Legal Positivism - the dominant theory in jurisprudence

Summary

This 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.