Transcript of What is Legal Positivism?

i was like oh i've never heard of this game there's this game called squash and half of these kids they know how to play it they've been playing it since they were 11 or something like that so far in this course we've been talking about the legal theory of john austin we didn't actually read anything that john austin wrote we read a reconstruction of austin's view by hla heart and then two chapters of heart's book criticizing austin we're going to get on to heart's own theory of law next but before we do that it's worth pausing and getting a sense of the broader categories of legal theory that we're dealing with the most popular maybe type of legal theory is called legal positivism if you have experience with the history of analytic philosophy then you may already be familiar with the term positivism as a name for a group of philosophical views that were popular in europe and some parts of the united states in the middle of the 20th century or early 20th century this has nothing to do with those forget about that legal positivism has its name because of the word posit the idea very very basically is that law is a social phenomenon it's in legal systems are artifacts of human creation they're something that human beings have created or posited into existence with their behavior and their thoughts and their words or something like that there's legal positivism then there's its main opponent which you might call non-positivism or anti-positivism but the main version of it sometimes gets called natural law theory natural law theory also is a term that you may have heard if you've studied ethics this phrase is sometimes used or a phrase like this is sometimes used in ethics or meta ethics to refer to views about morality this doesn't have to do directly with that either so you have to toss that out if you're going to understand what we're talking about here the view that we're talking about here was famously defended um some time ago by saint thomas aquinas but also has contemporary defenders and has had defenders throughout the 20th century the idea behind natural law theory is that legal systems aren't purely a product of human creation instead they are a product of human creation along with natural law along with laws that exist in nature perhaps created by god independent of what humans think or say or do one basic version of this idea is just that profoundly immoral or unjust laws that humans create laws that humans create that so violate the natural law those laws aren't laws at all they don't get to be called laws they don't have real legal status they look like laws but because they're so unjust because they go against the natural law so much they're not really law at all so you see there's an opposition between natural law theory and positivism positivism allows for purely unjust laws because all something has to do to be a law is to meet some set of you know social conditions it has to be created in some way by people or groups of people whereas in the case of natural law theory no in order to be law um some putative law has to meet some minimum moral standard for today we read a few pages from a textbook by or edited and written by davies and holdcroft uh and the pages that we read um were mostly quoting and discussing the work of a very prominent legal positivist one who at the time of this recording is alive and producing uh you know tons and tons and tons of philosophy of law he's like a very prolific philosopher of law and his name is joseph raz so here is something that raz says this is something that raz says in a book called the authority of law in the most general terms the positivist social thesis is that what is law and what is not is a matter of social fact which laws exist is determined by facts about what people groups of people do that is the variety of social theses supported by positivists are various refinements and elaborations of this crude formulation when he says this crude formulation he means the first half of this sentence so the idea is that well there's different groups or different sets of social fact that could determine what law exists and different positivists have different views about which social facts make law right and so what raz has in mind are the views of austin which we've been considering right that's the gunman theory of law the theory that explains law in terms of habits or patterns of behavior and threats and sanctions right and heart's own view which we haven't gotten to in this course but which is going to be fundamentally a psychological theory of law it's going to rely at its heart on behavior but also crucially on a certain mental state a certain psychological state that people have that heart calls the internal point of view or sometimes he calls it acceptance anyway and it includes raz's own view raz is himself a positivist and it includes the views of many more contemporary philosophers of law that are legal positivists i wanted to start with this quote because to me this actually captures the heart of what legal positivism is all about however we also read for today this passage from heart where heart is also trying to understand what legal positivism is we're not talking at least not today about some particular theory of law we're talking about like a whole category of theories and what these authors are trying to do in this sort of meta discourse this discourse about discourse right is they're trying to categorize in the right way the legal theories they're trying to understand what's essential to this category that they have invented in and are discussing anyway so what we get from hart in the reading for today is the following he lists off a bunch of thoughts that philosophers of law seem to have in the back of their mind when they use this phrase legal positivism and he lists five of them right and he said look these are five things that sometimes people associate with this term and then he's like well one of these is the most essential one and that's the one that should really strictly speaking be the the legal positivist thesis um and then the other ones are not so important that's what that's part of what happens in what we read for today so what i want to do now is i want to talk about some of those thoughts that heart claims accurately are in the back of the minds of some philosophers of law when they use the phrase legal positivism this is hart's characterization of one idea behind legal positivism and actually this is heart thinks the central one and it's called the separation thesis the contention that there is no necessary connection between law and morals or law as it is and law as it ought to be so we see what's being separated what's being separated is law and morality that fits with this right if law is fundamentally a social phenomenon then all that you need in order to make laws are ultimately at the end of the day some social facts right so that it's at least possible for there to be some law that diverges dramatically in some cases from um well true justice or something like that right so you so if if the right people accept the legal system say and the congress members pass some law and it gets the gavel gets banged these are all social facts and then the the speaker takes the piece of paper with the bill and runs it to the front of the building or whatever they're supposed to do right and everyone nods along that this is how we make law well then that thing is law whatever that is even if it's immoral that's the separation thesis and it comes from and connects with this idea that law you know is a well social phenomenon constituted by social facts so what's being separated here are these two questions the question of what law is and what law ought to be right the first of these is just a descriptive question and according to the positivist it's a descriptive question about social events the second is a moral question not what the law is but what should it be which laws should we choose which laws should we enact or institute or whatever the separation thesis that's part of legal positivism says these are separate but if you remember there was that other view that competing view the natural law view that says no these questions cannot be separated if you want to figure out what law is according to the natural law theorist well then you have to also figure out what the just laws are what the law ought to be and then that will set a condition for what laws can be law right so to answer this question according to the natural law theorist you also have to answer this question but according to the positivist you don't you can just answer this question all by itself that's at least possible there's no necessary connection between the two that's the separation thesis that's the heart of or part of the heart of positivism now let's consider some of the other things that heart says and some of these are a little confusing and will need some explanation i suspect that heart says are often associated with legal positivism even if they are not essential to it so here's what heart says keep in mind this is an alternative idea that's in the back of the mind heart thinks of a lot of philosophers of law when they use the phrase or the title or the label legal positivism they understand legal positivism perhaps as here we go the contention that the analysis or study of the meaning of legal concepts is a worth pursuing and b to be distinguished from historical inquiries into the causes or origins of laws from sociological inquiries into re into it should probably say the relation of law and other social phenomena and from the criticism and appraisal of law whether in terms of morals social aims functions or otherwise if you read this and thought to yourself i don't know what he's talking about don't worry about it i've been teaching actually this little bit from heart for quite some time and actually this portion of a sentence i don't think i've ever had a student walk into class and say oh i understood this i got this when i read it all by myself so let me explain what's going on here i promise you're going to get it and we're going to go back to this text after i give you some background there's this thing in philosophy that we sometimes call conceptual analysis conceptual analysis is well it's the plumbing or the investigation of part of our minds of part of the part of the thoughts we have one of our ideas a concept is an idea it is the phrase is often used or the word concept rather is often used to mean the meaning of a word the meaning that we have in mind here's an example take something like squash i'm not talking about the vegetable or fruit or gourd or whatever squash is the i'm not talking about a vegetable i'm talking about a game there's this game squash if you don't know about it it's a it's like racketball you play it inside of like a you know inside of like a contained room or something oh god i didn't plan that i was gonna draw this but you're in a box with another person and there's a door and there's like some lines on the wall or whatever and then there's a line that goes up the wall i can't remember how the line looks or whatever right you're in a box and you have rackets and you hit a ball around right and you're in the very same space it's not like tennis where you're on the other side of a net from your opponent you're standing in the very same space as your opponent right there you guys are there you go it's a racket game here's the thing about squash um there are some facts about what some game has to be technically strictly speaking in order to be this game called squash and it's facts about like the dimensions of the you know court or whatever that says that it's five feet but it's more than five feet or whatever i don't know what it is there's the facts about how big the court has to be and then there's gotta be you know a ball of a certain size there's all sorts of rules about what the ball can be like and there's the rackets and then there's the rules right and these all these rules have to be in place there's all the specific details those details about what something has to be in order to be the game squash those are part of the concept of squash they're essential to what something has to be in order to be a game of squash it has to involve one ball only and the ball's got to be this big and all this stuff all these rules then there's all this other stuff there's the strict requirements and then there's like what i'll call the like baggage i'm using the term obviously metaphorically i don't mean you know the baggage that you bring on an airplane i mean all the stuff that goes along with this game in our society for instance squash is a very snobby elitist game played by really really rich people usually in new england if you go to a fancy college a fancy small college in new england then you're going to encounter this game that you maybe have never heard of unless you went to like a fancy boarding school or something and you're like oh at least this happened to me anyway i was like oh i've never heard of this game there's this game called squash and half of these kids they know how to play it they've been playing it since they were 11 or something like that so it's snobby it's the kind of game that is played also by like wall street bankers on their lunch break or whatever because it requires a small amount of space it can be indoors it's an indoor game right so you know it can be inside of like an athletic club that's very expensive or whatever and it doesn't take up a lot of real estate in manhattan or something like that right so there's all sorts of associations all sorts of baggage that goes along with squash that it's like snobby right and that and it involves you know new england right it's played a lot in like massachusetts or whatever right all of this stuff these connotations that go along with the game they're not essential to squash right there there can be strictly speaking there can be a game of squash right that is played by very poor people not in new england but by somewhere else very far away in the world and these people are like very accepting of others and and they don't they don't like look down their noses at anybody maybe they're all really nice and that game would be just as much a game of squash as any other as long as it met these conditions here as long as it had the same rules and the same ball the same size and a court of the same size and all that right it wouldn't be a stereotypical game because it wouldn't meet the stereotype but it would still be a game of squash so the distinction that we're drawing here is between like the concept of squash strictly speaking and then all of the other baggage or associations with it and now the baggage may be more interesting or important at the end of the day the nature of class in america whatever might be more interesting and more important than the particular details of this game but they're different you can understand one you can understand all this without ever knowing anything about this right that's important this activity of conceptual analysis where you're figuring out what the concept is you don't have to also know this other stuff okay got it that's what hart is saying here is that a lot of legal positivists when they say the phrase legal positivism they they understand that to pick out an enterprise of conceptual analysis of legal concepts not of game concepts like squash but of concepts like law or you know legislative authority or whatever other legal concepts we like but we can stick with the concept of law right or what it takes to be a legal system the idea is that you can do conceptual analysis on the concept of law right without um well without also knowing all of the other baggage without knowing the history of law or where the which laws exist in which places or which people tend to make laws or whether those laws are right or wrong or any of that that's all extra to like strictly speaking what is something technically at minimum have to be in order to be a law or a legal system just like you can investigate what strictly speaking technically something has to be in order to be the game of squash without also knowing all of this other baggage that's what hart is saying in this passage he's saying that you can separate these two in your analysis you can you can investigate this without also inquiring into this let's reread the passage now and we'll see that that's what's going on okay legal positivism is sometimes understood as ready quote the contention that the analysis or study of the meaning of legal concepts right the study of these concepts is both worth pursuing okay so it's good to do and to be distinguished from historical inquiries into the causes or origins of laws that's some of the baggage you distinguish the analysis of the concept over here from the analysis of the history of the game right or of the institution of law and it's also to be distinguished from sociological inquiries into the relation of law and other social phenomena that is you don't also have to go into the baggage of how law is related to other things like class in america or or whatever right other social phenomena and you can also distinguish the analysis of the concept strictly speaking from the criticism and appraisal of law whether in terms of moral social is functions or otherwise that is you don't in order to figure out strictly speaking what is law or what is squash or whatever in order to understand the concept you don't also have to investigate whether this particular game of squash or this particular legal system is good or bad is evil or righteous or whether it serves some function or purpose or anything like that the idea is that you can just do conceptual analysis by itself you don't have to investigate all this other baggage that's that's what hearts means in this portion of a sentence the last thing i want to do is i want to talk about one more idea that hart claims a lot of authors at times have in mind when they use the phrase legal positivism and it's different from the separation thesis that's the most important one that was the first one we talked about and it's different from this one having to do with conceptual analysis it's it's the it's the final and fifth one actually that he mentions we're only going to talk about three of them um at the end of the day but this is the fifth and final one or the third one that we're going to talk about in this in this lecture video this is the fifth and final idea that hart thinks is sometimes in the back of the mind of legal theorists when they use the phrase legal positivism this one by the way is the least connected with the heart of legal positivism it's the least connected with the social thesis or the separation thesis which was which was the first thing that we talked about legal positivism is sometimes understood to be the contention that moral judgments cannot be established or defended as statements of fact can by rational argument evidence or proof and then in parentheses he gives the famous or the the standard name for a view like this non-cognitivism in ethics unless you've already studied meta ethics or philosophy of language you probably have no idea what this means so we're gonna have to do a little bit of explaining to see what's going on here's the first thing in language we have statements right so you might say something like i shut the door you're saying something about what you've done i shut it this is a description it's just a normal descriptive sentence it's an assertion right and it can be true or false it's true if you really did shut the door and it's false if you didn't maybe someone else shut it or maybe the door is not shut at all it was never shut this sentence can be true or false right but then there's all sorts of utterances there's all sorts of speech acts there's all sorts of things that we say that can't be true or false like here's one shut the door that's an order or a command that's telling someone to do something it's telling someone to make the world a certain way make it such that the door is shut this is not a statement of how things are this is a command that they be a certain way so this can't be true or false it can't be accurate or inaccurate because it's not describing anything it's commanding something similarly with questions like um will you shut the door that's a request right for someone to do something will you shut it please something like that that's not an assertion either so this also can't be true or false will you shut the door someone can't just say that's not correct that's false you didn't describe the world the right way i wasn't trying to describe the world i was asking you to do something so some statements or utterances describe the world they can be true or false some of them don't they can't be true or false right and if they can't be true or false they can't be defended by you know arguments rational arguments evidence or proof right you can't establish that they're true with an argument because they're not the kinds of things that even could be true here's another type of statement well this is not a statement this is another type of utterance rather boo right like you're booing someone you know about booing people say you're at a piano recital or something uh and you hear the you hear the music and you think it's crap so you say boo it's a rather obnoxious thing to do and it is more typical at sporting events than it is at music recitals or whatever certainly classical music you don't see it very often but this could happen and we all know what it would mean this is a meaningful linguistic utterance but just like a question or a command it's not the kind of thing that can be true or false right it's a mere expression of your underlying feelings about the circumstances you have some negative feeling about the recital and when you say boo you just let it out you let your feelings out you let your feelings be known to everyone but you don't describe anything you don't describe the recital say how it is you don't say this recital is poorly done right that would just be a statement like the first thing right nor do you describe your feelings you're not saying i feel poorly about this recital you're not describing yourself either you're not describing the music you're not describing your own mental state or your own feelings you're not describing anything you're just expressing your underlying sentiments your underlying feelings now we need to talk about moral discourse so there's all sorts of moral things that we say right we say things like murder is wrong or we might say something like charity is good these look like assertions they look like they're just like this one like they look like they can be true or false right murder is wrong is true if murder really is wrong and it's false if murder really isn't wrong right these look on the surface like statements but what if what if you thought that there were no objective moral facts right or maybe you thought even there weren't even subjective moral facts you thought there were no moral facts at all right there's no facts about which things are right or wrong there's no morality if you thought that if you were a kind of moral nihilist you would still have to explain all of this discourse all of these words that people say about morality and you'd have a bunch of options one option would be to say all of these statements are false murder's not wrong it's false to say that murder's wrong because nothing's wrong but it's also first false to say that murder is right right and it's false to say that charity is good because nothing is good right but it's also false to say that charity is bad because nothing is bad either right if you're a moral nihilist one thing you can do with all this moral talk is you can say it's all false right that's called an error theory an error theory of moral discourse that would go along with your moral nihilism but another option is you can try to save all of this discourse you can try to say oh you know what no no no no all of these sentences that look like they can be true or false they look like assertions like this they're really secretly like this they they look like they can be true or false but actually they can't be either true or false because even though they look like assertions they're really just well perhaps on a crude version of this view they're really just expressions of an underlying feeling saying murder is wrong maybe is really just like saying boo murder that's one version of cognitivism at least it's an old-fashioned version but whatever the idea is that moral language in this case is is really just well it's non-cognitive so cognitive is sometimes a terms term that we use for linguistic expressions or mental states even that are related in the right way to belief and belief is a thing that can be true or false because it traffics in whole propositions and it asserts that those propositions are true or it puts them forward is true or something like that right so non-cognitivism about moral language or moral judgments for that matter non-cognitivism about those things says that well they're really not truth evaluable they're really not assertions these statements they're really something more like expressions mere expressions of sentiment that can't be true or false say that you're at the recital and you say boo and someone else says yay because in a certain sense they disagree with you that is they like the music recital and you dislike it but you're not actually strictly speaking contradicting one another they're expressing their feeling and you're expressing your feeling you're just both expressing your feelings and you guys have different feelings but it's fine to have different feelings it's very different if one of you was to say this recital is excellent and the other person was to say this recital is not excellent then you'd be contradicting one another because you'd both be making statements right but you wouldn't be strictly speaking contradicting one another if one of you just says boo and the other one says yay because there's no proposition to contradict all right what this is saying here is that for some and this is sort of old-fashioned and is no longer really the case legal positivism was typically associated with non-cognitivism about ethical statements with the view with the view that ethical statements or moral statements i'm using ethical and moral synonymously here um are not assertions that have a truth value why you might ask was this view which is about moral discourse ever associated with well this label that's about like that's a category of legal theories well here's the idea say that you held on to the separation thesis the separation thesis which really is part of the heart the heart of legal positivism was the difference between what law is and what law ought to be and the second thing was a moral issue and this was a was a non-moral descriptive issue here's the thing if you thought these were separate because you're a positivist and you thought that that legal theory was engaged in this thing all by itself and it didn't have to worry about this you might also think that there's just no fact of the matter here like that that view fits as an addition right is that there is no fact about what law ought to be indeed if you if you thought that there were no morals at all in the first place then you would very much be inclined to think that you could answer this question separately because you'd think there was no there was no answer to this one so you better be able to answer this one separately right so you've got the separation thesis you add to the separation thesis moral nihilism the the fact that you think there is no morality so you can't answer this question and then you add another thing to moral nihilism that was popular um you know in the middle of the 20th century um and it's somewhat popular still today although less so i would think um is non-cognitivism that's a thesis about moral discourse or moral judgments that goes along with moral nihilism that's how this baggage sort of to reuse the word baggage in a different context that's how this baggage about non-cognitivism got tacked on historically to legal positivism although it's been sort of ripped away at this point so we've talked about a bunch of stuff let's just return to the most important central issue you have to know what this word or this phrase rather means legal positivism and here's what it means it means that law is a social phenomena phenomenon sorry law is a social phenomenon ultimately at the at the very bottom of the foundation of what makes legal facts the facts that they are what makes laws the laws that they are are social facts facts about what people say and what people do which bills get passed passed by congress and which well if your heart which attitudes the population has towards the constitution or towards the legal officials or whatever right those are all social facts and those are the facts that determine what the law is that at its heart is legal positivism and what centrally goes along with that is this separation thesis the idea that you can therefore figure out what law is without also figuring out what it ought to be because you can figure out the social facts without figuring out which would be the right or good social facts to be well to be the facts that other stuff about non-cognitivism and then also about conceptual analysis those are extra ideas that at some times are attached to legal positivism but are not as central to it and the other thing i want you to take away is that the theory that we've been talking about this whole time so far austin's theory is a version of legal positivism and the theory that we're going to talk about next heart's own theory that comes out in chapters 5 and 6 of the concept of law well that theory is a different version of legal positivism you