Wednesday 2 June 2010
Law & Nature
To ascertain whether Hayek is a natural law advocate or belongs to the legal positivism is an intricate task to perform. In the third volume of Law, Legislation and Liberty, he criticized Hans Kelsen for separating law from morals. Nevertheless, Hayek’s whole works reject neither the possibility of founding any legal system on a speculative construction of reason nor on a revealed code of conduct. Legal realism is not an option either, since he regarded it as too simplistic. In fact, the particular issue to address concerning Hayek’s jurisprudence is not law, but his idea of nature.
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This is a very difficult question.
For Kelsen, legal positivism entails not just denial of natural law, but also the rejection that the normativity of the law could be explained in naturalistic terms (i.e., law as fact). This, of course, leaves no room for an evolutionary account of the law, in a continuum with morality (which seems to be a necessary corollary of Hayek's social theory). In this sense, Hayek's approach is actually closer to that of legal realism than to legal positivism, though certainly not to naif versions of legal positivism, such as that which is oft attributed to OW Holmes (and that is believed to have been debunked by Hart's criticism of "rule skepticism").
I embrace a pragmatic version of legal realism which I think is perfectly compatible with Hayek's social philosophy.
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