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.

Outlines

00:00

📚 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.

05:02

📜 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.

10:03

🛑 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.

15:03

🔍 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.

Keywords

💡Jurisprudence

Jurisprudence is often referred to as the Philosophy of Law. It is the study of the nature, sources, and concepts of law. In the context of the video, jurisprudence is introduced as a course that third-year law students can take, which delves into abstract theories of law, contrasting with the more concrete case studies typically covered in law school curriculums.

💡Legal Positivism

Legal Positivism is a theory in jurisprudence that emphasizes the social origins and authority of law, independent of its moral value. The video explains this concept by stating that law is a social phenomenon created and sustained by human thought and action, such as the establishment and enforcement of legal systems through statutes and social acceptance.

💡Social Phenomena

Social phenomena are things that exist because of human thoughts or actions. The video uses the example of money to illustrate this concept, explaining that its value as a medium of exchange is a social construct that depends on collective human agreement and behavior.

💡Elevator Rule

The 'elevator rule' mentioned in the video is an example of an unwritten social rule that dictates behavior within an elevator, such as facing the door. It is a social phenomenon because its existence and observance depend on people's shared understanding and adherence to this norm, even if they are not explicitly taught it.

💡Natural Law Theory

Natural Law Theory is presented as an alternative to Legal Positivism. It suggests that law is not only a social construct but also inherently tied to morality. The video explains that according to Natural Law Theory, the existence of law is influenced by moral facts, implying that a law that is immoral may not truly be considered law.

💡Separation Thesis

The Separation Thesis is a concept within Legal Positivism that posits a distinction between law as it is (descriptive facts) and law as it ought to be (normative facts). The video contrasts this with Natural Law Theory, which does not accept this separation because it believes moral considerations are integral to determining what the law is.

💡H.L.A. Hart

H.L.A. Hart is a renowned legal philosopher whose work is central to the discussion in the video. Hart's theory of law is described as a psychological theory that explains the existence of legal systems through patterns of behavior and attitudes, which are social phenomena. His work is foundational in understanding the Separation Thesis.

💡John Austin

John Austin is another legal philosopher mentioned in the video, known for his command theory of law. Austin's theory, which the video suggests was influenced by Jeremy Bentham, is a form of Legal Positivism that explains the existence of law through the issuance of commands, threats of sanctions, and habits of obedience.

💡Martin Luther King Jr.

Martin Luther King Jr. is referenced in the video in the context of his resistance to unjust laws, particularly racial segregation. His famous quote, 'an unjust law is no law at all,' is used to illustrate the perspective of Natural Law Theory, which contrasts with the Legal Positivist view that a law's existence is separate from its moral value.

💡Descriptive vs. Normative Facts

The video discusses the difference between descriptive facts, which describe what is, and normative facts, which describe what ought to be. This distinction is crucial to understanding the Separation Thesis in Legal Positivism, which argues that determining the law (descriptive) can be separate from determining what the law should be (normative).

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