Legal Positivism - the dominant theory in jurisprudence
Summary
TLDRThis script explores the concept of legal positivism, contrasting it with natural law theory in jurisprudence. It explains how law is a social phenomenon, sustained by human thought and action, independent of morality. The video clarifies misconceptions about positivism, emphasizing that while laws are social constructs, positivists can still advocate for moral laws. It also discusses the separation thesis, distinguishing between 'what the law is' and 'what the law ought to be,' using historical figures like Martin Luther King Jr. to illustrate the points.
Takeaways
- 📚 The law school curriculum in English-speaking countries typically focuses on landmark U.S. cases involving specific events and real human beings.
- 🤔 Jurisprudence, or Philosophy of Law, is often challenging for third-year law students, especially when studying the dominant theory of legal positivism.
- 💭 Legal positivism posits that law is a social phenomenon, similar to money or fashion trends, whose existence depends on human thoughts and actions.
- 💰 The value of money is a social phenomenon; it is real but only exists because people collectively believe in its value.
- 👗 Fashion trends are an example of social phenomena that exist because people collectively think they are fashionable.
- 🛗 The 'elevator rule' illustrates a social phenomenon that exists due to people's adherence to unspoken rules based on shared beliefs.
- 🏗️ Created objects like tables differ from social phenomena in that they don't rely on human thoughts for their continued existence.
- ⚖️ Legal positivism asserts that law is a construct of human creation and maintenance, existing because of social facts and human psychology.
- 📜 Legal facts, such as what is considered illegal, are ultimately social facts that depend on human actions, such as legislation and collective acceptance.
- 🔍 Legal positivism contrasts with natural law theory, which suggests that law is not only a social phenomenon but also inherently a moral one.
- 🛑 Martin Luther King Jr.'s stance on unjust laws reflects the natural law perspective that a law violating moral principles is not truly law, challenging the positivist view.
Q & A
What is the focus of the law school curriculum in English-speaking countries?
-The law school curriculum in English-speaking countries often focuses on landmark cases such as Marbury v. Madison, Plessy v. Ferguson, and Brown v. Board of Education, which involve specific events that happen to real human beings.
What is Jurisprudence in the context of law studies?
-Jurisprudence is a term for the Philosophy of Law, which is typically studied by law students in their third year in the United States.
What is the dominant theory in jurisprudence today?
-The dominant theory in jurisprudence today is Legal Positivism.
What is a social phenomenon according to the script?
-A social phenomenon is something that depends for its existence on the thoughts or actions of people, such as money or fashion trends.
Why does the value of money depend on social phenomena?
-The value of money depends on social phenomena because its status as a medium of exchange is maintained by the collective belief and actions of people.
What is the elevator rule mentioned in the script?
-The elevator rule is an example of an unwritten social rule of etiquette where people are expected to turn around and face the door when entering an elevator.
What is the difference between a social phenomenon and a created object like a table?
-A created object like a table does not rely on human beings for its continued existence, unlike social phenomena such as rules or values, which cease to exist if the collective human thought and action that sustains them disappears.
What is the core idea of Legal Positivism?
-The core idea of Legal Positivism is that law is a social phenomenon created and sustained by human actions and thoughts.
What is the separation thesis in the context of Legal Positivism?
-The separation thesis is the contention that there is no necessary connection between law and morals, meaning that what the law is (descriptive facts) can be separated from what it ought to be (normative facts).
What is the main difference between Legal Positivism and Natural Law Theory?
-The main difference is that Legal Positivism views law as a purely social phenomenon without inherent moral constraints, while Natural Law Theory posits that law is partly a social and partly a moral phenomenon, with moral facts influencing the existence of legal facts.
How does Legal Positivism view the actions of someone like Martin Luther King Jr. who resisted unjust laws?
-Legal Positivism acknowledges that Martin Luther King Jr. broke the law but did so based on a moral vision, recognizing the law as evil and resisting it accordingly.
What does the term 'posit' mean in the context of Legal Positivism?
-In the context of Legal Positivism, 'posit' refers to the idea that law is something that was thought into existence by human thought.
Outlines
📚 Introduction to Jurisprudence and Legal Positivism
This paragraph introduces the concept of jurisprudence, which is the philosophy of law, and highlights the difficulty third-year law students in the U.S. face when first encountering it. It explains the dominant theory in jurisprudence, legal positivism, through the lens of social phenomena—things that exist because people think or act in certain ways, like money and fashion trends. The paragraph uses the example of money to illustrate how its value is a social construct dependent on collective human thought and action. It also distinguishes between social phenomena like etiquette rules, which depend on human thought for their existence, and physical objects like tables, which do not.
📜 The Social Thesis of Legal Positivism
The second paragraph delves into the social thesis of legal positivism, which posits that law, like other social phenomena, exists because of human actions and thoughts. It contrasts this with the natural creation of objects and explains that legal facts are social facts. The paragraph references the work of Joseph Raz, a prominent legal theorist, and discusses how legal positivism views the creation and sustenance of law through social facts, such as legislation and collective acceptance. It also briefly introduces other theorists like John Austin and HLA Hart, who contributed to the development of legal positivism by explaining the existence of legal systems in terms of human actions and psychological states.
🛑 The Natural Law Theory and Its Contrast with Legal Positivism
This paragraph explores the alternative to legal positivism, known as natural law theory, which asserts that law is not only a social phenomenon but also inherently a moral one. It suggests that legal facts are determined by both social and moral facts. Using the example of a law against jaywalking, the paragraph explains how positivists view the law as a social construct, while natural law theorists argue that for a law to be valid, it must also align with moral principles. The paragraph also touches on the famous 'Letter from a Birmingham Jail' by Martin Luther King Jr., which reflects the natural law perspective that unjust laws are not truly laws.
🔍 The Separation Thesis and Critique of Natural Law Theory
The final paragraph discusses the separation thesis, which is a key aspect of legal positivism that asserts a conceptual separation between what the law is and what it ought to be. It contrasts this with natural law theory, which rejects the separation thesis and argues that the moral validity of a law is part of its legal identity. The paragraph clarifies that legal positivism does not claim law should be devoid of morality but simply states that the existence of law is independent of its moral value. It also critiques natural law theory for its convoluted explanation of law resistance, such as Martin Luther King Jr.'s actions, and posits that legal positivism offers a clearer understanding of the distinction between law as it is and law as it should be.
Mindmap
Keywords
💡Jurisprudence
💡Legal Positivism
💡Social Phenomena
💡Elevator Rule
💡Natural Law Theory
💡Separation Thesis
💡H.L.A. Hart
💡John Austin
💡Martin Luther King Jr.
💡Descriptive vs. Normative Facts
Highlights
The law school curriculum in English-speaking countries focuses on landmark U.S. cases like Marbury v. Madison, Plessy v. Ferguson, and Brown v. Board of Education.
Third-year law students in the U.S. can take jurisprudence, which is the philosophy of law, with legal positivism being the dominant theory.
Social phenomena, such as money, rely on the continued thoughts and actions of people for their existence and value.
Legal positivism asserts that law is a social phenomenon, sustained by human actions and thoughts.
Examples of social phenomena include money, fashion trends, and etiquette rules like the elevator rule.
Objects like tables, created by humans, do not rely on human thoughts for their continued existence, unlike social rules.
Legal positivism explains law as something created and sustained by human social actions and psychological states.
John Austin's theory of law involves issuing commands, threatening sanctions, and habits of obedience, all of which are social facts.
HLA Hart's theory of law involves a hierarchy of primary and secondary rules, which are social rules explained by patterns of behavior and mental states.
Natural law theory posits that law is partly a moral phenomenon, requiring moral facts to determine legal facts.
Martin Luther King Jr.'s assertion that 'an unjust law is no law at all' aligns with natural law theory, which holds that immoral laws are not true laws.
The separation thesis in legal positivism contends that there is no necessary connection between law and morality.
Legal positivists argue that laws can be understood independently of their moral value, whereas natural law theorists believe moral facts are essential to defining laws.
Legal positivists can clearly distinguish between what the law is and what it ought to be, whereas natural law theorists cannot separate the two.
There are two main ways of stating legal positivism: the social thesis (law as a social phenomenon) and the separation thesis (distinguishing law from morality).
Transcripts
most of the law school curriculum in
English-speaking countries focuses on
cases in the U.S it's often landmark
cases like Marbury V Madison Plessy V
Ferguson Brown V Board of Ed and court
cases involve specific events that
happen to real human beings and they're
concrete enough to wrap your head around
but when law students reach their third
year at least in the United States they
have the opportunity to take
jurisprudence which is just a fancy term
for Philosophy of Law the dominant
Theory at least today in jurisprudence
is legal positivism
third year law students often find it
very difficult but I'm going to explain
it to you right now the first concept
that we're going to need is that of
social phenomena by which I mean things
that depend for their existence on the
thoughts or actions of people for
example money here's some of my money I
brought it in as a prop this is a piece
of paper and if all of the human beings
in the whole world disappeared today
this paper could still keep on existing
at least for a while until like the rain
and the wind wore it down and turned it
into like a dust of of molecules or
whatever but its status as money depends
on the continued thoughts every minute
of people you know at least throughout
the United States of America what makes
this money is the fact that people think
it's money if I go to the store and hand
this piece of paper to someone then
they'll give me some candy but if
everyone stopped caring about these
pieces of paper if they stopped giving
me candy when I handed them the money
then it wouldn't be money anymore
the value of money is a social
phenomenon its existence the fact that
the money has the value that it does
depends on the continued actions and
thoughts of people does that mean that
it's not real no it's real let me tell
you the value of money is a real thing
like I really can get candy for it or
jet skis or whatever you can buy with
money you really can buy it so money is
real its value exists it's a totally
real thing it's just a social thing
another big category of social phenomena
would be things like fashion trends
those pants are fashionable because
people think that they're fashionable
there can be social phenomena that need
human beings to think a certain way in
order for them to exist but humans don't
even know that those things exist and
that their thinking keeps them in
existence
the one example of this that I could
come up with is what I call the elevator
rule this is a rule of etiquette I guess
when you go into an elevator what you're
supposed to do is turn around and face
the door this is a social Rule and its
existence depends on people thinking a
certain way the reason that you're
supposed to face the door and that
everyone else would think you're super
weird if you just walked into the
elevator and faced the wall or faced an
M the reason people would think that's
so weird is because there really is this
rule but this rule relies for its
existence on the thoughts of people
people follow this rule their own
thoughts sustain the existence of this
rule without them even knowing it you
probably just go into elevators and
stand a certain way facing a certain
direction with a certain orientation you
do that automatically without anyone
having ever told you oh this is what
you're supposed to do so there really is
this rule that relies for its existence
on our thoughts even though we don't
don't in a certain explicit way think
about it at all
and one other important point is that
there are things like tables these
things were created by human beings like
you could imagine a wooden table that
someone made with their actions with you
know a saws and Hammers and nails and
that sort of thing this table is not a
social phenomenon in the way that I'm
thinking about it although the table
relied for its initial existence its
creation it relied on the actions of
human beings it doesn't rely on human
beings for its continued existence if
all the people on the planet Earth
disappeared tomorrow the tables would
keep on existing but the rules for
elevators those would stop existing at
the very instant that the people went
away and the fashion trends would cease
to exist and the value of money would
cease to exist
returning to Legal positivism that is
just the thesis that law is a social
phenomenon it's like money or etiquette
or the elevator rule or the game of
basketball or whatever it's a thing that
human beings created and then we sustain
it in its existence legal systems only
continue to exist because we do things
and think certain things legal facts
that is facts about what the law is are
ultimately social facts for example the
fact that crossing the street not at a
crosswalk is illegal Depends for its
initial existence on some statute
someone wrote something in a law book
and then the Congress all voted to make
it law those are all social facts facts
about what someone wrote in a book which
people raised their hands at what time
those are all facts about human thought
and action and that law continues to be
law because enough people think in their
minds this is the legal system I accept
this legal system whatever the person
wrote in that legal book through the
right procedure that's the law certain
human events created the law and then
certain human psychological States
sustain that law in existence in the
most general terms the positivist social
thesis is that what is Law and what is
not is a matter of social fact those
words were written in 1979 by the
utterly inimitable Joseph Raz one of the
great legal theorists of the last 50
years okay that's fine if that's all
that legal positivism turns out to be
it's going to turn out to be a little
more than that but at this point we
might wonder why it's called positivism
the word posit usually means to suggest
or assume or put forward a thesis but in
this case the word posit is being used
in this kind of weird way to mean to
think something into existence so legal
positivism is just the view that law is
something that was posited into
existence by human thought if we now go
back through the most famous theories of
law of the last 200 years we can see
that many of them are versions of legal
positivism John Austin's Theory which he
really stole or borrowed from Jeremy
Bentham his theory is a version of
positivism why
Austin's Theory explains the existence
of legal systems in terms of basically
three ingredients issuing commands
threatening sanctions and habits of
obedience I explain Austin's whole
theory in a previous video lecture
Austin thinks he can explain what makes
a legal system exist just in terms of a
certain combination of people saying
some commands like a like a king or a
sovereign or someone has to order some
people to do something they have to back
those orders up with the threat of
punishment and then also what makes them
the law Giver what makes them The
Sovereign is that other people have
certain habits of obeying them from this
very brief summary you don't have to
understand Austin's Theory or why it's
powerful But ultimately flawed or
anything you don't have to understand
any of that all you have to understand
is that like oh he's explaining this
thing legal systems in terms of human
actions all of these are things that
people do and as long as people keep
doing those things in the right
combination there exists a legal system
and so if that's your theory of law then
you're explaining law entirely in terms
of social facts facts about what people
do and so Austin is a legal positivist
and the same is true of the even more
famous and more important theory of HLA
heart about whom I wrote half of my
dissertation
heart explains law in terms of a
hierarchy of rules there have to be
these social rules they have to be
structured in a certain way with primary
rules and secondary rules that are about
the primary rules if you want to
understand all of this then you have to
watch the lecture video that I made
about HLA heart heart thinks that there
are social rules like that social rule
that says that you have to face the door
in the elevator there are social rules
that need to be structured a certain way
and those social rules are themselves
explained on his theory in terms of
patterns of behavior and attitudes
mental States the states of people's
minds that's what makes these social
rules exist as long as these social
rules are arranged in a certain very
specific way then you have a legal
system Hearts Theory therefore is
ultimately a psychological theory of law
it explains the existence of legal
systems in terms of thoughts in terms of
psychology but the thoughts and actions
of people well those are the those are
social things those are social phenomena
and so Hearts theory is also a version
of legal positivism
okay fine that doesn't seem that hard
that's legal positivism but what's like
the alternative
the alternative Theory the theory that
competes against legal positivism in
jurisprudence at least for the last few
hundred years is called natural law
theory now the phrase natural law theory
gets used in ethics to mean something
different we're talking about in the
philosophy of law where this phrase
means the idea that law is partly a
social phenomenon but it's also partly
inherently a moral phenomenon
the idea generally behind natural law
theory is that legal facts are
determined ultimately by social facts
and by moral facts to see what this
means think back to the example of the
law against crossing the street outside
of a crosswalk according to the
positivist the fact that that law is law
is explained entirely by social facts so
by the fact that someone wrote in the
law book and all the people raised their
hands those are social facts about where
their hands go and that people enough
people think that that's the legislative
body with legitimate Authority and so
all of those social facts the thoughts
of the people the the handwriting the
raising of the hands to vote all of
those social facts come together to make
it the case that it is illegal to cross
the street somewhere other than at a
crosswalk the natural law theorist will
tell the whole same story about writing
the law in the law book and everyone
raising their hands all that social
stuff but then they'll add an additional
condition they will say that that law
only exists because it is not
sufficiently immoral if it turned out
that the one true moral law set out by
God or nature or Justice itself or
whatever truly prohibited this kind of
law it made it an offensive evil law
then that law would not be law at all
famously Martin Luther King Jr was
imprisoned for engaging in non-violent
demonstrations against racial
segregation and he wrote a response
while he was in jail in Birmingham
Alabama he wrote this response it was a
response to certain White Community
leaders and church leaders who were
urging him and his followers to sort of
you know use caution and don't upset
anybody and yeah this racial segregation
is not so great but like don't get too
upset about it and his response was his
famous letter from a Birmingham Jail I
would agree with Saint Augustine that an
unjust law is no law at all at least on
a Surface reading the sentiment that
he's putting forward is the natural law
sentiment the idea that if some law
violates some you know deep moral
prohibition then that law is not law and
if that's correct then law is not a
purely social phenomenon there are
certain moral constraints on what counts
as law okay now we're getting into the
interesting territory legal positivism
is contrasted with natural law theory
and because of this contrast there's
this other way what's called the
separation thesis another way of stating
what positivism is on this way of
articulating positivism it is the
contention that there is no necessary
connection between law and morals or law
as it is and law as it ought to be
that's HLA heart he's like the best he's
my favorite you know
what's being separated it's the facts
about what the law happens to be like
what is illegal and what is not illegal
that is being separated from what should
or should not be legal or illegal
another way to draw this distinction
with a certain bit of jargon is as the
difference between descriptive facts and
normative facts and you can see how
natural law theory has to reject the
separation thesis natural law theory
says that there's this moral check on
what counts as legal and so in order to
figure out what the law is you have to
figure out what the law ought to be you
have to figure out the moral facts
because you can never know if that law
really is law according to natural law
theory unless you know whether it would
be totally evil for that thing to be law
remember according to these natural law
theorists like Saint Augustine born in
the year 354 or maybe Martin Luther King
Jr an unjust law is no law at all and so
you really can't draw this distinction
this separation between what law ought
to be and what law is because what the
laws are is in part determined by
whether or not they meet these moral
criteria positivism because it says that
law is a purely social phenomenon there
are no moral constraints on it in
principle therefore there's this there's
this conceptual separation you can
figure out what the law is before or
separate from figuring out what the law
ought to be okay so does that mean that
like legal positivists think that law
should not be informed by morality no no
no no no no no no no no no that's not
what they think I mean that's the first
thought that most students most law
students will have when they hear
everything that I've just said but
that's not the view hold on positivism
is just a theory about what law is it
just says in order for a law to be law
it doesn't necessarily have to be
morally good now a positivist can then
go on to say that oh well yeah sure that
terrible law is law it's just a terrible
one it's evil and we should get rid of
it Martin Luther King for example he
could resist a legal system he could
disobey its laws he could point out that
some laws are morally egregious he could
do all of that while being a legal
positivist indeed the legal positivist
will claim that they have actually a
better clearer way of saying what Martin
Luther King Jr was up to because the
positivist thinks that these are two
different things what the law is and
what the law ought to be the positivists
can just State the case like this like
look there are these laws they require
whites and blacks to use different
facilities different train cars
different drinking fountains they make
interracial marriage illegal so on and
so forth that's what the law is and
those laws are evil what the law ought
to be are things that treat people of
different races equally but because the
natural law theorist thinks that there
are moral constraints on law they have
to do this kind of weird thing to
explain what Martin Luther King Jr or
anyone criticizing or resisting a law
was up to they have to do this weird
thing where they say these
segregationist laws weren't laws they
were almost laws and so Martin Luther
King Jr wasn't breaking any laws really
it's just that everyone thought he was
breaking laws and he didn't want to
change what the laws were because of
course according to the natural law
theorist those were never laws because
they were truly immoral and there's this
moral constraint on what law is and so
he wasn't trying to change the law he
was just trying to get other people to
realize what the law was all along
that's the sort of weird thing that the
natural law theorist has to say because
they don't hold the separation thesis
the positivist can just state things a
lot more clearly and they claim that
this is an advantage of their view
there's what the law is and it's all
this segregationist stuff and then
there's what the law ought to be which
is not that segregationist stuff do you
see why natural law theory has to give
the answer that Martin Luther King Jr
wasn't breaking the law because truly
moral laws aren't laws right remember he
said it an unjust law is no law at all
well if that's true then he wasn't
breaking the law but he's in jail and
all the judges are gonna you know bang
their gavels and convict him or whatever
it just seems more sensible at least to
the positivist to say no he broke the
law but he did it because he had a moral
Vision he understood that that law was
an evil terrible law and he had the the
courage and the foresight to to resist
it okay so the main takeaway from all of
this is that there's actually two ways
of stating at least two ways there's
actually many more but there's at least
two main ways of stating what legal
positivism is
there's the social thesis that's what we
started with the idea that law is a
social phenomenon or that legal facts
are ultimately social facts and then
there's this separation thesis which is
also a way of stating basically the same
view but that this separation thesis
really makes sense or it sort of comes
about once you contrast legal positivism
The View that all you need to figure out
what the law is are social facts you
contrast that with natural law theory
which is the view that in order to
figure out what the law is you need to
look at the social facts but you also
need to figure out what morality itself
demands okay so if you understood all of
that then you're like way ahead of the
game
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