@@김찬-s7u Its been almost 9 years and here Iam utilizing this video. It is so precise, clear and on point. the Lecturer is clear and well articulated on the subject matter. Iam definitely acing my exam.
I'm watching this video nearly 10 years later as preparation for my final assessment for my first year of law in Australia, and you have helped me understand this so much more easier than what my lecturers have. I thank you so much.
Your videos are helping me a lot. It's really hard for an international student like me to read the original texts by these writers because they are all written in Old English. Your lectures are making it simpler for me. thank you so much :)
The sovereign 'decides' what laws to pass on the basis of his/their/her own subjective morality. Positivism doesn't say that laws cannot be enacted for moral reasons; it merely says that law does not necessarily have to have a moral content, and that a moral content cannot be ascribed to a law merely because law is a set of 'ought' propositions. So to say that one 'should not' steal does not suggest anything about the right/wrongness of stealing. It is merely a statement that one 'should not'. To ascribe a moral content to this is to show one's subjective preference for certain types of conduct, but the law can exist and be perfectly valid without any moral statement attached to it.
I can go with this. I would probably highlight that it is impossible to strip a law of moral content; it is inevitable when preferences are codified in positive law. What we usually do is simply conceal it with rhetorical devices such as equality, neutrality or, as you seem to imply, rationality.
The most important distinction though from a philosophical perspective is that positive law is based on the idea that morality is in fact relative, whereas natural law is based on the idea that morality is objective. And on the same note, Positive law is ultimately arbitrary while natural law is not. So murdering millions of Jews is okay according to positivists, so long as the majority agrees. And the State becomes less concerned with justifying itself and more concerned with indoctrinating the masses.
So basically you could say that the differences between positive law and natural law theory is very similar to the difference between "consequentialism/utilitarianism" and "deontology".
Thank you so much. This has definitely helped with my essay. I've been trying to understand how positivism can link into the question. 5 minute video which clearly explained what positivism is about.
mohsenalattar1 I'm glad to hear that. I had an assignment 'Law is Politics' so being able to understand the difference between natural law and positivism was imperative. Hopefully I did well. Keep it up :-)
True. You should have a look at Critical Legal Studies and the distinction between value consensus and value antagonism based legal theories. Those will surely help you argue both for and against the assertion. I hope you get an A!
+mohsenalattar1 Thanks. I will consider that for next assignment. I focused predominantly on Natural Law and Positivism but did consider Hart's Separation of Morals. It was a difficult answer, in that it was more philosophical than administrative law. Hopefully I got a 2:1!
Basically he is saying that everything is based on the social hierarchy. A law is valid so long as the rest of the society are prepared to put up with the ruling group who is it's author.
For example, in theory does that mean that if a sovereign entity of a sporting commission enacted rules within a game, they would be considered law? As they are valid rules and are accepted by society
If both theories are influenced by a political decision making process as in the drafting of a Statutory enactment, we could influence it's cause and effect by the process of Amendment of the Acts Interpretation. Technical provisions, definition and challenges thru precedent dependant on such merit and legal principles inherent in both Due Process, Natural Justice, Common Law Rights and Judge Made Law may invoke doctrines and principles that limit or narrow the Laws definition or application dependant on its Statutory Framework. Tests such as the reasonable person test or Community standards, bias and or Discrimination, has it a review process to remedy an aggrieved persons challenge. It's light to say the Draftsmens task is not an easy one.
@mohsenalattar1 my final exam is coming up and I really need your help! How would you tackle this question: "Do you agree with the statement that Dworkin is a soft positivist?" Thanks in advance!
I would say not because although soft positivists may in some degree accept morality they still put written law/valid law as superior (e.g a rule of recognition) while Dworkin considers both written law (rules) and morality (principles) to be equals. Now hierarchy is important because positivists contemplate a model where there is a master law or superior law (Hart RoR, Kelsen's groundnorm) that validates the other laws, while Dworkin doesn't agree with that perspective of law, but instead considers rules to be of equal hierarchy which: 1. are built from legal practice and 2. are more important than others but only in particular cases (example: R1 and R2 are of equal hierarchy, but in case A R1 is applied and in case B R2 is applied) Also positivists agree with judicial discretion while Dworkin does not because for him there is "One Right Answer" for every case. Positivists however consider that judges need to use their discretion to solve the open frame of laws. Hope it helped! (and hope I'm not wrong)
Hi, with regard to the final consideration of this video? how do I draw a distinction and analogy to Austin Habitual Obedience? Can you help me on this? thanks.
Excellent question. The tax man enjoys habitual obedience by this I mean we pay taxes, mostly, without a second thought. This is different from the gangster who will usually only be obeyed if the coercion is persuasive enough.
+mohsenalattar1 the thing is that critical reflective attitude doesnt seem to have much different from the habitual obedience. Do you mind clarifying this?
+Abel Wee Best if you read Hart's critique of Austin. You have stumbled onto one of his main challenges and he can explain far better (and in more detail!) than I can.
It is rather a dubious account of Kelsen's legal theory. Kelsen's Grundnorm is by no way a matter of social acceptance, unlike the rule of recognition of HLA Hart. It is one of the basic differences HLA Hart saw between his theory and Kelsen's Pure Theory.
Almost certain I'm too late but here are some of my favorite examples. Boston Massacre Trial 1770: Kind of a mess. Colonists say the British soldiers fired on them without cause. Soldiers say they were being roughed up and a gun accidentally discharged setting off a chain reaction. The colonists demanded they all be hung. John Adams defended them in court when none would. Positivism would be in favor of the soldiers. Natural Law (in theory) would be in favor of the soldiers too but natural Law is inherently flawed. The Grudge Informer: German woman turned in husband to Nazi police because she was tired of their marriage. What she had done was legal under Nazi laws but denied him his "natural rights". Positivism would say what she did was legal and she could not be punished. Natural Law says what she did is wrong and should be punished. Edward Snowden: Illegally leaked government documents and secrets to expose them. What he did was moral but illegal. Positivism would have him jailed for treason. Natural Rights would find him not guilty because he did what was right. Riggs v. Palmer: Man poisoned his grandfather??? To ensure his grandpa didn't change his inheritance because he of all the siblings was to get the most. Positivism says he still gets the money but has to go to jail. Natural laws see what he did is immoral and doesn't give the inheritance. Ice Trucker - Gorsuch: Too much to explain. But a more modern and relevant one. May I also suggest the rescinding of Trump's travel ban. Because I don't want to take the time to explain it, I am in favor of positivism and this video is a gross misrepresentation of positivism.
+shelleyfunny19 That's part of the challenge with positivism / natural law. For the former, the correct authority is the sovereign. For the latter, it's more complicated.
+mohsenalattar1 That's the kind of answer I used to get from the nuns in catholic school, "mysterious ways". Let's get to the complicated, Prof. I can deal.
+shelleyfunny19 Likened to a Catholic nun? My stock value must be plummeting! With natural law, the correct authority is usually one of three: god, nature, or reason, hence why I say it is complicated. See my clip on natural law for greater clarification.
I will most def peep that vid. btw your Hart/Dworkin vid catapulted me to a great paper re Cohen's F the Draft jacket in the courthouse CA case. So thanks for that. Stock value elevated! (I REALLY do appreciate your work, you're amazing, precise and concise :)
Who is the sovereign? The State? If a positivist law actually interferes with the sovereigns rights or forcing compliance then isn't it a duty for the sovereign to disobey the law for lack of a better term? Where is the remedy if said sovereign then gets ticketed for a negative law created by legislators?
I don't understand how the government as a creation of the people be a sovereign. It can't The Law of Cause and Effect dictates that the People are the Sovereign and the government is the creation of the sovereign. Therefore, government has no authority to create any laws by powers other than what was granted to it. Positivism is Non-Sequitur. It has no basis as a logical argument. BTW, Natural Law is not necessarily dependent on a deity. Natural Law need only rely on logic and reasoning. Since has no government authority to grant any Rights, the rights have to come from the people that created the government. They had to have that inherent capacity and in their inherent nature in the first place. Therefore, the only reasoning left standing is the natural rights based on natural law.
The example of the gangster (non-Gov’t) extortionist vs the Statist (Gov’t) extortionist is a perfect example to understand how positive law is a lie and a crime against all men everywhere... where as Natural Law is a righteous true Law. It doesn’t matter how many men accept it or don’t. What is just IS.
Morality is not “ irrelevant” in the study of legal ethics it s indeed key and central to the discuss and formation of our laws. I am not impressed. Please can you study further. I send my regards. Dworkin
Riots do not invalidate the given law, it merely leads to uneccessary imprisonment for breach of the same. You are confusing group moral codes and the formative framework and enforcement of laws. I do think you should study further before you offer your speeches to the public. I and my regards.Dworkin✨🌹✨
Please could this item be removed . Thank you. I do feel very sorry for the poor students in this regard. They should not have to suffer this type of assailment upon their senses. Rather brutish in my view. Very ill informed. Wants to be the important man✨🌹
I think the fact that even 5 years later Law 121 students are still using these videos to supplement their study shows how great and useful they are.
Thanks Lance. You've made my day!
Lance O'Riley so true
lol,
It has been 2years and I am using this instead of my current lecturer haha they are such disaster
@@김찬-s7u Its been almost 9 years and here Iam utilizing this video. It is so precise, clear and on point. the Lecturer is clear and well articulated on the subject matter. Iam definitely acing my exam.
Even 9 years later.... we still use it.
This prof if great. Clear and concise. The complete opposite of my prof. Thanks for uploading.
+Ben Circelli Cheers Ben. Profs vary in style and I am glad you find my approach accessible.
I'm watching this video nearly 10 years later as preparation for my final assessment for my first year of law in Australia, and you have helped me understand this so much more easier than what my lecturers have. I thank you so much.
man english language is my fourth language and this man does a excellent job, i wish i was his student
studying law, currently writing an exam on nuremberg trials, i read positivism rejects nuremberg trials, this video made me understand it, THANK YOU!
The book titled: “Scientific Proof of Our Unalienable Rights” contains a good perspective on how positivism should behave.
Your videos are helping me a lot. It's really hard for an international student like me to read the original texts by these writers because they are all written in Old English. Your lectures are making it simpler for me. thank you so much :)
My pleasure Hashani. Keep up with the texts also; you'll get the hang of it quickly I'm sure.
omg is there a full video this is bliss
Which one is the tax collector and which one is the gangster?? Is the gangster Natural law and the tax collector legal positivism???
The sovereign 'decides' what laws to pass on the basis of his/their/her own subjective morality. Positivism doesn't say that laws cannot be enacted for moral reasons; it merely says that law does not necessarily have to have a moral content, and that a moral content cannot be ascribed to a law merely because law is a set of 'ought' propositions. So to say that one 'should not' steal does not suggest anything about the right/wrongness of stealing. It is merely a statement that one 'should not'. To ascribe a moral content to this is to show one's subjective preference for certain types of conduct, but the law can exist and be perfectly valid without any moral statement attached to it.
I can go with this. I would probably highlight that it is impossible to strip a law of moral content; it is inevitable when preferences are codified in positive law. What we usually do is simply conceal it with rhetorical devices such as equality, neutrality or, as you seem to imply, rationality.
Soft positivists (Hart, Coleman, Himma) would agree with you. Hard positivists (Raz, Bulygin) would not
@@ConnectedSims23 And the God of positivism Hans Kelsen will agree.
The most important distinction though from a philosophical perspective is that positive law is based on the idea that morality is in fact relative, whereas natural law is based on the idea that morality is objective. And on the same note, Positive law is ultimately arbitrary while natural law is not. So murdering millions of Jews is okay according to positivists, so long as the majority agrees. And the State becomes less concerned with justifying itself and more concerned with indoctrinating the masses.
So basically you could say that the differences between positive law and natural law theory is very similar to the difference between "consequentialism/utilitarianism" and "deontology".
could someone tell him, he is such a eye candy!
amazing teacher
Perfect explanation
Thank you so much. This has definitely helped with my essay. I've been trying to understand how positivism can link into the question. 5 minute video which clearly explained what positivism is about.
+Ciri Cheers Ciri! You are encouraging me to produce more of these.
mohsenalattar1 I'm glad to hear that. I had an assignment 'Law is Politics' so being able to understand the difference between natural law and positivism was imperative. Hopefully I did well. Keep it up :-)
True. You should have a look at Critical Legal Studies and the distinction between value consensus and value antagonism based legal theories. Those will surely help you argue both for and against the assertion. I hope you get an A!
+mohsenalattar1 Thanks. I will consider that for next assignment. I focused predominantly on Natural Law and Positivism but did consider Hart's Separation of Morals. It was a difficult answer, in that it was more philosophical than administrative law. Hopefully I got a 2:1!
hmmmm
Basically he is saying that everything is based on the social hierarchy. A law is valid so long as the rest of the society are prepared to put up with the ruling group who is it's author.
Could you please link the readings of the Hart vs Fuller debate? It looks super interesting but I have no idea where to find them :/
For example, in theory does that mean that if a sovereign entity of a sporting commission enacted rules within a game, they would be considered law? As they are valid rules and are accepted by society
jurisprudence in a nutshell!! :D thankyou soooo much! your needed in the UK! lol.
If both theories are influenced by a political decision making process as in the drafting of a Statutory enactment, we could influence it's cause and effect by the process of Amendment of the Acts Interpretation. Technical provisions, definition and challenges thru precedent dependant on such merit and legal principles inherent in both Due Process, Natural Justice, Common Law Rights and Judge Made Law may invoke doctrines and principles that limit or narrow the Laws definition or application dependant on its Statutory Framework. Tests such as the reasonable person test or Community standards, bias and or Discrimination, has it a review process to remedy an aggrieved persons challenge. It's light to say the Draftsmens task is not an easy one.
this video helped me out alot, thanks!
My pleasure. Good luck with the course.
this prof is brilliant!!! helps a lot!!!
Good day! I just want to ask if it is OK to make a critical evaluation on Lionel Hart's concept of law vis-a-vis Lon fuller??
needed this so much i couldn't comprehend Hart's Positivism and the Separation of Law and Morals.i'm ready for my exam!
this man just went off
@mohsenalattar1 my final exam is coming up and I really need your help! How would you tackle this question: "Do you agree with the statement that Dworkin is a soft positivist?" Thanks in advance!
I would say not because although soft positivists may in some degree accept morality they still put written law/valid law as superior (e.g a rule of recognition) while Dworkin considers both written law (rules) and morality (principles) to be equals.
Now hierarchy is important because positivists contemplate a model where there is a master law or superior law (Hart RoR, Kelsen's groundnorm) that validates the other laws, while Dworkin doesn't agree with that perspective of law, but instead considers rules to be of equal hierarchy which: 1. are built from legal practice and 2. are more important than others but only in particular cases (example: R1 and R2 are of equal hierarchy, but in case A R1 is applied and in case B R2 is applied)
Also positivists agree with judicial discretion while Dworkin does not because for him there is "One Right Answer" for every case. Positivists however consider that judges need to use their discretion to solve the open frame of laws.
Hope it helped! (and hope I'm not wrong)
A law is accepted as valid so long as the law is accepted as valid.
I have just understood what I couldn't while listenning to my prof ( no offense but it's true) ...this is an amazing teacher
Thanks Pearl. I'm glad it makes sense now!
Thanks for this. It summarised the topic really well :)
My pleasure Juheina!
Where's the link to the debate please?
You are excellent! How can I see your whole lectures? :-)
great video
Thanks Roman.
I am a Naturalist, or so it seems
Hi, with regard to the final consideration of this video? how do I draw a distinction and analogy to Austin Habitual Obedience? Can you help me on this? thanks.
+Abel Wee Can you clarify? Which point are you referring to? Thanks.
+mohsenalattar1 in between tax man and the gunman model which heavily criticise by hart.
Excellent question. The tax man enjoys habitual obedience by this I mean we pay taxes, mostly, without a second thought. This is different from the gangster who will usually only be obeyed if the coercion is persuasive enough.
+mohsenalattar1 the thing is that critical reflective attitude doesnt seem to have much different from the habitual obedience. Do you mind clarifying this?
+Abel Wee Best if you read Hart's critique of Austin. You have stumbled onto one of his main challenges and he can explain far better (and in more detail!) than I can.
Would I be wrong in assuming that each and every law, including its parts can be viewed as human inventions?
+Wayne Royce It depends on which theoretical perspective you adopt. Practitioners of natural law would say that laws exist in nature.
Positivists say so. In fact that's the BASE of positivism.
Natural law theorists say otherwise: the laws exist in nature
Thank you so much. It helps a lot !
My pleasure Michelle.
It is rather a dubious account of Kelsen's legal theory. Kelsen's Grundnorm is by no way a matter of social acceptance, unlike the rule of recognition of HLA Hart. It is one of the basic differences HLA Hart saw between his theory and Kelsen's Pure Theory.
May Allah help you sir, you really helped me. I wish you were my professor.
What would be an example of a positivist court case
Almost certain I'm too late but here are some of my favorite examples.
Boston Massacre Trial 1770: Kind of a mess. Colonists say the British soldiers fired on them without cause. Soldiers say they were being roughed up and a gun accidentally discharged setting off a chain reaction. The colonists demanded they all be hung. John Adams defended them in court when none would. Positivism would be in favor of the soldiers. Natural Law (in theory) would be in favor of the soldiers too but natural Law is inherently flawed.
The Grudge Informer: German woman turned in husband to Nazi police because she was tired of their marriage. What she had done was legal under Nazi laws but denied him his "natural rights". Positivism would say what she did was legal and she could not be punished. Natural Law says what she did is wrong and should be punished.
Edward Snowden: Illegally leaked government documents and secrets to expose them. What he did was moral but illegal. Positivism would have him jailed for treason. Natural Rights would find him not guilty because he did what was right.
Riggs v. Palmer: Man poisoned his grandfather??? To ensure his grandpa didn't change his inheritance because he of all the siblings was to get the most. Positivism says he still gets the money but has to go to jail. Natural laws see what he did is immoral and doesn't give the inheritance.
Ice Trucker - Gorsuch: Too much to explain. But a more modern and relevant one. May I also suggest the rescinding of Trump's travel ban.
Because I don't want to take the time to explain it, I am in favor of positivism and this video is a gross misrepresentation of positivism.
Pure Style thanks!
Apply at the University of Auckland and hope you get into the right stream?
When you say, "the correct authority" do you mean an entity or a concept?
+shelleyfunny19 That's part of the challenge with positivism / natural law. For the former, the correct authority is the sovereign. For the latter, it's more complicated.
+mohsenalattar1 That's the kind of answer I used to get from the nuns in catholic school, "mysterious ways". Let's get to the complicated, Prof. I can deal.
+shelleyfunny19 Likened to a Catholic nun? My stock value must be plummeting!
With natural law, the correct authority is usually one of three: god, nature, or reason, hence why I say it is complicated. See my clip on natural law for greater clarification.
I will most def peep that vid. btw your Hart/Dworkin vid catapulted me to a great paper re Cohen's F the Draft jacket in the courthouse CA case. So thanks for that. Stock value elevated! (I REALLY do appreciate your work, you're amazing, precise and concise :)
Cheers Funny Shelley! I'm glad the videos are proving helpful.
can i have the text please...
Unfortunately I don't have the notes anymore.
Who is the sovereign? The State? If a positivist law actually interferes with the sovereigns rights or forcing compliance then isn't it a duty for the sovereign to disobey the law for lack of a better term? Where is the remedy if said sovereign then gets ticketed for a negative law created by legislators?
just learnt more in 5mins than 3 hours of lecture waffle.
I'll pocket that compliment! Cheers!
I really hope this is not all that you need learn to pass your exam in american law faculties. If so, I have to say that you are very lucky.
Girl do german law if you want hard stuff
I don't understand how the government as a creation of the people be a sovereign. It can't The Law of Cause and Effect dictates that the People are the Sovereign and the government is the creation of the sovereign. Therefore, government has no authority to create any laws by powers other than what was granted to it. Positivism is Non-Sequitur. It has no basis as a logical argument.
BTW, Natural Law is not necessarily dependent on a deity. Natural Law need only rely on logic and reasoning.
Since has no government authority to grant any Rights, the rights have to come from the people that created the government. They had to have that inherent capacity and in their inherent nature in the first place. Therefore, the only reasoning left standing is the natural rights based on natural law.
Thank god I don't plan on being a legal theorist
The example of the gangster (non-Gov’t) extortionist vs the Statist (Gov’t) extortionist is a perfect example to understand how positive law is a lie and a crime against all men everywhere... where as Natural Law is a righteous true Law.
It doesn’t matter how many men accept it or don’t. What is just IS.
u used the word law 37 times in 5min 40 sec video.
+senthil ram lol
😂 because thats what he's talking about, what did you want him to use?😅
don't take Castro at Fullerton, you wont learn anything
Morality is not “ irrelevant” in the study of legal ethics it s indeed key and central to the discuss and formation of our laws. I am not impressed. Please can you study further. I send my regards. Dworkin
Riots do not invalidate the given law, it merely leads to uneccessary imprisonment for breach of the same. You are confusing group moral codes and the formative framework and enforcement of laws. I do think you should study further before you offer your speeches to the public. I and my regards.Dworkin✨🌹✨
Please could this item be removed . Thank you. I do feel very sorry for the poor students in this regard. They should not have to suffer this type of assailment upon their senses. Rather brutish in my view. Very ill informed. Wants to be the important man✨🌹