Legal Positivism - the dominant theory in jurisprudence

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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.

[Pushing_Pixels]

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.

[bendontran]

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

[yoheifujiike]

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 !!!

[Curathol]

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.

[cavalrycome]

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".

[aFunctioningWorld]

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.

[fredrikeriksson]

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.

[AJoe-zego]

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).

[jeromeloisel]

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. :)

[Kalzaks]

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

[ccityplanner]

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.

[zocha]

Im on first year of law in Poland and jurisprudence is obligatory and your video really helped me understand it, thank you:)

[allenhaydo]

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.

[rgarlinyc]

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.

[jonathanbenton]

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 YouTube 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!

[mydogdeli]

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.

[justicegambino]

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

[nath]

Kaplan, the great explainer! Love your videos! Please make more on jurisprudence.

[thefeaturedfilmer]

Attained a better understanding in the whole 18 minutes of this mans video than in the first 3 weeks of my jurisprudence course, great stuff!

[flappyfeet]

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.