Re: Property and the Law

From: Technotranscendence (
Date: Wed Jul 25 2001 - 09:20:14 MDT

On Tuesday, July 24, 2001 10:13 PM T.0. Morrow wrote:
> False dichotomy warning: Legal positivism and natural law are not
> opposites.

I'm not sure about that. 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 agreeing
with libertarian laws, BUT that would only be by coincidence.

> Although most positivists embrace statism, they need not.

See above. My argument is not what concrete positions they take, but with
their methodology as I understand it.

> Positivism,
> properly construed, merely requires that we define "law" by reference to
> rules that effectively control human social behavior. Nor, though many
> need an advocate of natural law adopt the view that natural laws come from
> God, or Kantian edicts, or other such noumenal realms. Advocates of
> law can embrace a positivist methodology, arguing that natural laws are
> that in practice prove effective--"natural" if you will--to ordering human
> societies. See, e.g., Hayek's explanation of the evolution of law.

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. While there are unintended consequences and
these play a big role -- perhaps the biggest role -- in shaping society, we
cannot sheepishly accept whatever is as be the thing that should have been.
To do so only leads to circularity. For example, we would have to embrace
whatever legal contradictions that exist because these, after all, evolved.
This would include the welfare state, Communism (when it existed), and the
like. This would lead to a quetist conservative attitude toward politics
and the law.

The truth is both intentions and unintended consequences matter in
explaining and changing society. Regarding the relation between the two, we
must be aware that when we act, we don't always get what we want -- that
there are limits on what can be done. (See Chris Sciabarra's _Marx, Hayek,
and Utopia_ for a detailed analysis of the strengths and weaknesses of
Hayek's views. Also, his _Total Freedom: Toward a Dialectical
Libertarianism_ contains a brief discussion of Hayek in relation to other
dialectical libertarians. See his web site at


Daniel Ust

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