Legal Positivism and Property Rights: A Critique of Hayek and Peczenik

32 Pages Posted: 23 Oct 2009

See all articles by Niclas Berggren

Niclas Berggren

Research Institute of Industrial Economics (IFN); University of Economics, Prague - Faculty of Economics and Public Administration

Date Written: 2006

Abstract

Scholars such as Friedrich Hayek and Aleksander Peczenik have criticized legal positivism for undermining constitutionalism and the rule of law, an implication of which is weakened private property rights. This conclusion is far from evident. First, I contend that legal positivism is compatible with a strong support for property rights. Second, the causal relationship between legal positivism and the degree to which property rights are applied and protected is analyzed. The main arguments for a negative relationship—that legal positivism centralizes and politicizes legislation and that it makes the legal culture servile in relation to the political sphere—are considered unconvincing.

Keywords: Legal positivism, Property rights, Constitutionalism, Hayek, Hart

JEL Classification: K11, O17, P14, P48

Suggested Citation

Berggren, Niclas, Legal Positivism and Property Rights: A Critique of Hayek and Peczenik (2006). Constitutional Political Economy, Vol. 17, No. 3, 2006, Available at SSRN: https://ssrn.com/abstract=1491484

Niclas Berggren (Contact Author)

Research Institute of Industrial Economics (IFN) ( email )

Box 55665
Grevgatan 34, 2nd floor
Stockholm, SE-102 15
Sweden

HOME PAGE: http://www.ifn.se/nb

University of Economics, Prague - Faculty of Economics and Public Administration ( email )

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Praha, 130 67
Czech Republic

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