Regarding Austin and other positivists of his ilk, I would argue that they
did not in fact practice what they preached in that they imported into their
theories a preference for statist over other types of law. Here's Austin in
his own words: "[E]very law simply and strictly so called, is set directly
or circuitously by a monarch or sovereign number to a person or persons in a
state of subjection to its author." John Austin, The Province of
Jurisprudence Determined 202 (Noonday, H.L.A. Hart ed 1954). A better, more
honest positivism would, I think, recognize that laws come from a variety of
sources, some statist and some not.
Regarding Hayek's alleged fatalism, I think that his writings cannot at all
support the view that we must simply accept as the result of evolution
whatever results from the competition among societies. He, like other legal
naturalists, adopts a more reflective and critical methodology, one that
draws on deep historical studies to evaluate the ability of various legal
systems to support peaceful and prosperous social life. It's a conditional
mode of reasoning, of course; if you don't like peace and prosperity, you
needn't like things like property rights and the rule of law. But it just so
happens that most humans dislike suffering poverty and violence.
Consequently, legal naturalism proves pretty convincing.
Regarding Rand, I would class her with theists, Kantians, and others who try
to justify natural law analytically. I respect such efforts, though I've yet
to find any such a prior justification of law or ethics convincing. More to
the point, for present purposes, such analytic approaches contrast sharply
with the empirical approach adopted by Hume, Smith, Hayek, and other "legal
The point, again, in brief: You can take both a positivist view of law and
support a form of natural rights.
In a message dated 7/25/01 5:14:35 AM, Daniel Ust writes, in relevant part:
>My understanding of thinkers like John Austin
>is that by legal positivism they mean what laws that exist are ones that must
>be and questions of what should be are unimportant. It's possible, in
>this context, to have a legal positivist inside a libertarian society
. . .
>Aside from the problem with Hayekian social theory -- a theory I generally
>agree with -- I've never maintained that natural law or individual rights
>have to be based on those things. In fact, my mentioning of the Objectivist
>view later in the same email should have led you to believe otherwise.
>(That said, I would not be so hard on Kant. I don't see him and Rand as
>the intellectual rivals she would have us believe they are.)
. . .
>And now the problem with Hayek. . . . we
>cannot sheepishly accept whatever is as be the thing that should have been.
>To do so only leads to circularity.
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