Legal Positivism - the dominant theory in jurisprudence 

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'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

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.

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

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.

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 !!!

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".

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.

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).

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.

Ah, so this money-stuff gets me candy. No wonder this Musk guy wants all of it.

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. :)

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

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 RU-vid 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!

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.

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.

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

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.

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

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.

If I ever wanted to go back to get a law degree, you would be one of the profs I’d want.

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.

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.

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.

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.

Great presentation. Thank you so much.

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.

very grateful for this channel

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.

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.

Excellent Video. Legal Positivism incorporates Morality INDIRECTLY. Natural Law DIRECTLY incorporates Morality.

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!

"Natural Law Theory" itself can't be a "Law" in terms of "Legal Positivism".

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.

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.

Hello! Thanks for the amazing description! But could we in sepration theory call nominative law as legislation? And descriptive as law?

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.

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.

Wow I’m really early and i didn’t even realize! Great job man

Your voice always reminds me of Kieran Culkin’s. You sound like a really nice Roman Roy. Oh, and I also love your videos. 😊

Thanks, it's very easy understand from you, thanks,

Thank you so much Mr. Kaplan, very clear explanation!It is really thought-provoking

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.

Terrific explanation.

ur my fav professor!!

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.

Right on. Thanks for sharing.

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.

Reminds me to my favourite Philosophy Tube video about Social Constructs... :)

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 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

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.

can you continue uploading videos covering each chapter of HLA's hart a concept of law?

I wonder, do you have an opinion about the judicial reform in Isreal?

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.

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

An even more important question : How do you write those things on an invisible board?

Just finished law school two days ago (🎉) I’m not sure we can make generalizations about 3L course offerings.

You're an excellent teacher. I'm happy I found your work here.

Please do some review on Hans Kelsen's theory, sir... Thank you. 🙏

Any lecture on critical legal theories?

to sum up am I right that according the Natural Law Theory I can violate immoral law without public condemnation, but according Legal Positivism I can't?

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.

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?

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.

elevator rule? I face the door in preparation for walkin out of it in addition to monitoring which floor Im on. I guess i could practice counting the dings and then backpedal out the door and then turn around i dont know

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.

Explained perfectly.

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?

Hmmm, not sure those pants are actually fashionable Jeffrey... ;-) Great video, as always!

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.)

IF the _Right To Remain Silent_ is _The Wrong To Continue Speaking_ ; Then, Superior to both Natural Law and Legal Positivism is to simply ¹ Contract Specifically and ² Avoid Public Controversy. Debates are for Academics and Entertainers. Philospohers and Attorneys are both in that we are educators for crowds smaller than classrooms- and Paper Kings to specific groups, made up of minds which are bigger than our books but noticeably smaller than their televisions.

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.

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.

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.

"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..."

Excellent communication as always Mr. Kaplan. Thankyou.

how do you it? write on the glass normally such that the audience can read it?

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)?

What if the few are making laws for the majority on the pretense of, majority rule, doesn't that constitute a flaw, I think the separation thesis sounds good, it ideal, but not realistic, what do you think?

Really fascinated with your simple yet in depth explanation.

Legal positivism is difficult for third-year law students? It's literally one of the first things we were taught in Law School (Athens) at the age of 18. Most people get it pretty quickly.

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

Christmas came early? New Dr. Kaplan philosophy upload?

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.

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.

Is the law of gravity moral?

I don't know if this is relevant, but when the "separate but equal" principle was overturned by Brown v Board, segregation was no longer law; therefore, MLK Jr. wasn't breaking the law when he protested the continued practice of segregation. It's true that when he defied a legal injunction against "parading" in Birmingham, he was in violation, but when defying segregationist statutes pertaining to lunch counters, public conveyances, etc. he and others were not breaking the law from a positivist perspective.

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?

ur videos r so entertaining

What about Critical Law Theory?

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?"

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.

But why did you change thumbnail 🤔?

Hey, I face the door in an Elevator because THAT'S THE MOST EFFICIENT WAY TO EXIT. It's more WORK to face away from the door, spin around and THEN exit the elevator. I suppose I could face away and then back out, but then I could bump into somebody else trying to enter because I can't see them. It's not social, it's purely PRACTICAL! I don't do it simply because society wants me to do it that way.

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