Hart’s Positivity

It has been argued that society’s laws do not turn on the values and mores of the society, according to Hart’s positivist viewpoint.

This is not a tenable argument, however. The most basic viewpoint of the positivist is that those laws justly passed are valid laws, and must be obeyed. Positivism does not allow for the disobeyance of laws that might be found immoral, unjust, unethical, or what have you (as with MLK’s viewpoint). Laws justly passed are the law – and must be obeyed. What positivism does not say is that the social norms, attitudes, mores, ethics,  morals, et cetera, cannot be a fulcrum upon which the passage of law balances. The positivist viewpoint focuses on the manor in which laws are passed; if the agreed upon – the legitimate – method for carrying laws into passage was followed, the law is just. The only way, in the positivist viewpoint, to unmake that law is to follow the process that created the law to begin with. Therefore, the social norms of the time can and do affect the creation of law in the positivist viewpoint, as long as that is allowable in the legal system in question; simply put, once those norms are codified into law, they may no longer rest on the will of public morality.

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