Positivism

Isn’t Legal Positivism a rather untenable theoretical viewpoint? I say that for two reasons.

1) Subjectivity is a necessary condition to the “fair” application of the law, what ever that means, and subjectivity, by it’s very nature, often eschews pure logic. According to positivism, a law passed by the proper means must be followed – whether subjectively just or not – until another law, properly passed, overrides it.

2) Positivism stands firmly against judicial review, finding, as previously stated, that laws properly passed must be followed; the courts having no right to adjudicate on the propriety of a law. But is judicial review not a natural step in the evolution of common law?

Just a thought…

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3 thoughts on “Positivism”

  1. I don’t remember all the names of the view points. However I believe positivism is advocate by Hart and I believe it is bull shit. Just a thought

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