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

  • Niclas Berggren

    ()

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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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
Contact details of provider: Web page: http://www.springerlink.com/link.asp?id=102866

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  1. 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.
  2. Berggren, Niclas, 2003. "Does Belief in Ethical Subjectivism Pose a Challenge to Classical Liberalism?," Ratio Working Papers 27, The Ratio Institute.
  3. Edward L. Glaeser & Andrei Shleifer, 2001. "Legal Origins," Harvard Institute of Economic Research Working Papers 1920, Harvard - Institute of Economic Research.
  4. repec:cup:cbooks:9780521070904 is not listed on IDEAS
  5. 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.
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