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

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  • 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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Bibliographic 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

Related research

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

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References

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  1. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, MIT Press, vol. 117(4), pages 1193-1229, November.
  2. Viktor Vanberg, 1999. "Markets and Regulation: On the Contrast Between Free-Market Liberalism and Constitutional Liberalism," Constitutional Political Economy, Springer, vol. 10(3), pages 219-243, October.
  3. Brennan,Geoffrey & Buchanan,James M., 2008. "The Reason of Rules," Cambridge Books, Cambridge University Press, number 9780521070904.
  4. Christian Schubert, 2004. "Hayek and the Evolution of Designed Institutions: a Critical Assessment," Papers on Economics and Evolution 2004-11, Philipps University Marburg, Department of Geography.
  5. Berggren, Niclas, 2003. "Does Belief in Ethical Subjectivism Pose a Challenge to Classical Liberalism?," Ratio Working Papers 27, The Ratio Institute.
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Cited by:
  1. Niclas Berggren, 2012. "The Calculus of Consent: some Swedish connections," Public Choice, Springer, vol. 152(3), pages 313-321, September.

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