Author: Berggren, Niclas

Source: Constitutional Political Economy, Volume 17, Number 3, September 2006 , pp. 217-235(19)

Publisher: Springer

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; K11; O17; P14; P48

Document Type: Research article

DOI: http://dx.doi.org/10.1007/s10602-006-9004-y

Affiliations: 1: Email: niclas.berggren@ratio.se

Publication date: 2006-09-01

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