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Hayek’s treatment of legal positivism

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  • Daniel Nientiedt

    (New York University)

Abstract

Friedrich Hayek devoted the later part of his career to investigating the legal rules required for the existence of a free society. The subject of this paper is Hayek’s treatment of legal positivism, which he thought was the most important intellectual movement responsible for the decline of liberal institutions in Europe in the early twentieth century. As shown in the paper, Hayek’s critique consists of two separate arguments: that legal positivism destroys the rule of law and that it amounts to constructivism. The first claim rests on the assumption that “true” laws comply with the rule of law principle, although the meaning of the adjective true is ambiguous. The second claim holds only for a particular variant of legal positivism. In addition to discussing these issues, the paper provides an assessment of Hayek’s own evolutionary theory of law, which was intended as an alternative to both legal positivism and natural law theory.

Suggested Citation

  • Daniel Nientiedt, 2021. "Hayek’s treatment of legal positivism," European Journal of Law and Economics, Springer, vol. 51(3), pages 563-576, June.
    • Handle: RePEc:kap:ejlwec:v:51:y:2021:i:3:d:10.1007_s10657-021-09684-8
    DOI: 10.1007/s10657-021-09684-8
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    References listed on IDEAS

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    1. repec:ucp:bkecon:9780226274904 is not listed on IDEAS
    2. Hayek, F. A. & Caldwell, Bruce, 2007. "The Road to Serfdom," University of Chicago Press Economics Books, University of Chicago Press, number 9780226320557 edited by Caldwell, Bruce, March.
    3. Hayek, F. A. & Caldwell, Bruce, 2007. "The Road to Serfdom," University of Chicago Press Economics Books, University of Chicago Press, number 9780226320540 edited by Caldwell, Bruce, Febrero.
    4. Niclas Berggren, 2006. "Legal positivism and property rights: a critique of Hayek and Peczenik," Constitutional Political Economy, Springer, vol. 17(3), pages 217-235, September.
    5. Daniel Nientiedt, 2019. "Metaphysical justification for an economic constitution? Franz Böhm and the concept of natural law," Constitutional Political Economy, Springer, vol. 30(1), pages 114-129, March.
    6. Hayek, F. A., 2015. "Capital and Interest," University of Chicago Press Economics Books, University of Chicago Press, number 9780226274874 edited by White, Lawrence H., March.
    7. Hayek, F. A., 2011. "The Constitution of Liberty," University of Chicago Press Economics Books, University of Chicago Press, number 9780226315379 edited by Hamowy, Ronald, March.
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    More about this item

    Keywords

    Legal positivism; Natural law theory; Constitutionalism; Cultural evolution;
    All these keywords.

    JEL classification:

    • H10 - Public Economics - - Structure and Scope of Government - - - General
    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)
    • P48 - Political Economy and Comparative Economic Systems - - Other Economic Systems - - - Legal Institutions; Property Rights; Natural Resources; Energy; Environment; Regional Studies

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