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Legal positivism and property rights: a critique of Hayek and Peczenik

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Author Info
Niclas Berggren ()

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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. Copyright Springer Science+Business Media, LLC 2006

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File URL: http://hdl.handle.net/10.1007/s10602-006-9004-y
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Publisher Info
Article provided by Springer in its journal Constitutional Political Economy.

Volume (Year): 17 (2006)
Issue (Month): 3 (September)
Pages: 217-235
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Handle: RePEc:kap:copoec:v:17:y:2006:i:3:p:217-235

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Web page: http://www.springerlink.com/link.asp?id=102866

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Related research
Keywords: Legal positivism; Property rights; Constitutionalism; Hayek; Hart; K11; O17; P14; P48;

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References listed on IDEAS
Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
  1. Berggren, Niclas, 2003. "Does Belief in Ethical Subjectivism Pose a Challenge to Classical Liberalism?," Ratio Working Papers 27, The Ratio Institute. [Downloadable!]
  2. Christian Schubert, 2004. "Hayek and the Evolution of Designed Institutions: a Critical Assessment," Papers on Economics and Evolution 2004-11, Max Planck Institute of Economics, Evolutionary Economics Group.
  3. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, MIT Press, vol. 117(4), pages 1193-1229, November. [Downloadable!] (restricted)
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