What is Legal Positivism?

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This is a video lecture about legal positivism (the theory in analytical jurisprudence, which holds that legal facts depend ultimately on social facts alone) and non-cognitivism (the theory in metaethics, which holds that moral judgements are not truth-apt). The work of Joseph Raz and HLA Hart is discussed. This is part of a course on the Philosophy of Law.

[@omarmadhloom2602]

I teach jurisprudence and I have to say this is by far one of the most engaging and informative lectures on this topic. Great content, sir!

[@profjeffreykaplan]

Thank you! I really appreciate your saying that.

[@syntraxglobal4028]

Leaving this site without a comment is being ungrateful. You are a living genius.

[@visionloks]

This is what I love about you tube, great people explaining lectures in a way that law students can understand. Thank you for creating this video and helping elaborate these topics.

[@collinlaraen5742]

I was smiling all the way through. For two reasons. His lecture is so so interesting. He can really take me deep into understanding legal positivism.

[@jerryyu3776]

👁👄👁my face when I discovered this channel

[@mayomayo9557]

This is meeee my eyes are tearing up 😭....this is great

[@discourseonlawandpolitics4749]

Same here

[@fatmatabockarie3197]

Honestly tho It’s sooo helpful

[@user-jt2sk7oy8s]

Literally me right now.

[@mzeesafaritv850]

I am awed! You break it down so well! Uptil now I've not been able to understand this concept. But you've driven it home so well for me. THANK YOU!

[@AlliToluwalaseLetstalkabout]

This is beyond amazing and has been absolutely helpful! I am so happy I came across this post! God bless you! You simplified a philosophical concept that often leaves people confused. You basically broke down a cumbersome concept into understandable bits! Please keep it up I'd totally look forward to seeing more from you! God bless you!

[@profjeffreykaplan]

Glad it was helpful! Check out the other videos already uploaded on my channel. There is a whole Philosophy of Law course playlist, for example.

[@sirajahmedsahito1019]

Sir, you are an ideal example of what a Legal ought to be.

[@fearitselfpinball8912]

I commented on this video a couple of days ago. I’m just loving this series. I think I finally have a more concise statement to clarify, for myself, my own views. My viewpoint is this: there is no technical process by which an unjust law can be made legitimate. Or another way to say it: there’s no legitimate process that grants someone the right to make an unjust law.

[@divinegosioha2654]

thank you jeffrey please dont ever stop, i have a presentation due tomorrow and this has been very helpful

[@larevote6496]

I am a first year law student and I often find myself losing ground in this particular subject. I cannot be grateful enough for this channel🙌 From india🇮🇳

[@lunalisapotsangbam5194]

Clarity personified!! I thoroughly enjoyed!

[@edwfrancis]

Fantastic - I am happy I came across your post, this is so helpful - thank you

[@discourseonlawandpolitics4749]

Really very nice . I am surprise to see that such channels are existing which has deep academic discussion. Love from India

[@Sleekflight1]

Thanks Jeffrey! Excellent style and video!

[@sarahjones5360]

Very engaging discussion! Much better than my online lectures where I was falling asleep 😅

[@michaeltucker5327]

This is unbelievably good at teaching the topic... I have been confused in Jurisprudence for months and now it seems to have clicked...

[@profjeffreykaplan]

Thanks! Glad it was helpful.

[@BabylonCentral]

A true teacher at the summit.

[@humashoot6096]

Sir ..i m very very thankuful to u ...a year ago i prepared my philosophy paper only from your video.....and i got 4 out of 4 GPA ....thankuu sooo much ..fot uploading such a usefull information .....lotssssssss of love from Pakistan ❤️❤️

[@HB-ms3mt]

Woww Thank u so muchhh for the explanation!! You pick a word to explain this in a simple way so for me as a non-english speaker country (Indonesia) I feel like I completely understand of what ur talking about. Especially when you illustrate a word with metaphore I don't have to pause it first and search the meaning on a google. LOL . Anyway I'm in the first semester studying about the Introductory of Law. That's why I got lost here in order to digging more about the explanation of the legal positivism. Also I've just watched some other legal theories you've made so I decided to hit my subscribe button, Greatt jobb sirr!!

[@katekawira8026]

Excellently put! You have made the complex theory so simple...thank you.

[@profjeffreykaplan]

Thank you!

[@sylviaj270]

This lecture helped me to understand this subject. Thanks.

[@IIChrisMuseII]

This could not have been more helpful! Thank you Sir.

[@profjeffreykaplan]

Glad it helped!

[@denadineangeli8962]

thank you! this video really helps me to do my assignment about legal positivism. keep going!!

[@SurajMotiwala]

Love your lectures man!!

[@KanishkaGautam_KG]

Thank you for uploading such informative videos. I have watched most of the videos in this playlist. After years of going through jurisprudence articles, I can finally articulate the theories in my words. These are great videos, I would have loved to have you as my professor in law school. Can you please share the name of specific articles that you normally teach/recommend in your classes?

[@walterhorn1111]

Your videos are terrific. You're a much better philosophy teacher than I ever was (and as good as any I ever had--and in grad school I had Rod "the God" Chisholm!). Or whatever. Or something like that. BTW, I was at Brown at the same time as the (one-time?) Chairman of your Dept. at Greensboro, Gary Rosencrantz. Say hi to him for me.

[@profjeffreykaplan]

You know Gary! I will certainly let him know that Walter Horn says hello through the internet. And thank you for the kind words about my teaching!

[@klauscheung8235]

Brilliant piece！

[@vaishnavitiwari5554]

oh my god thankyou so much for this gold content

[@samverebes4564]

great video. Extremely helpful!

[@profjeffreykaplan]

Glad it was helpful!

[@lurissasookdeo1463]

You are brilliant, skilled and gifted

[@bm239]

Listening to this lecture made me think about an aspect of Stephen Skowronek’s cyclical theory of political time. Legal positivism seems to be, to me, a power vs authority issue. You may have the power as a judicial body to create laws but you also need to authority aka legitimacy via public sentiment to introduce those laws. While the law may not be the “right” or “moral” law to pursue, it is what the public asks for. Natural law may be more akin to policy pursued purely on data (descriptive normality?) That does not follow public opinion at the time.

[@amazog]

Great job, young professor.

[@AlexMiddleton111]

Thank you so much, this is crucial to me right now in writing a paper due in 8 days. My professor has a thick accent and with digital interruptions it is hard to take good notes on his lectures.

[@profjeffreykaplan]

Glad it was helpful!

[@UnfoldingwithMo]

Amazing teaching. Thank you!!!!

[@gilayefet9126]

Fantastic lecture

[@aftoncolliton4540]

The squash tangent was amazing

[@profjeffreykaplan]

Ha, thanks! I really let myself go off there.

[@kemalhayrimzrakl5086]

thank you so much for all of this

[@beatricekelly-russo487]

This is so cool, thanks so much for making them

[@profjeffreykaplan]

My pleasure!

[@andrei4716]

great content !

[@naomitorrecampo2618]

This is really helpful to me. Thank you!

[@profjeffreykaplan]

You're welcome. Glad to help!

[@150_md.mahinabdullah7]

May god bless you thank you sir I am forever grateful love from bangladesh

[@deeshareshmi8338]

Thanks a lot. This is very helpful!

[@profjeffreykaplan]

You're welcome, glad it was helpful!

[@martinc4934]

this was amazing

[@Advocate7Asaf]

I am student of Law at Pakistan and after graduation I am thinking to do master in Philosophy if God Almighty welling. That's why in my free time I come here to watch lectures really I learned a lot from these lecture, I am not lucky to join your classes physically but it's also my good luck at least I am watching it here on KZbin in my home/university.

[@tommyj7825]

I believe Frédéric Bastiat does the best job describing natural law and eloquently argued its superiority.

[@tAntrik18]

Awesome!!!!

[@Stephen12396]

Is there a chance you could do a video on natural law to look at Lon Fuller and the debate he had with Hart regarding legal positivism and natural law?? Or split it into two separate videos?

[@Gunsales1000]

Squash is played over here in Ireland by anyone that wants to play it, no matter what your social circumstances. It is played like hand ball "the Irish and mexican version".

[@kaiduong4062]

yup irl

[@ishxd8052]

Im stuck on evaluating the separation theory, your videos have been amazingly helpful in understanding these concepts so far, could you weight in towards how i could go about doing so?

[@ve_rb]

The separation theory is shit

[@Tor_kor]

Thank you mister Kaplan, my partner and I have long been having problems with sexual intercourse, but while watching your video, it happened so that we felt a sudden rush of passions and engaged in lengthy, steamy intercourse. Thank you.

[@kinghenryofhighbury]

great video, is there anything else on critical legal studies theory?

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Pay KZbin go bring your channel on searches man. I stumbled literally

[@adrianedson5448]

Thank you!

[@asifulhasanomit2781]

You are the best

[@Dz-rt9fk]

4th year law student here, thank you so much for these videos they are so helpful!

[@jestermoon]

Take A Moment Thank you for your work. Stay Safe Stay Free 🌐

[@daffadhiya6781]

thank you so much.

[@nicklausbrain]

Legal positivism is a bane of humanity

[@MadnessSpeaks]

This guy is writing backwards perfectly legibly without missing a beat

[@MrDiaxus]

It seems to me law is a social phenomenon in the same way building skyscrapers is a social phenomenon. That the endeavor requires social coherence and agreement does not remove the other relevant issues, such as purpose or use, adherence to natural laws (i.e. gravity, wind, plate tectonics, etc). "Social phenomenon" does not automatically dismiss the "ought."

[@maximilyen]

Very good.

[@wellysuriady9087]

I am very interested in how he writes mirrored texts from the back of a glass.

[@toshbel]

Useful. Thank you.

[@profjeffreykaplan]

You're welcome!

[@pandiatonizm]

Great!!

[@hannesproductions4302]

Why isn´t this guy my teacher. Keep it up

[@hollynonya6991]

And the problem, when you get law makers who don't believe in Natural Law or Natural Rights 🤷‍♀️ They attempt interpretation of the Constitution to fit their philosophy rather than the other way around

[@opinionate-by-thesyllogist]

Professor Kaplan, will you consider to talk about the debate about whether math is subjective or objective in the future? :)

[@shekukamara9180]

I found my channel. God bless you

[@felipemontero9839]

I wonder what positivists have to say on the creation of law. One can treat law as a social fact when it's already there but when it comes to create the institution of law then there must be some guiding principle, whether this is morals or a religion, etc. It seems clear that law must have some ground beyond itself that would explain how it came to be. Or am i misundertanding something? Great videos by the way, I find them really helpful.

[@profjeffreykaplan]

Good question. Legal positivism is a thesis about what has to be true for a legal system to exist (specifically, it says that certain social facts need to obtain). It is undoubtedly true that when creating (and even maintaining) a legal system, the people involved with believe moral beliefs, will believe religious doctrine, etc. But *the fact that they believe those things* is a descriptive, social fact about what is going on inside their brains and what sound waves are coming out of their mouths. So the positivist has no problem granting that legal officials and others have moral ideas. Does that make sense?

[@felipemontero9839]

Jeffrey Kaplan thank you for your answer. Would it be correct to say that the difference between the positivist and anti-positivist stances is not so much the entities that they describe but their ontological status? For example, Hart takes the internal attitude which involves criticism of other people’s conduct as a mere social fact whereas Dworkin sees it as a interpretation of a norm that involves moral principles. I ask because It seems to me that the line that separates the criticism of the internal attitude in Hart and interpretation in Dworkin is very thin. So it seems to me that the main difference is in how they approach that similar phenomenon: as a social fact in Hart’s case and a morally charged interpretation in Dowrkin’s case.

[@felipemontero9839]

@@profjeffreykaplan I've thinking about this a lot and I think i can express my point more clearly. What I find paradoxical is that Hart (vs Austin) argues that it is essential that people take the sanctions of the sovereign to be justified. That is, they are not merely grounded on force (as the sanctions backed by threats of Austin. However, given he is a positivist, he doesn't take this process of justification as an interpretative process that involves moral reasonings. However, if the ultimate ground of law is this social pressure to act in acordance with the rules of obligation, aren't the subjects reduced to automata who determinate their feelings of disaproval on the basis of the rule of recognition? This is what I mean with the ontological difference regarging the object of study in Dworkin and Hart. While Hart takes humans as biological entities that produce certain sounds and have certain mental states, Dworkin takes them as subjects who actively involve their moral consideration to interpretate the actions of others.

[@DMT4Dinner]

Abolish legal positivism

[@efenty6235]

i guess “shut the door!” is not a statement about the world but it implies that whoever is giving the command believes some statement like “if the door was shut, the temperature of the room would be more pleasant” and you can argue against this if you think the air is too stuffy and the door’s better left open

[@lauraandrade5966]

amazing

[@Undisciplined]

Great video! Over on my channel I do careful readings of classic Positivist texts, currently Hans Kelsen.

[@supriadisupriadi8142]

thank you 🙇

[@profjeffreykaplan]

You're welcome!

[@pasafauzan7026]

This guy much better than the whole Indonesian Law School that sucks

[@kinghenryofhighbury]

struggling with this module.

[@dogsdomain8458]

Would legal postivists just say that laws are certain socially constructed norms that are regarded as authoritative by enough people and is enforced by the state? Or perhaps just regarded authoritative by the state?

[@profjeffreykaplan]

Most legal positivists would say that something more than that is required for some norms to count as laws. For example, HLA Hart (the most famous and widely-cited legal positivist), thinks that in order for some socially constructed norms to count as laws those norms have to be part of a multi-leveled system, such that some of the norms say how to change other norms (like how a city bylaw says what procedure the city traffic commission has to follow in order to change the city traffic laws; that is an example of a norm specifying how you can change other norms). I will have two videos about Hart's view up in a day or two. But in general positivists do say something broadly like what you have in mind. Here is a video about the legal theory of another legal positivist, John Austin (though it is Austin's theory are summarized by Hart): kzbin.info/www/bejne/ZneZY5p3ZrF6nNk

[@profjeffreykaplan]

I just posted the video explaining part of Hart's version of positivism: kzbin.info/www/bejne/jpjCanlonZ1siqc

[@dogsdomain8458]

@@profjeffreykaplan thanks

[@martingeorgehoudini9321]

Perfect

[@makarionphirangee8112]

How are you doing this? Is there a mirror? Or are you incredibly skilled at writing backwards ?

[@edmondhellawell3869]

this guys good

[@humashoot6096]

Plz make video on phenomenalism

[@NowshinRahmanShimu]

Sir please provide us an lecture on austin's imperative theory of law. That would be really helpful. I'm really struggling with this subject. By going through the books, I can't understand a thing. This lecture helped me understanding positivism and also i had better idea from the lecture you gave of utilitarianism.

[@profjeffreykaplan]

Here is a lecture on Chapter 2 of Hart's "The Concept of Law" and the whole purpose of that chapter is to summarize Austin's theory: kzbin.info/www/bejne/ZneZY5p3ZrF6nNk And most philosophers of law or analytical jurisprudence scholars accept that Hart's summary of Austin is broadly accurate, so this should be helpful.

[@NowshinRahmanShimu]

@@profjeffreykaplan thank youuuu

[@user-fr7zm1hr7v]

It is fun that you emphasize Joseph Raz is still alive LOL

[@zmabasoziphomabaso3875]

❤️❤️❤️👏

[@kiky.mp4]

That explanation about squash got me ROFL... "snobby and elitist" LOL

[@jmjro]

You had me at squash

[@piyushrajput3907]

Why analytical school is called positive school Can any one please answer

[@WerewolfSlayerG]

❤this for LLM 🎉

[@myxomatosisification]

Does he writes backwards??

[@brandunerbarney4035]

Being that law is based on theory, due to the lack of a single definition of the words being used in the law. A law can only exist when it is being used to force an action on an individual. Law can only be reactionary. To debate an interpretation of a law is invalid without the individual who wrote the law present to define the words used in the law.

[@lexiparsons350]

How is Legal Positivism different than a Theocratic Regime?

[@sharontorsu1427]

Pretty amusing for me when he says 'or whatever'🤣🤣

[@gcvrsa]

I don't think that I have ever in my life met any proponent of natural law theory who is somehow unaware of the fact that unjust laws can be and are in fact regularly enacted. We recognize, of course, that laws as enacted carry the imprimatur of due process (even when they ultimately violate due process in their provisions) and will be considered legally enforceable by the agents of the state; however, this still does not make those laws just. Legal positivism can never be more than a descriptive theory-the law is what the law is, as written and as enacted; any claim that positivism can morally legitimize law in and of itself is flatly in error. There exists no moral duty to obey injust laws. Indeed, there is a moral duty to disobey them.

[@fsabouni]

What if what you consider immoral most others would consider not immoral?

[@cmel1e661]

I'm just wondering how you filmed this and wrote this facing the camera all while your writing appears the right way around from us on whatever youre writing on???? Like if the camera is facing through glass and youre on the other side are you just skilled at writing backwards lmao

[@profjeffreykaplan]

You are definitely not the first to ask! In fact, I get this question so frequently, I made a video explaining how it works: kzbin.info/www/bejne/bJDHZWeYocaSfaM

[@cmel1e661]

@@profjeffreykaplan that’s genius 😂 also thank you for these videos got myself an exam tomorrow and up until these videos I could not understand this subject, you really explain things well

[@joeydutton8074]

Are you actually writing backward?

[@barneyblimp1498]

Yo homie-make some shit about Weber, kelsen, and schmitt

[@alexeyyakobson2254]

I don’t get the difference between the expressions and statements. In my opinion “boo” is a full equivalent of “I hate it”. It’s a message telling other people about my attitude to something. And it can be true or false. It’s true if it’s a sincere “boo” and false if it’s a fake one.

[@connoisseurofcookies2047]

You cannot argue and communicate that you cannot argue and communicate, that'd be a contradiction in terms. In disagreeing with that statement you would also have to believe argumentation and communication is possible. Words don't exist in a vacuum, they exist to communicate a message using the means at your disposal, your body, and are interpreted given the context they're uttered in by the recipient's sensory faculties. Emotivism, when you think of it, is a rather absurd view to have.

[@maxheadrom3088]

So ... I follow a colleague of yours on Twitter and I made a joke saying "inclusive positivist law was kind of woke" ... but the joke went nowere. What is the "inclusive" in "inclusive positivist law"? Thanks!

[@mathemagicalmonk2084]

Legal Positivism talks about called Power, not Law. Separation thesis basically said that Power is different from Law.