Re: Property and the Law

From: Russell Blackford (
Date: Wed Jul 25 2001 - 21:29:46 MDT

T0Morrow said

>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
>theories a preference for statist over other types of law. Here's Austin
>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
>state of subjection to its author." John Austin, The Province of
>Jurisprudence Determined 202 (Noonday, H.L.A. Hart ed 1954). A better,
>honest positivism would, I think, recognize that laws come from a variety
>sources, some statist and some not.

Well, yes, but to be fair to Austin he had a very flexible view of the
concept of the "sovereign". I think he'd have said, for example, that in
some systems the sovereign is whatever super majority of the people can
alter the constitution.

You say:

>You can take both a positivist view of law and
>support a form of natural rights.

This is doubtless true, though a good legal positivist would not be inclined
to call them *law*. In any event, modern legal positivists are very
sophisticated people. Anyone who thinks otherwise should read Joseph Raz's
many jurisprudential works carefully.


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