory to distinguish between a bandit's order and a state's law.

The distinction between primary and secondary norms according to Hart.

The importance of understanding the structure of secondary norms.

Invitation to subscribe to the channel and activate notifications for future content.

Request for comments on what topics viewers would like to see covered in upcoming videos.