Overview of Legal Theories and 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 H.L.A. Hart. and then two chapters of Hart's book criticizing Austin. We're going to get on to Hart'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. There's 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 some time ago. by St. 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, some putative law has to meet some minimum moral standard. For today, We read a few pages from a textbook edited and written by Davies and Holdcroft. And the pages that we read 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 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. And so what Raz has in mind are the views of Austin, which we've been considering. 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 Hart'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 Hart 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 Hart, where Hart is also trying to understand what legal positivism is. 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 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 legal positivist thesis. And then the other ones are not so important. 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 Hart 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... Hart 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, well, true justice or something like that, right? So if the right people accept the legal system, say, and the Congress members pass some law and the gavel gets banged, these are all social facts. And then 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 Hart says, and some of these are a little confusing and will need some explanation, I suspect, that Hart says are often associated with legal positivism, even if they are not essential to it. So here's what Hart says. Keep in mind, this is an alternative idea that's in the back of the mind, Hart 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, 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 Hart 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 thoughts we have, one of our ideas. A concept is an idea. 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. 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 like racquetball. You play it inside of like a contained room or something. Oh, God, I didn't plan that I was going to 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 goes. books 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. 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 got to 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 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 what I'll call the 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 So there's all sorts of associations, all sorts of baggage that goes along with squash. That it's like snobby, right? And that 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 can be, strictly speaking, there can be a game of squash, right? 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 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 of 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 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, 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 does 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, 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 morals, social aims, functions, or otherwise. That is, 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 what Hart 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 the final and fifth one, actually, that he mentions. We're only going to talk about three of them 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 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 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 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 going to 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, 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, and 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. They look like they can be true or false. Murder is wrong is true if murder really is wrong, and it's false if murder really isn't wrong. These look on the surface like statements. But what if you thought that there were no objective moral facts? Or maybe you thought even that 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 false to say that murder is right. And it's false to say that charity is good because nothing is good. But it's also false to say that charity is bad because nothing is bad either. If you're a moral nihilist, one thing you can do with all this moral talk is you can say it's all false. 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 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 really just, well, it's non-cognitive. So cognitive is sometimes a 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 as 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 that ethical statements, or moral statements, I'm using ethical and moral synonymously here. 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 this second thing was a moral issue. And this 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 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 view fits as an addition, right? Is that there is no fact about what law ought to be? Indeed. 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 think 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 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, you know, in the middle of the 20th century, and it's... somewhat popular still today, although less so, I would think, 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 phenomenon. Ultimately, 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 by Congress and which, well, if your heart, which attitudes the population has towards the Constitution or towards the legal officials or whatever. 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, Hart'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.

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 H.L.A. Hart. and then two chapters of Hart's book criticizing Austin. We're going to get on to Hart'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. There's 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 some time ago. by St. 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, some putative law has to meet some minimum moral standard.

For today, We read a few pages from a textbook edited and written by Davies and Holdcroft. And the pages that we read 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 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. And so what Raz has in mind are the views of Austin, which we've been considering.

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 Hart'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 Hart 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 Hart, where Hart is also trying to understand what legal positivism is. 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 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 legal positivist thesis. And then the other ones are not so important. 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 Hart 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... Hart 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, well, true justice or something like that, right? So if the right people accept the legal system, say, and the Congress members pass some law and the gavel gets banged, these are all social facts. And then 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 Hart says, and some of these are a little confusing and will need some explanation, I suspect, that Hart says are often associated with legal positivism, even if they are not essential to it.

So here's what Hart says. Keep in mind, this is an alternative idea that's in the back of the mind, Hart 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, 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 Hart 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 thoughts we have, one of our ideas. A concept is an idea.

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.

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 like racquetball.

You play it inside of like a contained room or something. Oh, God, I didn't plan that I was going to 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 goes. books 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. 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 got to 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 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 what I'll call the 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 So there's all sorts of associations, all sorts of baggage that goes along with squash.

That it's like snobby, right? And that 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 can be, strictly speaking, there can be a game of squash, right? 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 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 of 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 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, 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 does 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, 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 morals, social aims, functions, or otherwise.

That is, 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 what Hart 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 the final and fifth one, actually, that he mentions. We're only going to talk about three of them 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 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 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 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 going to 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, 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, and 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. They look like they can be true or false.

Murder is wrong is true if murder really is wrong, and it's false if murder really isn't wrong. These look on the surface like statements. But what if you thought that there were no objective moral facts?

Or maybe you thought even that 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 false to say that murder is right. And it's false to say that charity is good because nothing is good.

But it's also false to say that charity is bad because nothing is bad either. If you're a moral nihilist, one thing you can do with all this moral talk is you can say it's all false. 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 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 really just, well, it's non-cognitive.

So cognitive is sometimes a 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 as 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 that ethical statements, or moral statements, I'm using ethical and moral synonymously here. 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 this second thing was a moral issue. And this 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 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 view fits as an addition, right? Is that there is no fact about what law ought to be? Indeed. 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 think 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 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, you know, in the middle of the 20th century, and it's... somewhat popular still today, although less so, I would think, 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 phenomenon. Ultimately, 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 by Congress and which, well, if your heart, which attitudes the population has towards the Constitution or towards the legal officials or whatever. 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, Hart'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.

Transcript for:Overview of Legal Theories and Positivism

Transcript for:
Overview of Legal Theories and Positivism