Transcript of Legal Positivism - the dominant theory in jurisprudence

most of the law school curriculum in English-speaking countries focuses on cases in the US it's often landmark cases like Marbury V Madison py v Ferguson Brown V bard of Ed and court cases involve specific events that happen to real human beings and they're concrete enough to wrap your head around but when law students reach their third year at least in the United States they have the opportunity to take Juris Prudence which is just a fancy term for Philosophy of Law the dominant Theory at least today in Juris Prudence is legal positivism third-year law students often find it very difficult but I'm going to explain it to you right now the first concept that we're going to need is that of social phenomena by which I mean things that depend for their existence on the thoughts or actions of people for example money here's some of my money I brought it in as a prop this is a piece of paper and if all of the human beings in the whole world disappeared today this paper could still keep on existing at least for a while until like the rain and the wind wore it down and turn it into like a a dust of of molecules or whatever but its status as money depends on the continued thoughts every minute of people you know at least throughout the United States of America what makes this money is the fact that people think it's money if I go to the store and hand this piece of paper to some someone then they'll give me some candy but if everyone stopped caring about these pieces of paper if they stopped giving me candy when I handed them the money then it wouldn't be money anymore the value of money is a social phenomenon its existence the fact that the money has the value that it does depends on the continued actions and thoughts of people does that mean that it's not real no it's real let me tell you the value of money is a real thing like I really can get candy for it or jet skis or whatever you can buy with money you really can buy it so money is real its value exists it's a totally real thing it's just a social thing another big category of social phenomena would be things like fashion trends those pants are fashionable because people think that they're fashionable there can be social phenomena that need human beings to think a certain way in order order for them to exist but humans don't even know that those things exist and that their thinking keeps them in existence the one example of this that I could come up with is what I call the elevator rule this is a rule of etiquette I guess when you go into an elevator what you're supposed to do is turn around and face the door this is a social Rule and its existence depends on people thinking a certain way the reason that you're supposed to face the door and that everyone else would think you're super weird if you just walked into the elevator and faced the wall or faced them the reason people would think that's so weird is because there really is this rule but this rule relies for its existence on the thoughts of people people follow this rule their own thoughts sustain the existence of this rule without them even knowing it you probably just go into elevators and stand a certain way facing a certain direction with a certain orientation you do that automatically without anyone having ever told you oh this is what you're supposed to do so there really is this rule that relies for its existence on our thoughts even though we don't in a certain explicit way think about it at all and one other important point is that there are things like tables these things were created by human beings like you can imagine a wooden table that someone made with their actions with you know a saws and Hammers and nails and that sort of thing this table is not a social phenomenon in the way that I'm thinking about it although the table relied for its initial existence its creation it relied on the actions of human beings it doesn't rely on human beings for its continued existence if all the people on the planet Earth disappeared tomorrow the tables would keep on existing but the rules for elevators those would stop existing at the very instant that the people went away and the fashion trends would cease to exist and the value of money would cease to exist returning to Legal positivism that is just the thesis that law is a social phenomenon it's like money or etiquette or the elevator rule or the game of basketball or whatever it's a thing that human beings created and then we sustain it in its existence legal systems only continue to exist because we do things and think certain things legal facts that is facts about what the law is are ultimately social facts for example the fact that crossing the street not at a crosswalk is illegal Depends for its initial existence on some statute someone wrote something in a law book and then the Congress all voted to make it law those are all social facts facts about what someone wrote in a book which people raised their hands at what time those are all facts about human thought and action and that law continues to be law because enough people think in their minds this is the legal system I accept this legal system whatever the person wrote in that legal book through the right procedure that's the law certain human events created the law and then certain human psychological States sustain that law in existence in the most general terms the positivist social thesis is that what is Law and what is not is a matter of social fact those words were written in 1979 by the utterly inimitable Joseph Raz one of the great legal theorists of the last 50 years okay that's fine if that's all that legal positivism turns out to be it's going to turn out to be a little more than that but at this point we might wonder why it's called positivism the word posit usually means to suggest or assume or put forward a thesis but in this case the word posit is being used in this kind of weird way to mean to think something into existence so legal positivism is just the view that law is something that was posited into existence by human thought if we now go back through the most famous theories of law of the last 200 years we can see that many of them are versions of legal positivism John Austin's Theory which he really stole or borrowed from Jeremy Bentham his theory is a version of positivism why Austin's Theory explains the existence of legal systems in terms of basically three ingredients issuing commands threatening sanctions and habits of obedience I explained Austin's whole theory in a previous video lecture Austin thinks he can explain what makes a legal system exist just in terms of a certain combination of people saying some commands like a like a king or a sovereign or someone has to order some people to do something they have to back those orders up with the threat of punishment and then also what makes them the lawgiver what makes them The Sovereign is that other people have certain habits of obeying them from this very brief summary you don't have to understand Austin's Theory or why it's powerful but ultimately flawed or anything you don't have to understand any of that all you have to understand is that like oh he's explaining this thing legal systems in terms of human actions all of these are things that people do and as long as people keep doing those things in the right combination there exists a legal system and so if that's your theory of law then you're explaining law enti in terms of social facts facts about what people do and so Austin is a legal positivist and the same is true of the even more famous and more important theory of HLA Hart about whom I wrote half of my dissertation heart explains law in terms of a hierarchy of rules there have to be these social rules they have to be structured in a certain way with primary rules and secondary rules that are about the primary rules if you want to understand all of this then you have to watch the lecture video that I made about HLA Hart Hart thinks that there are social rules like that social rule that says that you have to face the door in the elevator there are social rules that need to be structured a certain way and those social rules are themselves explained on his theory in terms of patterns of behavior and attitudes mental States the states of people's minds that's what makes these social rules exist as long as these social rules are arranged in a certain very specific way then you have a legal system Hart's Theory therefore is ultimately a psychological theory of law it explains the existence of legal systems in terms of thoughts in terms of psychology but the thoughts and actions of people well those are those are social things those are social phenomena and so Hart's theory is also a version of legal positivism okay fine that doesn't seem that hard that's legal positivism but what's like the alternative the alternative Theory the theory that competes against legal positivism in jurist Prudence at least for the last few hundred years is called natural law theory now the phrase natural law theory gets used in ethics to mean something different we're talking about in the philosophy of law where this phrase means the idea that law is partly a social phenomenon but it's also partly inherently a moral phenomenon the idea generally behind natural law theory is that legal facts are determined ultimately by social facts and by moral facts to see what this means think back to the example of the law against crossing the street outside of a crosswalk according to the positivist the fact that that law is law is explained entirely by social facts so by the fact that someone wrote in the law book and all the people raised their hands those are social facts about where their hands go and that people enough people think that that's the legislative body with legitimate Authority and so all of those social facts the thoughts of the people the the handwriting the raising of the hands to vote all of those social facts come together to make it the case that it is illegal to cross the street somewhere other than at a crosswalk the natural law theorist will tell the whole same story about writing the law in the law book and everyone raising their hands all that social stuff but then they'll add an additional condition they will say that that law only exists because it is not sufficiently immoral if it turned out that the one true moral law set out by God or nature or Justice itself or whatever truly prohibited this kind of law it made it an offensive evil law then that law would not be law at all famously Martin Luther King Jr was imprisoned for engaging in nonviolent demonstrations against racial segregation and he wrote a respon resp while he was in jail in Birmingham Alabama he wrote this response it was a response to certain White Community leaders and church leaders who were urging him and his followers to sort of you know use caution and don't upset anybody and yeah this racial segregation's not so great but like don't get too upset about it and his response was his famous letter from a Birmingham Jail I would agree with St Augustine that an unjust law is no law at all at least on a Surface reading the sent sentiment that he's putting forward is the natural law sentiment the idea that if some law violates some you know deep moral prohibition then that law is not law and if that's correct then law is not a purely social phenomenon there are certain moral constraints on what counts as law okay now we're getting into the interesting territory legal positivism is contrasted with natural law theory and because of this contrast there's this other way what's called the separation thesis another way of stating what positivism is on this way of articulating positivism it is the contention that there is no necessary connection between law and morals or law as it is and law as it ought to be that's HLA Hart he's like the best he's my favorite you know what's being separated it's the facts about what the law happens to be like what is illegal and what is not illegal that is being separated from what should or should not be legal or illegal another way to draw this distinction with a certain bit of jargon is as the difference between descriptive facts and normative facts and you can see how natural law theory has to reject the separation thesis natural law theory says that there's this moral check on what counts as legal and so in order to figure out what the law is you have to figure out what the law ought to be you have to figure out the moral facts because you can never know if that law really is law according to natural law theory unless you know whether it would be totally evil for that thing to be law remember according to these natural law theorists like St Augustine born in the year 354 or maybe Martin Luther King Jr an unjust law is no law at all and so you really can't draw this distinction this separation between what law ought to be and what law is because what the laws are is in part determined by whether or not they meet these moral criteria positivism because it says that law is a purely social phenomenon there are no moral constraints on it in principle therefore there's this there's this conceptual separation you can figure out what the law is before or separate from figuring out what the law ought to be okay so does that mean that like legal positivists think that law should not be informed by morality no no no no no no no no no no that's not what they think I mean that's the first thought that most students most law students will have when they hear everything that I've just said but that's not the view hold on positivism is just a theory about what law is it just says in order for a law to be law it doesn't necessarily have to be morally good now a positivist can then go on to say that oh well yeah sure that terrible law is law it's just a terrible one it's evil and we should get rid of it Martin Luther King for example he could resist a legal system he could disobey its laws he could point out that some laws are morally egregious he could do all of that while being a legal positivist indeed the legal positivist will claim that they have actually a better clearer way of saying what Martin Luther King Jr was up to because the positivist thinks that these are two different things what the law is and what the law ought to be the positivist can just State the case like this like look there are these laws they require whites and blacks to use different facilities different train cars different drinking fountains they make interracial marriage illegal so on and so forth that's what the law is and those laws are evil what the law ought to be are things that treat people of different races equally but because the natural law theorist thinks that there are moral constraints on law they have to do this kind of weird thing to explain what Martin Luther King Jr or anyone criticizing or resisting a law was up to they have to do this weird thing where they say these segregationist laws weren't laws they were almost laws and so Martin Luther King Jr wasn't breaking any laws really it's just that everyone thought he was breaking laws and he didn't want to change what the laws were because of course according to the natural law theorist those were never laws because they were truly immoral and there's this moral constraint on what law is and so he wasn't trying to change the law he was just trying to get other people to realize what the law was all along that's the sort of weird thing that the natural law theorist has to say because they don't hold the separation thesis the positivist can just state things a lot more clearly and they claim that this is an advantage of their view there's what the law is and it's all this segregationist stuff and then there's what the law ought to be which is not that segregationist stuff do you see why natural law theory has to give the answer that Martin Luther King Jr wasn't breaking the law because truly immoral laws aren't laws right remember he said it an unjust law is no law at all well if that's true then he wasn't breaking the law but he's in jail and all the judges are going to you know bang their gavels and convict him or whatever it just seems more sensible at least to the positivist to say no he broke the law but he did it because he had a moral Vision he understood that that law was an evil terrible law and he had the the courage and the foresight to to resist it okay so the main takeaway from all of this is that there's actually two ways of stating at least two ways there's actually many more but there's at least two main ways of stating what legal positive ism is there's the social thesis that's what we started with the idea that law is a social phenomenon or that legal facts are ultimately social facts and then there's this separation thesis which is also a way of stating basically the same view but that this separation thesis really makes sense or it sort of comes about once you contrast legal positivism The View that all you need to figure out what the law is are social facts you contrast that with natural law Theory which is the view that in order to figure out what the law is you need to look at the social facts but you also need to figure out what morality itself demands okay so if you understood all of that then you're like way ahead of the game