Legal Positivism - the dominant theory in jurisprudence
HTML-код
- Опубликовано: 3 май 2023
- I am writing a book! If you want to know when it is ready (and maybe win a free copy), submit your email on my website: www.jeffreykaplan.org/
I won’t spam you or share your email address with anyone.
Austin's theory of law: • Hart - Concept of Law ...
Hart's theory of law: • Hart - Concept of Law ... and • Hart - Concept of Law ...
This is a video lecture that explains the central theory, for the last two centuries, in the philosophy of law: legal positivism. I created this additional lecture because I found that the standard readings on the positivism v natural law theory debate (often as exemplified by figures like HLA Hart, Ronald Dworkin, John Finnis, and Joseph Raz) were not enough to get my students to latch on to exactly what legal positivism is.
Fun fact: Jaywalking laws were implemented at the behest of automobile manufacturers. Prior to their introduction roads were public spaces anyone could use. Pedestrians, horses, carts and carriages would share the road. When the much faster cars came about the owners and sellers of those cars wanted exclusive use of roads so they could drive faster and not be obstructed. So the vast majority of people who were pedestrians were banned from using roads in order to benefit the, at the time small, wealthy group of car owners.
I am completely unsurprised by this… It’s the same with land ownership laws in my country - the wealthy landlords wanted to leverage the land they had for specific (more profitable) endeavours and were given the rights over the peasants, who were not well-educated enough to make a decent argument for why the common use of the land should continue.
Classism is at the heart of so much of modern day laws. It’s wild.
And it’s the law that you follow the pedestrian lane so that you don’t impose the cost of a car running over you and your inability to pay for it by using taxpayer money to help pay the hospital orders to take care of you because you did not follow the law. So you have a moral obligation to follow crosswalks so that you don’t impose that cost on your fellow man so there’s morality to that law too.
@@lenwelch2195 And yet people rarely obey jaywalking laws and also rarely get punished for it, so...
@@lenwelch2195 “So you don’t impose the cost of someone running you over” is wild lol😂 this law seems less like a moral one and more like one that’s also based in the concept of money.
@@MioMayhem you don’t pass off the cost of being irresponsible off on to someone else when you don’t follow the rules. Rules are there for a reason . You don’t get to do what you want. You must take responsibility for not following them that’s a lesson you learn when your 5. Grow up. There’s a cost in not following rules. You break the law then you must pay the price .
I've watched this man's entire playlist on Ethics, Introduction to philosophy, and philosophy of law. I'm not even a philosophy major I'm a Biology major. Please upload more
Could be time to change majors, or double major. A double major in bio and philosophy would be great for law (IP, environmental) or medicine (bioethics).
I studied philosophy as an undergrad, and then this video comes out on the day I get accepted to Cornell law school. That’s crazy haha
congrats brody. entering my final year of law school. it will wear you down but you will love it
WIMBLEDONJN 🎉
Congratulations from a philosophy undergrad who loved law school.
Congrats! That’s wonderful. Good school, you can end up being a solid attorney!
Justice Gambino Congrats to your Big Red law school acceptance. I attended Cornell undergrad years ago. I found Cornell to be...challenging...but not for reasons you might expect. If you are like me, you may find the left leaning atmosphere at Big Red unsettling, as I did, especially with your philosophy background. An old friend who attended Cornell law school while I was an undergrad there told me he had a professor who greeted his students on their first day in a way that haunted him for years.
The professor entered the lecture hall a few minutes after the very first class was to begin. He proceeded to approach the chalk board (35 years ago there were chalk boards) and wrote, in 3' tall letters, the following;
J U S T I C E
After a few moments of amusing himself watching the students' confused expressions, he then suggested the class take a good, long look at the chalkboard. He then erased the word, "JUSTICE," while commenting that his students remember what they had read as it would be the last time they saw justice in their legal careers.
Food for thought.
In civil law systems (as opposed to the common law systems of the UK and US), most emphasis is put on written law and much less on case law. It is also held to a high significance that courts judge only by the law. In these systems, as well as in the Nuremberg trials as some have pointed out, the Natural Law Theory creates an obligation for justices to evaluate the eticality of legal rules. In civil law systems the Legal Positivism Theory does not grant courts the option to not punish people for breaking immoral law, unless it is specifically stated in said law. I found your description of the Natural Law Theory just a tad bit biased against it. This comes from a man who loves H.L.A. Hart's work too, but who also views it as limited to his theoretical background within the common law systems.
Doesn't some of modern EU law also include 'intent' on the basis that the negotiations and discussions of the law creation was public enough that intent can be known beyond the clinical written word.
I've also heard it said that UK's case law is still 'written law', and such cases convert intangible concepts into tangible examples to better cut the fog with.
@@philipoakley5498 Yes, but that intent can be extrapolated from the materials concerning the drafting of said legislation. For example EU Regulations and Directives contain a preamble, which is usually quite lengthy and goes into some detail covering the issues which are being legislated and what the aim of the legislation is in that aspect. Often reading the preambles helps while trying to figure out what a specific article means to say. Further, if you deep dive, there can also be public discussions or other materials prior to the draft or there can be secondary acts by EU bodies or regulatory institutions, which provide further instructions and clarifications on the points made within the main acts.
There's also legal analogy, logical and legal principles, etc, but this is more or less also "written" law,. For example in an analogy case you'd refer to a legal act covering a separate, but similar issue a certain way and apply its logic to the current issue, thus clarifying the intent. Or if you were to cite some legal principle - those would usually either be found in a legislative act of a higher rank or be some of the logical bedrock of the Continental legal system since Roman times (like "ignorance of the law excuses no one").
And then of course, there is court precedent, but its status is also sometimes fixed within written law and is generally not able to be used to contradict legislation. The legislator legislates, the judiciary judges based upon the laws enacted, that;s the balance of power.
I apologize if I rambled a bit, hope this was of use to you.
The idea of natural law is based on a ludicrous and wrong premise that in the nature there were some rights. In reality the life before civilizations was extremely violent. The violent death rate was hundreds of times greater than it is now in Europe. Human rights as we know are some 300 year old idea.
His explanation of natural law was very incomplete. It's not just positivism plus moral consideration. It's the belief that the universe has in it, by its very organisation, things that are objectively good and bad for reasoning beings.
A law system who claims it is the real moral order is very dangerous.
This discussion about what law is and is supposed to be also had a really hard impact in the aftermath of World War 2.
After the Nazis lost the war and the Allies started to prosecute all the German functionaries in Nürnberg, the defendants of the Nazi regime claimed that the surviving elites of Nazi-Germany couldn't be punished for their actions under the Hitler-regime because they were acting in accordance to the then German law. They rested their case an legal positivism.
Maybe you can describe “making excuse for not resisting against social fact” as “excuse for following law”
But Natural law theory could have an opposite problem, which is “excuse for not following law”
What ought to be law can differ depends on person. Some people might think they are trying to help the society, and not following the law , then end up being a fascist.
Not every one is as just as M.L.King
And they were probably entirely correct about their actions being completely legal. What they missed what that the conquerors could make up new laws out of whole cloth and apply them _ex post facto,_ as they did.
I mean....from that point of view I find it hard to reconcile the verdicts with legal normatives. They WERE doing what they are supposed to do. Compare that to the treatment of Snowden for example.
And the vast majority of them were either shot or hung.
The source of our disgust towards the actions of the Nazis can be traced back to Judeo-Christian beliefs. Dostoevsky, in his book "The Inquisitor", suggests that the Christian history of the Inquisition only troubles us because of our adherence to Christian beliefs. In other words, it is highly probable that the revulsion we feel towards the Inquisition is a result of the same Christian convictions that underpin our condemnation of the Nazi regime.
I think there's a somewhat analogous situation in discussions about art. There are people who say such-and-such is "not art" when what they're ultimately trying to say is they don't like it, and others who will say "of course it's art, it's just not good art".
Andy Warhol has once made a handmade box that looks exactly like a box for soap, which is of a rather common soap brand.
That soap box “thing” ended up completely breaking the boundary between art and non art object.
Maybe legal positivism can have similar problem as well.
@@user-lv8qn2mv3b Yes, I agree. Duchamp's 'Fountain' (1917) is another key example that comes up in these kinds of discussions.
Art is an extremely subjective science much more so than say, the sweet science of pugilism.
@@cavalrycome The removal of the artist's hand from a piece of artwork does renders it null and void from being called Art.
Your perfect example is Marcel Duchamp's 'Fountain', which was merely an upside-down urinal that Duchamp signed and deemed art.Pop Art, including pieces like Warhol's 'Velvet Elvis' or his 'Campbell Soup Cans', could be viewed as an attempt at creative expression, but it's very low brow Art. The modern Art movement is littered with such low-brow resolutions of Artwork
@@ad4id Art is supposed to make you think or feel. The fact that you have many thoughts and feelings about an upside down urinal, or painting of canned soup was the artists intention, and as such is very effective art, although I would agree it is not necessarily good art.
Im currently in my last year of studiying law at university of Chile, also im assitant professor of the class "introduction to law", and I have to say that this video summarizes incredible well in 20 minutes what i have to teach to new students in one year.
amazing video !!!
But the video largely misrepresents Natural law theory - most legal naturalists would agree that MLKJ was breaking the positive law, however, they would argue that the positive law should not be applied by the courts because it breaks his natural rights.
On this account, if you consider the two theories from a functional perspective, it is conceivable that the differences between them are entirely semantic. Consider: if you view the law as morally indifferent, but believe that you should follow good laws and not follow bad ones, that is not functionally different from believing that you should always follow the law, but that bad laws aren't actually 'laws' at all (lex mala, lex nulla). Given the same inputs (laws or purported laws), you would come to the same conclusion as to whether they should or should not be followed (based upon either the conviction that they are bad laws, or that they aren't laws at all).
Thank God, I was literally about to type and explain this entire thing. While the video is a good analysis, he continuously brushes over this fundamental truth. He also clearly misrepresents the natural law theory by not clarifying that it practically means you don’t follow the bad law, because God’s greater law contradicts it. I don’t think legal positivists would want to say that if law is not what it ought to be, then it should still be followed before it is changed. If you take that principle to the extreme it’s pretty clear that it’s better to not follow bad laws.
Ya functionally they’re no different. I think the only real difference is positivism basically says true laws are simply what’s in the law book (or maybe just what’s enforced at least?) where as natural law says laws aren’t what’s in the law book, they’re the rules for what’s good and the law book is just a goal to write down laws but isn’t necessarily always right. Which I agree is basically semantics and they both conclude “get rid of bad laws” and “follow good ones” and to be honest natural law theory seems to be a more philosophical theory about the nature of societal rules where as positivism is more of just a description of how legal systems actually work.
Functionally the same, ontologically very different. Ontology is what differentiates the theories, not function.
@@andrewj22 Given the close relationship between ontology and semantics, I think I would agree.
@@gianwagner1367 Gods greater law ? Whose God are you talking about ?
Dear Professor Kaplan - thanks a gazillion for these expositions; the best I've ever encountered, and believe me I've "encountered" a few. Much obliged.
And if I understand all of that and am indeed way ahead of the game it's because you gave me a push ahead. Thanks Jeffery, you are an amazing help in so many ways.
I am so happy that I found your videos. I just watched the one on set theory and I the best way I can describe my reaction is "grateful." Again, Thank you.
Great video. You did a great job at explaining this very complex topic. What I would like to add is the jurisprudence of neo-natural law theory (unsure about this translation) as a response to the risk of amoral laws of legal positivism. Basically, the problem occured in nazi-germany where you would have people that lived in an amoral legal system and complied with those laws and therefore acts amoral but legal. Now, when the allied forces wanted to get these people convicted they would claim that they did nothing illegal - ignore international conventions for now - so they had to come up with a response to that. I recommend judge Jacksons texts from the Nuremberg tribunals if you are interested in this problem.
I concur. with one observation.
Our fear and disgust towards the Nazi regime stem from Christian beliefs, as the question of what exactly is wrong with the Nazi ideology cannot be satisfactorily answered through logical positivism. If one adheres to a society-based ethical system where trampling on the weak is acceptable, then there is no inherent moral problem with such a stance. However, if we acknowledge the presence of objective morality, a very Christian view of right and wrong then the creation of such a society would be deemed immoral.
@@ad4id Morality doesn't have to be objective or Judaeo-christian to consider Nazi ideology bad. It's perfectly reasonable and consistent to think that all people deserve freedom, basic rights, etc. and to think that is so primarily for the overall good of society in a technological, information rich world. In different circumstances, maybe slavery, genocide, cast systems, etc. would be a reasonable and consistent morality for the good of (the dominant) society. There are some strong arguments for utilitarianism being the engine behind morality, which can be highly dependent on the social scale at which such morality is applied in the form of law. What is moral for a band of hunter gatherers, a city-state, a large nation, or a global trade culture may be vastly different.
@@ad4id Why does everyone think the world is centered around the west? Do you think that morality cannot exist in other culture and societies or something? It always baffles me, as a Chinese person to see westerners constantly think that there is only christianity and western culture without religion.
@@YSFmemoriesWhat's the basis of Natural Law in China? Confucianism?
@@Michelle_Wellbeck are we talking about the country or individual people?
I'm not very familiar with the law because I'm not a lawyer and I grew up in Canada.
But in terms of individual people, I don't think anyone believes things because of someone else's text, whether that's the bible or the confucius analects.
Rather, we are born with a conscience, and we gravitate towards systems that we are aware of, and match our conscience well.
But certainly a lot of Chinese society was built on Confucianism and the concept of responsibility rather than freedom.
At least until Mao took over and destroyed everything calling it "feudalist master-slave thinking".
Dear Jeffrey,
This morning, I stumbled across your video on Russell's Paradox. While at some point in my Mathematical education, way back in the '70s, I think we covered this, I couldn't recall what it was. So, I watched your video to "brush up." Of course, there was no Internet or RUclips then. Just books and, perhaps more importantly, Coles Notes.
I was so impressed by your succinct and impressively clear presentation of Russell's Paradox that I have decided to "Label" you as the premier 21st-century version of Coles Notes! I have happily subscribed to your channel and have spent much of today immersed in your videos. Your videos are like a visual version of Wikipedia because of casual comments like, "If you want to know more, I did a video solely on..." It's like those awful "down the rabbit hole" links on every Wikipedia page. You know, the ones you can't resist clicking on to find out what the term used actually means. Whew!
Thank you for investing your time and talent in providing such educational content. Oh, and by the way, I don't want to use the little brain space I have left trying to figure out how you appear to be writing backwards. Or what hand you are writing with, or whether you wear rings and which hand they are on. Or why you choose one colour of marker over another. Geez, Louise!
Again, many thanks!
Yeah, super impressive how well he can write backward. Lol. I thought the same thing for a heartbeat : ) He's just flipping the video post-production. (or is really obsessed with DaVinci)
For what it's worth, I really liked your older videos that are just you and your board, no overlays, no cutting to videos, just you talking to the screen. I find them very... comforting? It's your unique style, and I think it's just great. I'd recommend going back to that. Will watch either way, though. :)
I feel like this is relatively similar to what he had before, though. Either way, I myself like the new version! Perhaps you have nostalgia for the old version and that is the “comforting feeling” you describe.
Im on first year of law in Poland and jurisprudence is obligatory and your video really helped me understand it, thank you:)
Never realized I was a Law Posetivist because I always say a Law can't be a law if there are no repercussions for breaking it. It is a strong suggestion at best.
You need that Money stuff for fines and the like, otherwise it all become rather uncivilised ...
Reminds me of Jordan Peterson's advice to his son. If you don't like a law break it. But accept the repercussions.
A law can be a law even if there are no reprocussions for breaking it. So long as a norm has a hypothesis and a disposition it is Law; the presence or absence of repercussions for breaking a law is not a determining factor in the positivist understanding of what constitutes law.. This video also largely misrepresents natural law theory - most legal naturalists would agree that MLKJ was breaking the positive law, however, they would argue that the positive law should not be applied by the courts because it breaks his natural rights.
Ah, so this money-stuff gets me candy. No wonder this Musk guy wants all of it.
Beautiful 😂
It isn't exactly money. In Germany they learned it the hard way.
Well, who doesn't want it? I want it for my existence and if i am earning it by my hard work, i am definitely entitled to it. So sorry, i didn't got what you meant to say, i mean you don't want money?
You're right to not focus on what money is, but instead, of what money does. For the crucial fact about its nature is that money is a technology, or procedure, devised to manage trust, trust that a creditor will be repaid. One could say it is the operating system on which we run our economies. For to trust is to have a belief in someone, to credit him, and if they are obliged to you, they are in your debt (hence, credit and debt) - a fact clearly asserted by the Knights of Malta, when in 1565 they stamped this motto on their coins: Non Aes, sed Fides - Not the Metal, but Trust.
“The problem is that money is not really a thing at all but a social technology: a set of ideas and practices which organize what we produce and consume, and the way we live together. When it comes to money itself - rather than the tokens that represent it, the account books where people record it, or the buildings such as banks in which people administer it - there is nothing physical to look at…But currency is not itself money…Coins and currency, in other words, are useful tokens to record the underlying system of credit accounts and to implement the underlying process of clearing [these accounts].” - Felix Martin
This is art bro
3:00 This "elevator rule" is highly conditional. In jails, inmates are forces to move to the back of the elevator and stare at the rear wall. They aren't allowed to look at or stand near the doors.
I've taken plenty of elevator where each person moves to 1 corner and then we all turn inward to look at the center and speak to each other. But in offices, looking at another person when speaking is rude. So we all face forward and only speak to the person directly beside us. Also, we speak in hushed tones since the echoes in that small, flat-surfaced space would seem very loud if everyone spoke at normal levels.
@@dispatch-indirect9206 who's talking about picking stuff at "random"? Lol
@@dispatch-indirect9206 I agree about the elevators, weak example. But there are clean examples of very arbitrary choices, which were arbitrary even at the time the decision was made (electrons being negative for example). You can also differentiate between customs that may have once had more justification, but that justification is no longer applicable and the custom is maintained now just for consistency with the past/other people.
The english alphabet or arabic numerals maybe had justifications for each evolution to their current form, but none of those are meaningful anymore - '4' means what it means just because folks say so.
One of the most amazing things is that my teacher explained this in (almost) the exact same way, but it took him almost 45 minutes
Well, maybe because the video was edited whereas in real life there could be other external factors like pauses, questions, drinking water, etc. This video may be 18 minutes long but it's making wash sure much longer accounting for the cuts that were removed.
If I ever wanted to go back to get a law degree, you would be one of the profs I’d want.
Kaplan, the great explainer! Love your videos! Please make more on jurisprudence.
This is very helpful to a European law student. I have a strong feeling that some of our law professors dont understand the positivist legal theory properly, or atleast cannot explain it properly. This explanation makes much better sense. However, natural legal theory is understood here quite well it seems, or maybe in contrast, we put more emphasis on it. I think it might be due to European legal system when it comes to protection of human rights, in which it seems to be the farthest developed.
This is a fantastic breakdown, and I thank you for it. I will refer people to this in the future.
There's a tension in Americans' ideas about the law (not to exclude others from this, just speaking about what I know) that arises from the Declaration of Independence -- which is steeped in "Younger Jefferson's" natural law ideas, and the Constitution (Madison and "Older Jefferson"), which is rigidly positivist.
Because of this, I think, natural law theory in the US has become the tool of sovereign citizens, tax cranks and others of that sort. But taken broadly, natural law is "autobiographical" -- you learn a lot about who someone is by what they will *claim* natural law theory demands. Seven people will give you eight different and inconsistent opinions about what natural law means.
I jokingly tell people that the best summary of legal positivism is "the law is the law because that's what the law says the law is". There is no analytical solution or reductivist underpinning supporting the rule of law. Law is necessary to civilized society, so there must be a source of law and enforcement of law. "Government" is just the term we use to describe the system that fills those functions. Ideally, it ought to be just and moral, but it can't be perfect (because it's run by human beings).
So we need a system that gets as close as possible to objectively moral law. Churchill (allegedly) said that democracy is the worst system "except for all the others that have been tried".
My personal opinion is that legal positivism does offer a "cleaner" picture of "what the law is". But sometimes disobedience of the law is the morally correct thing to do.
Don't forget "What the law is " is also a social phenomenon that depends on the thoughts and judgments of people just like morals.
Ty, well written and sound logic.
@@sibusisomagagula3633 Definitely the case when there is a longer history, so old laws fall into disuse. I'll not be practising my longbow today ;-)
A system of Natural Law could never be agreed upon by all of society as people have different ideas about what are "moral facts". It would also be difficult to change once a particular dominant group forced their moral system on everyone else. You wouldn't be able to tinker with it, or take account of changes in attitudes, because the "moral facts" underpinning it are considered objective and unchanging.
Isn't the objective moral law you want to get closer to just natural law?
It’s not so much of an arbitrary rule about facing the front in an elevator. It’s simply the most logical direction to face since you have to turn around to push the button of your floor, and it makes sense to be able to see when the doors open.
As an aside, the original version of candid camera did a segment where they hired actors to face left or right, or the back wall in an elevator and the unsuspecting marks would, after a brief period of discomfort, typically conform, and face the same way as the actors. Psychology is fascinating.
All social psychology returns in the end to Asch.
In Europe the definition of jurisprudence is far more broad than just a philosophy of law. It is understood as a science about the law in all of its theoretical and practical aspects. Majors in law in many European countries are called majors in jurisprudence.
😅
Probably beyond the scope of an 18 minute RUclips video.
I kind of wish I watched this before I started my Jurisprudence readings this week...
Statutes deliberately incorporate the bias and prejudices of those in authority, while natural law explicitly attempts to eliminate the bias and prejudice. Legal and lawful are NOT synonyms.
The "elevator rule" is that we face in the direction threats are most likely to come from.
very grateful for this channel
I’m not sure if curriculums differ a lot, but in my jurisprudence last year, the dominant theories are the critical theories (CLS, CRT,CQT) which is loosely like what positivism is to natural law.
Excellent Video. Legal Positivism incorporates Morality INDIRECTLY. Natural Law DIRECTLY incorporates Morality.
I would say that legal positivism CAN incorporate morality (indirectly). It doesn't have to talk about morality at all. Natural law, on the other hand, is inescapably about morality.
@@BiznizTrademark *Wait!* If legal positivism is strictly descriptive, then not only is it the case that "what the law _is"_ may be different than "what the law _ought to be,"_ but it's also the case that the law has *no bearing* on how we ought to behave (aside from practical considerations that some people may be inclined to punish us for certain behaviours). If the law isn't normative, then there's absolutely nothing wrong with breaking it.
This looks like a serious problem for anyone who practices and enforces law. The law is ultimately a social delusion and there's no justification for broadly enforcing it. It's not unreasonable to think that "what the law ought to be" is _"abolished,"_ and that coercion (by the state or otherwise) is fundamentally and universally immoral.
Legal positivism provides no grounds for disagreement.
@@andrewj22The positivist believes the law has no *inherent* morality that you should obey it. But it certainly does carry all of those social aspects (the cops and judges and prisons) that provide very strong reasons to obey (very Austinian). But it is certainly possible for the law to align with the morality of the man, and in most cases it does.
I would say you are right that there is no inherent reason to obey laws, but that laws are typically obeyed because they are aligned with moral values/principles/laws of the society **and** because they carry the force of the legal system.
Legal positivism is objective in a clear way. The law says what it says, it's applied how it's applied. Natural law is not objective in any clear way. It's all definitions and arguments.
@@someonenotnoone Definitions and Arguments are the law.
Great presentation. Thank you so much.
If a behaviour is present in the absence of socialisation, is it still a 'social behaviour'? An example being the 'elevator rule' where a participant will naturally face the entrance of any enclosed space to ensure their own safety.
It depends on the motivation of the behavior. If you face the elevator door because of a survival instinct or because logic dictates you, then it is not. If you face it because you saw from others to do it or you heard that it is the normal, then it is. A newborn child who grow up without knowing anything about elevators, will probably not face the elevator door, unless it's a surprise that the door is closed automatically.
The elevator in my building is mirrored so I can face the wall and keep my eye on the psychos riding with me.
Great work, thanks.
Eagerly waiting more on Legal Positivism - recent SCOTUS news made the area quite negative. Lame joke apart, I really would like to learn more - thanks!
Wow I’m really early and i didn’t even realize! Great job man
In the end it still applies: the one with the most and fittest followers wins. The law is only in place to give a sense of certainty because some mentally and physically fit people realised they might loose their fitness and a law helps them to remain in relative peace.
2:49: No, the reason we turn around to face out when we get in a lift is because the buttons are next to the door! We turn around so that we can see the buttons & our hand is adjacent to them. The reason why the buttons are next to the door is because if they were on the back wall of the lift, someone entering a crowded lift would have to fight their way through the crowd to push their button. US building codes do not allow buttons on the side of the lift, but European countries often do, & in these lifts, people face whichever side has the indicator that displays the current floor, be this the side of the cabin or the front.
My inner 14 year old would be ecstatic if somewhere in one video he concluded a sentence with “en sh!t”. Love watching your videos.
ur my fav professor!!
I love this lecture. It illustrates beautifully why MLK Jr. was such a great man. I call MLK Jr. a mystic. that is the highest praise I can offer a man. He saw the higher law. He stood for the right though the heavens fell on him. He was murdered. Terrible end, but he died believing in his cause. I believe in men like him. We need many more like him. But they need to have a dream like he did. MLK Jr. had a dream. It was a dream worth dying for.
And it illustrates beautifully the nature of natural law. And why natural law is above all other laws. Sadly, the transitions are frequently rough going. Most Mystics are dead by age 40. That is rough going.
Hello! Thanks for the amazing description! But could we in sepration theory call nominative law as legislation? And descriptive as law?
You're an excellent teacher. I'm happy I found your work here.
Your voice always reminds me of Kieran Culkin’s. You sound like a really nice Roman Roy. Oh, and I also love your videos. 😊
Thank you so much Mr. Kaplan, very clear explanation!It is really thought-provoking
Terrific explanation.
Reminds me to my favourite Philosophy Tube video about Social Constructs... :)
I feel like a lot of confusion might come from the assertions of what’s “real”. But you don’t do much to untangle that stuff. Maybe words like objective, subjective, transjective might be helpful tools here. And discussing why some people agree or disagree with your assertions that something is “real”, might help provide a clearer picture too
I also think, because this is both helping students pass their classes, *and* framing a way to think about the world, that it might be useful to discuss how the framing is insufficient, or how it makes assertions about the world that are different from everyday experience.
But also that’s a lot to put into a video, while keeping it short, and keeping the viewers interest, and it doesn’t consider how these videos you’ve made are already an impressive impressive achievement
Dude it’s so weird I just came across this video. About a month and a half ago I had this exact conversation about how money is just a social concept with my 7th grade students.
Really fascinated with your simple yet in depth explanation.
I've read Hart and it's fine. But now I find Natural Law Theory interesting, and the power of Martin Luther King Jr's saying is evidence of its strength.
legal positivism is what is, but natural law theory is what ought to be. Simple.
Everyone believes law should be influenced by morality, but they differ on the manner of that influence. Positivism would hold that law should be used to bring about good outcomes, that you ban something if we'd be better off if people didn't do it, while Natural Law theory would hold that you ban something if it's immoral. As good outcomes are the goal of morality, in a logical world these two would be materially identical, but I'd vouch for the Natural Law position as safeguarding better against human fallibility: you cannot predict the future, and people are naturally prone to act out of self-interest & need principles to curb that.
This just sounds like an argument of what the definition of "law" is. It's likely that a naturalist would say an "immoral law" is called something else besides law, like a "decision" or something. When a positivist says something is a "just law", it's the same thing as just a "law" for a naturalist. It sounds like they just have different words for the same thing.
Positivists don't talk about the "justice" of a law at all. They consider it a separate issue to the law itself and its application. The "justness" of a law is for the lawmakers to decide, and change if they want.
Thanks, it's very easy understand from you, thanks,
The stretch with positivism is that some laws were posited by generations long gone, with the forethought that those laws may be unpopular, but are moral and may protect a minority. Now people are forced to follow that law because it is integral to the legal system even though if we took a vote, a majority might say, we don't want that law anymore.
I think that your founding fathers set the bar for amending the Constitution too high.
The elevator rule is really a function of the form( Neil Peart is a lyrical genius). The floor indicator and exit are in the direction you should be facing.
The table is also limited to a function of the form, while it may still exist without humans, I doubt animals would use a table as a table. Retain its shape, but not its function.
Although due to persistent nature, a table would retain vague or ambiguous function, whereas money would have less than that. (what? fuel for fire?)
In the elevator example, I view it as a posit to get out of the elevator fwaster, a planning ahead of "by turning now, I will be ready when door opens" which is a similar rule to "sit at the table always facing the door, in case trouble walks that way/has entered the building, you'd be aware".
_"when a wandering stranger, friend or foe, might come in at any moment. And sometimes that foe might be known, well armed and accompanied by his band of ne’er-do-wells. It was a matter of survival that the man and his warriors face the door and position themselves along the walls where their weapons were placed."_
This can be further simplified by the locale/pub/elevator having positive known energy (you, friends,drinking) and the exterior or exit having negative or unknown energy (trouble, foe, cold), so even in Law of Physics some of these rules unironically would apply, given that warm currents, or in this case, people, would face towards the negative.
I TA'ed philosophy of law about a year ago at FSU. That there's an active debate on the nature and status of law (not what it should be but what it is) itself is a bit silly.
"The severity of the punishment is determined not by the gravity of the act but by the social capital of the group that sues and judges..."
Right on. Thanks for sharing.
Please do some review on Hans Kelsen's theory, sir... Thank you. 🙏
Excellent communication as always Mr. Kaplan. Thankyou.
Jaywalking is an interesting challenge to the idea of legal positivism, in my opinion. In many countries, people rarely get punished for it and police rarely punish people, despite the fact it is enshrined in law. In my hometown (a suburb of Washington DC), sleeping on the floor was technically illegal but we did it all the time at sleepovers or when family came and we wanted to give grandma the bed, etc. And yet, it is a social fact that people wrote some things down in a piece of paper. So what is the actual law? Some social critics refer to the law as "walking while black", some people in the comments have already begun talking about how the law is actually about giving automobile manufacturers and owners ownership of the road. Whatever the law of jaywalking is, it is not altogether what is written in the legal code. I think this is one of the problems with "social facts" in general. Their consequences are of course real, but I would argue that they aren't themselves entirely real the way, say, matter is.
Wow, that was the clearest explanation of Legal Positivism I have found yet. Thank you. Could you please explain in a video, how bad law is replaced by good law, and also, how do we prevent bad law from becoming law in the first place. What is the philosophy around safeguards, guardrails, and corrective measures in 'quality assurance?' As a software engineer, I am very familiar with quality assurance, process improvement, etc. in product design, but as legal neophyte, I cannot clearly see similar analogs in legal theory and practice.
You talked about a benifit of legal positivism, being easier to explain, but if you want to also hold that people in a civil society should follow the law, a big downside for legal positivism means that what MLK Jr did was unjustified or even immoral when he broke the law. It also obviously gives legitimacy to bad laws, which was a defence of NAZIs after WWII (what they did was legal at that time), but that was not accepted in the Nuremberg trials.
I would say the elevator example could actually be distilled down to the social law of efficiency where people should act in a way that is efficient or they're weird cuz turning away from the elevator door would mean that once the elevator opens you have to turn around to exit the elevator which why would you do that that's weird you had plenty of time to turn around while you were in the elevator
A good test for that hypothesis would be to see how often the "elevator rule" is followed under different social conditions. Do single individuals in an elevator follow the rule to the same extent as in a crowded elevator? Does a group of friends tend to face each other when they have the elevator to themselves, or do they still follow the rule?
Judging from my own experience, the rule applies most strongly with strangers and most weakly with friends. So I don't think your hypothesis is clearly confirmed, otherwise there would be no difference.
By myself, I definitely face the door when I'm in a hurry, and only slightly less often otherwise, on the premise that the doors might open and let some people in, and I'd find it socially uncomfortable to be found doing something unconventional at that moment. So I can report that your hypothesis is confirmed weakly in my case, but a proper confirmation would require more data.
I believe there has already been some research on this phenomena.
Even this is overlooking the glaring reason for facing one direction in an elevator. They have panels that you need to interact with.
If you don't turn around in the elevator to select your floor on the panel, then you will at least need to turn to see that your floor has already been pressed. You will also need to see which floor you are on to get off the elevator at the right time.
Proper use of the elevator is way more than an unspoken social rule. It's intuitive.
Explained perfectly.
can you continue uploading videos covering each chapter of HLA's hart a concept of law?
ngmi
I feel like people on the spectrum or with adhd have a much easier time seeing and understanding this stuff. Likely because most of the social “norms” that most people take for granted, we had to question why humans do the things we do in the first place.
The general sentiment is that law makers are always trying to make laws, as is, pushing the boundaries at what they ought to be. constantly.This push changes popular sentiment of what law ought to be.
I've never studied philosophy but feel like something is missing from the separation thesis explanation that statute alone is a good enough starting point for discussing something like segregation. Would you agree that a rule owing its initial existence to some statute probably has morality and politics baked into? If so then we're talking as much about what the law 'is' as the ought-statements and beliefs held by some members of society.
I like to make the distinction between decreed law and natural law. Natural law theory does not say that decreed laws don't exist, only that they can be evaluated as right or wrong (just or unjust.)
I loath the liminal presence of other people on the elevator. So I will always look towards one of the corners as the doors open. This scares most people, but for those who enter regardless of social conventions, they are worthy to enter the vertically moving box with me
Legal Positivism sees law as a tool, while the rival school of jurisprudence, Natural Law (to which I subscribe) believes that law ought to approximate morality.
This is mirrored in æsthetics, where some believe æsthetics are purely social while others believe that there exists such a thing as objective æsthetics, & that opinions are merely guesses.
ok but "ought to" is not the same as what it currently is. see 14:22. I know nothing about aesthetics, but it seems like you are missing a middle layer which is that the variation in our subjectivity is bounded within a pretty narrow space called being homo sapiens. that doesn't make our perceptions objective though.
Excellent. I have a big question: would you say the constitution is grounded in natural law theory or positivism? I'm sure there is evidence for both but what are philosophers saying about it these days?
Wait, what about the law of gravity? It's something we placed words on it as a way to describe something that will be there with or without is like the table explanation, but is considered under the use of the word law? Because it would still be there and presumably work the way we discovered it to work so regardless of us creating the necessary words to describe it, it would work the same way nonetheless. Or am I nitpicking? Sorry if so, just a little big question i had
What is it called to believe in both Natural law theory and separation theory(or which ever the opposite was called)?
An even more important question : How do you write those things on an invisible board?
"Natural Law Theory" itself can't be a "Law" in terms of "Legal Positivism".
Why?
@@sibusisomagagula3633Because Legal Positivism teaches that Law is in no way natural. Hence Natural Law Theory would be a redundancy.
@@kellieb23 that's right.
In a positivist system, natural law theory is just a social construct.
Just like any other moral system claiming there are nomological truths which aren't provable but obvious to the erudite.... 😂
Hey I've been watching your videos for a little while now and I've always wondered... are you writing everything backwards on the glass in front of you?
i was about to comment this
@@aut0maton oh I see. Thanks
@@maryanngorman3533 He's writing on glass and then mirrors the footage at the end. If you notice, the buttons on his shirt are on the opposite side from normal.
At my work in a 10 story hospital building, everyone who works there gets on the elevator and leans against the side facing the middle. Visitors typically face the door though.
Christmas came early? New Dr. Kaplan philosophy upload?
Morals are also a social phenomenon that depends on the thoughts and judgements of people.
Though I do agree, many people don't, even though these people can't agree on what these moral laws precisely are.
@@Apollorion , I can only imagine disagreeing in the case where someone believes in some sort of higher power, governing force, or god that somehow imposes morals on us that we somehow also can choose to ignore. That seems like pulling some stuff out of the thin air to me rather than relying on our own sensibilities and logic.
@@Apollorion Some suggest morals are individual (Agreement with ourselves to follow our own rules: Heinlein IIRC), while Ethics is the rules of 'others'
They aren’t. You can abstract and deduct the moral law of coexistence of the sentient creatures generally
@@nicklausbrain almost all the arguments/discussion/statements have an element of prejudgement in the phrasing, like sentient or intelligent or mammal or cute and furry, etc.
Beliefs likewise can be all over the place.
Two things I was wondering while watching your explanation.
First: This is related to how far we can stretch the concept of social phenomena and I stumbled upon this when you used the table as an example. Isn't the table the same as the money? In the sense that there is a physical object/medium, which we assume continues to exist independent from human knowledge or usage thereof, but its status, denounced by function or form, caeses to exist. There is still a physical object, but there is noone who would identify it as table by refering to a set of the ideal table, nor is there anyone who would use it as a table.
So the question then is, isn't everything a social phenomenon the moment we acquire knowledge about anything by wrestling with its identification by one means or another? #Socialconstructs
Second: I remembered that natural law was also used to legitimize the U.S. revolution, as well as its usage in abolitionist sources, and was thus wondering, if natural law is better suited to break the Status Quo? A Positivist could still use the seperation theory to argue for change on the basis of what ought to be, but the question arises how that ought to be is to be determined? At that point it becomes circeljerky. Because without any reference to a source of objective morality/justice the answer would be, "whatever the accepted legislative bodies agree on right now". Even if they put it up to a discussion, considering the fact that laws may be outdated and not adecquately reflect current opinion on an issue, in extreme cases, when the interests of a group isn't represented by the legislative institutions, like the american subjects of the crown, slaves, afro-americans or women, there would likely be no change satisfying these misrepresented groups.
This brings me to another question, which ties into this, how does a Positivist determine what ought to be? Justice of proportion? An intuitive feeling of right and wrong, like the Golden Rule? God?
And if they do refer to a source of objective justice, what remains as substantial differnce between Naturalists and Positivists and thus warrants their disctinction? Because at that point it just sounds like semantic bullshittery to me. And since I am on the topic of labels and wordplay, what does a Naturalist call these laws that are in fact no laws at all? Or do they just completely deny the existence of it, to a point where they do not even have a name for those things (The Unnamable Horrors of Legislature, by H.P Lovecraft)?
I feel like I'm missing something or there's some component I don't quite grasp - it seems to me like Natural Law Theorists and Legal Positivists are just operating under a different definition of what the word "Law" means; where Legal positivists argue that Law is simply what is, and Natural Law Theorists essentially argue that "Law" is synonymous with "Justice". Presumably a white nationalist who's a Natural Law Theorist can also argue that segregation "laws" where in fact in accordance with Natural Law so they really where Law.
There are laws that remained obscure for the sake of maintaining its truth. You think of it, because it is capable to be perceived. You remove redundancy, its really simple.
When I was at University of Florida College of Law, we were required to take Jurisprudence in our first year.
Just finished law school two days ago (🎉)
I’m not sure we can make generalizations about 3L course offerings.
ur videos r so entertaining
This is a comment regarding your video: Peter Singer - "Ordinary People are Evil." You turned off comments there (which, I would argue, is evil), so I'll leave my thoughts here.
I agree with Singer's thesis. In fact, I started out as a person of modest means, so I understand the hardships life can throw at you. Subconsciously, I have always known that spending money on unnecessary things is morally wrong. Even now, when I am in a better financial position, I only spend a portion of my income. I haven't "upgraded my life" or indulged in luxury items. I haven't traveled abroad or taken vacations outside my local area. It's been 12 years, and I still can't morally justify these actions to myself. I purchase new or used items only when the old ones are beyond repair. The extra money I have just accumulates dust (and interest) unless I use it for supererogatory acts. That's how I choose to utilize it.
I believe people are often blind to the harsh realities of the world beyond their immediate social circles. They acknowledge that the world can be unforgiving, but they also view taking action as either too difficult or impossible. Soothing oneself with luxury and material possessions is easier, and that's what most people opt for.
Overall, I appreciate Singer's perspective and resonate with the idea that ordinary individuals tend to overlook their moral responsibilities in favor of personal comfort and convenience.
Yours sincerely, Alex from Berlin.
I wonder, do you have an opinion about the judicial reform in Isreal?
So what kind of Law Theory provides the basis for Guantanamo court procedures? Particularly wrt how precedent influences future cases or how defendants can utilize precedent?
For GTMO, it is like law that must not be understood/known socially.
In Europe, legal positivism is based on Roman law. In civil law systems law is being taught in the oposite way, positive law first, later cases.
Are you a lawyer in Europe?
I always have a bad feeling entering an elevator and facing the door, ever since the first time. I've always thought, and to this day still think to myself, "Why am I doing this? Why are we all so compelled?"
cuz you're gonna leave through the door and it's convenient to face it, knowing you will do so
what sucks is when it's not clear if it's a double-door or one-door.
@@TheAlison1456 . Huh. Why didn'I think of that..
@@James-ll3jb yeah. I'm curious too!
Based off what you stated, and going off of H.L.A. Hart’s Separation Thesis, isn’t it possible for Legal Positivism (LP) to not only recognize, but also contain Natural Law Theory (NLT)? What I mean is that LP is the the analysis of what a law is, where as NLT is the what a law is supposed to be. LP being objective analysis of status quo, where as NLT is the subjective speculation of ideal (natural) justice.
I feel like I’m missing something, because LP doesn’t really seem to *contradict NLT at all, so LP v. NLT shouldn’t be a discussion in the first place,… they seem to be arguing different subjects altogether.😵💫
*Edit: changed “interact with” to “contradict”
The elevator rule boils down to something more simple that has nothing to do with an elevator or peer pressure from others in the elevator. The elevator has 1 door serving as both the entrance and the exit. People generally walk facing the direction in which they walk. So, walking into the elevator, they are facing the back. We do not even have to mention that they then face forward to press a button to determine where the elevator will go, we can simply say that the next thing they will do is walk out of the elevator. So, they orient themselves in the direction in which they will be walking. If the elevator had doors on each wall that were functional, people would tend to orient themselves in the direction facing the door that they were going to walk out of, probably standing close to that door in order to allow room for others that were standing close to their chosen door. So, it is not really about elevator etiquette, it is just about facing the direction in which you are going. Animals do that, too.
You've just dismantled the elevator rule.
Most readers need to get out more if they've never been into an elevator with separate entrance and exit doors (common in airports) where the 'whole corridor' is raised/lowered. Folk can get confused!
Can somebody clear something out for me? As a non-native English speaker, I was surprised to learn that word "positivism" in context of philosophy comes from latin "positivum", which means "positive" in a sense of "good" in English. Now, here is different point of view, that contradicts what I know. Where is the truth?
And if it really is true that "positivism" comes from "posit", what is a relation between words "positive" and "posit" in English (if there is any)?
Hey Jeffrey! Could you make a video about how different theories of law require or dont require a concept of free will? I'm wondering if any of current theories of law can survive a determinist view where humans are not responsible for their actions, because all the things they do are determined by their biological and environmental conditions. That view is getting increasingly more popular in the scientific community with better neurobiology, and I was just thinking if any of the theories of law already take it into account. Thanks!
1) Free will is nonsense, but "determinism" is no longer the correct scientific theory to employ in the popular argument against it. That is, research in quantum mechanics and bell's inequalities show that the universe is fundamentally not "deterministic" per se. There is a significant and fundamental unpredictability of future events. A better term that works equally well for the argument is *"eternalism"* which states that the future is *fixed and immutable* (rather than predetermined and fundamentally predictable), and which is firmly supported by Einstein's relativity and related research.
2) Free will and moral responsibility are not required to justify the legal system. The *_instrumental_* value of the legal system is sufficient: 1) It discourages harmful acts, and 2) it protects society from individuals who are likely to do harm. It doesn't matter that moral responsibility doesn't exist.
@@andrewj22 thanks for the comment! Do you have any sources on these for further reading?
@@jusuzippol On which of the two points?
@@andrewj22 Well I'd like any texts/textbooks/research articles that discuss both points in relation to the theory and study of law. The first point is usually just "assumed" instead of written out formally. The second point is also not very often discussed in popular law texts, and I have had a feeling that morality is a very big part of sentencing both from the point of view that we want to "punish" people that have chosen the wrong thing as well as "reward" people who have done the right thing. Essentially give people "what they deserve" in the court of law. And again if that is only in the pop culture way of wording, how do law researchers discuss it and differentiate between your second point and moral language? Any sources welcome!
@@jusuzippol Since you're most interested in the second point, try these papers and the sources cited therin:
iep.utm.edu/punishme/
philarchive.org/archive/CARFWS-7
law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html
philarchive.org/archive/VILPPA
Huh. Answers questions I didn't know I had.
Within the theory of legal positivism, are there any criteria by means of which one can challenge existing laws as being unjust? I understand that the legal positivist can say of Martin Luther King that he broke laws because he had a *moral conviction* or *belief* that those laws were unjust, or as you put it "evil." But as I understand things, the legal positivist--not unlike the logical positivism for that matter-- is committed to the thesis of *non-cognitivism.* To speak of "moral truths," is really to assert either a) a personal or subjective opinion, b) belief or value one has internalized from the specific culture,society and/or historical period within which their understanding of the world evolved or, relatedly, c) socially constructed idea about what is good or just that derives not from the dominant culture in which one lives, but instead a subculture (say, the culture of organized crime families) or a counter-culture (say, beatiks, hippies and various iconoclasts). In all three cases, there is no transcultural or transhistorical ("objective") moral standard within which the law is nested. The price of this position is that, to give a topical example, very idea of "Human Rights" as internationally binding (so that War Crimes can be tried, or human rights violations assessed) reduces in the end to realpolitik. This plays out in real time whenever countries (e.g. China) dismiss those conceptions of universal human rights which they don't like as "western impositions" i.e. merely conventions derived from another culture, not from any privileged moral position at all. I'm looking at an old text book from the 2000s-- a reader-- called The East Asian Challenge For Human Rights, ed. Bauer & Bell. There were already knotty debates over these issues then. Since China's power and influence, along with BRIC countries and others now in the G20, has risen remarkably since then, these vying conceptions of what is and is not "just" in legal contexts, has become even more difficult to adjudicate, if ever they can be adjudicated.
All of that was an example to illustrate why the first response of many students to legal positivism is to say "what about "evil" laws, "bad laws," unfair laws etc. I think they are wrestling with the moral relativism (whether subjectivist or conventionalist) entailed by a sharp fact/ value dichotomy. I personally accept a form of cultural relativism, but I am aware of the trade-off, and would admit that I have no privileged access to timeless truths about rights, the good and just etc. I accept but my views are largely the product of my age, culture personal dispositions combined with whatever limited creative and intellectual contributions I may or may not make as an individual. But for those who have firm religious principles, or for those who believe in a universal theory of justice based on fixed human nature, this is a non-starter. And who among us isn't at times convinced they are not "Right" in a sense that overrides positive laws, and touches on the very essence of what it means to be humane and fair?
So again, I ask, whether or not there is room within legal positivism for moral standards to exist by means of which we can (cognitively not based on preference or culture) determine whether any given set of laws is just or unjust. If you think there are such standards, I would be interested in a follow up video articulating the theoretical basis for moral criteria over and above positive laws.
Hmmm, not sure those pants are actually fashionable Jeffrey... ;-)
Great video, as always!
The problem with some legal positivists is that they define morality by laws and claim obedience to laws as moral virtue
I don't think that's very common. Do you have an example?
but isn't it one of the greatest contribution of positivism the separation between law and morality??
@@godofedrofalso4586 Yes, of course. That's why very few positivists would claim that obedience to law is a "moral virtue" (at least not in the capacity of philosophers of law). Whether one should obey the law is a very different question from what the law actually is.
Any lecture on critical legal theories?