Positivism And The Origin Of Property Rights

POSITIVISM AND THE ORIGIN OF PROPERTY RIGHTS INTODUCTION Positivism Positivism is the philosophy of science that information derived from logical and mathematical treatments and reports of sensory experience is the exclusive source of all authoritative knowledge, and that there is valid knowledge only in this derived knowledge.1 Positivism refers to a system of philosophy based on things that can be seen or proved rather than ideas. The basic premise of positivism lies in the derivation of “positum”, meaning that the law is something posited or laid down. The positivist law school thus argues that true law is law enacted by a sovereign and backed by sanctions.2 Positivism refers to a system of philosophy that postulates that our knowledge of matter is derived only from what we have experience of.3 The term positivism is also used in jurisprudence to denote legal positivism i.e. positivist analysis of the law or an examination of the law as it is; whose development was influenced by philosophical or analytical positivism.4 Classical positivist philosophers deny an a priori source of rights and assume that all authority stems from what the state and officials have prescribed. This approach rejects any attempt to discern and articulate an idea of law transcending the empirical realities of existing legal systems. 5 There are discernable elements from the teachings of the positivists. These are: law is a social fact; the idea of law being a command emanating from a sovereign power; the idea that law must embody a medium of sanctions; the separation of law from morals and the society must be in habitual obedience of the law.6 By divorcing a legal system from the ethical and moral foundations of society, positive law encourages the belief that the law must be obeyed, no matter how immoral it may be, or however it disregards the world of the individual. The anti-Semitic edicts of the Nazis, although abhorrent to moral law, were obeyed as positive law. The same is true of the immoral apartheid practices that prevailed in South Africa for many years. The fact that positivist philosophy has been used to justify obedience to iniquitous laws has been a central focus for much of the modern criticism of that doctrine. Critics of positivism maintain 1

Wikipedia atom feed, last modified on 25 June, at 16:11 Key issues in jurisprudence, Omony John Paul pg 32 3 Key issues in jurisprudence, an in-depth discourse on jurisprudence problems, Omony.J.Paul 4 Positivism defined by Omony.J.Paul, key issues in jurisprudence, page 48 5 Jerome’s philosophical foundations of law 6 Key issues in jurisprudence, Omony John Paul pg 32 2

that unjust laws not only lack a capacity to demand fidelity, but also do not deserve the name of law because they lack internal morality.7 The legal positivist concern is with the “is” of the law and not the “ought” of the law. They argue that if normative rules reflect no more than subjective opinions, they cannot be deduced from physical reality. Therefore the legal positivists‟ approach to law excludes value judgments and moral considerations. 8 A theoretical physicist said, “positivists have a simple solution: the world must be divided into that which we can say clearly and the rest, which we had better pass over in science”.9 Auguste Comte stated; “The most important thing to determine was the natural order in which the sciences stand- not how they can be made to stand, but how they must stand, irrespective of the wishes of anyone…” Positivity is the degree to which the phenomena can be exactly determined.10 Positivist approach is aimed at answering the questions; what is law? What are the essential functions of law? by studying the structure of laws within a legal system to reveal their real foundation.11

Property rights Property rights are theoretical constructs in economics for determining how a resource is used and owned. Property rights can be viewed as an attribute of an economic good.12 According to Neil Meyer, “what is often referred to as property is really the access right to a stream of benefits from a given set of resources”.13 Property rights are a bundle of rights, privileges, powers and immunities that an individual or collection of individuals has as against other people with respect to owned resources. It denotes the rights to acquire,

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Jerome’s philosophical foundations of law Legal positivism analysis. Key issues in jurisprudence, Omony.J.Paul, page 48 9 Saying of German theoretical physicist, Werner Heinsberg of quantum mechanics 10 Auguste Comte’s view of positivism. 11 Key issues in jurisprudence, an in-depth discourse on jurisprudence problems, Omony.J.Paul. page 48 12 Wikipedia atom feed, last modified on 17 June 2014, at 10:16 13 Quote by Neil Meyer, professor of agricultural economics and rural sociology at the University of Idaho 8

use, abuse, dispose of and exclude other people from owned resources. 14 This can be referred to as property in REM. Property rights can be seen in A.M Honores‟s eleven standard incidents of property ownership. Some examples include: the right to claim, the right to use, the right to manage, the right to income, the right to security and so on.15 A property right is the exclusive authority to determine how a resource is used, whether that resource is owned by the government or by an individual. Society approves the uses selected by the holder of the property right with governmental administered force and with social ostracism. Private property rights have two other attributes in addition to determining the use of a resource. One is the exclusive right to the services of the resource and the other is the right to delegate, rent, or sell any portion of the rights by exchange or gift at whatever reasonable price the owner determines.16

THEORISTS AND THEIR VIEW ON POSITIVISM John Austin “The existence of law is one thing, its merit or demerit is another”.17 Austin‟s analytic approach to law offered an account of the concept of law, that is, what law is. This was termed “Legal Positivism” because it set out to describe “what law is” in terms of what humans posited it was, thus the link between “positive law” and “Legal Positivism.”18 Austin‟s particular theory of law is often called the “command theory of law” because the concept of command lies at its core: law is the command of the sovereign, backed by a threat of sanction in the event of non-compliance.19 The major elements of Austin‟s positivism can be summarized as follows: the source of law is in social fact; law being an express or tacit command emanating from a sovereign power; law embodies a medium

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Collected from Dr. Nicholas Orago lecture notes A.M Honore’s eleven standard incidents of ownership 16 Armen A. Alchian, professor of economics at the University of California, los Angeles, property rights, second edition. 17 John Austin’s quote, key issues in jurisprudence, page 48 18 Philosophy of law and legal theory, Patterson 1999, page 245 19 Wikipedia atom feed 15

of sanctions; law should be separate from morals and ethical concerns and the habitual obedience to the law.20 Austin called for the separation of positive law which he took to be the „command of or directive by a superior authority being the sovereign, laid down or posited from any moral or ethical concerns. This has often been referred to as the separability thesis.21 Hans Kelsen Kelsen propounded the normative positivist theory. His aim was to develop a legal theory that is basically positivist in conception but which would be sufficiently flexible conceptually to take into account the normativity of the law.22 Kelsen‟s theory of law is called, „the pure theory of law‟. It is based on the idea of a grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based i.e. forming a hierarchy of laws.23 Ockham Ockham made a number of points on property rights. He employed that: a right is either a right of heaven or a right of the law courts. These are, respectively, natural and positive rights. A legal right is one that ought to be upheld by a court. Furthermore, use has various senses, one is the legal right that the civil law calls use, another is the act of using and the last is „use of fact‟ i.e. a moral right to use something without necessarily having any legal right to use it. Moreover, things „consumable by use‟ such as food drink, clothing, money, use of which consumes them, either in a single act or more gradually.24

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Key issues in jurisprudence, an in-depth discourse on jurisprudence problems, Omony.J.Paul page 49 An in-depth discourse on jurisprudence problems, Omony.J.Paul, page 50. The separability thesis was premised on the view that the science of legislation must be separate from the science of morality 22 Key issues in jurisprudence, page 49. Kelsen had the same concept as HLA Hart 23 Wikipedia atom feed 24 Macquaire university, Sydney Faculty of Arts 21

NATURAL LAW THEORISTS IN RELATION TO PROPERTY RIGHTS

St. Thomas Aquinas Aquinas gives a hierarchy of laws with human law subordinate to natural, divine and eternal law. Natural laws are founded on reason, which creates a duty of obedience if they are just and reasonable. He argued that natural law cannot be limited by time and space. His classification of law and his ideas reflected the feudal social hierarchy, theology of the church.25 Pufendorf According to pufendorf, occupation establishes property not of itself or by nature, but by virtue of an agreement that things ooccupied are to be the property of the occupier. Property was extended gradually to different things and different sorts of things as the population increased and the conveiniences of life developed26

POITIVISM AND THE ORIGIN OF PROPERTY RIGHTS A literal version of a legal positivist theory of property rights would state that a person‟s rights to property are determined by what the law says about those rights. But this literal version is somewhat misleading, because legal positivists generally look to legislative law, not customary common law as the embodiment of law. So, in practice, a legal positivist theory of property rights states that those rights are determined by what current legislative law says about the content and nature of rights. Among other things, this implies that rights are political. Citizens do not possess rights inherently, but rather receive them from the state. Legal scholars in the legal positivist tradition have struggled to fit the normative round peg into the positivist square hole. One response to this logical conundrum has been to claim that rights, including property rights, are political, meaning that they originate with the creation of the state. Holmes and Sunstein (1999) have made this argument. They argue that legally enforceable rights cannot exist without

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Key issues in jurisprudence, omony.J.Paul, page 25-29 Macquaire University, Sydney Faculty of Arts

the state; therefore, citizens owe obedience to the state, including compliance with taxation, in exchange for the state providing these legally enforceable rights.27 In economics, Donald Wittman has offered a reconciliation of the “is-ought” divide by appealing to a metaphor. If, according to his view, competition in the political process is in large measure similar to competition in the market process, then democracies generate efficient laws. So, the reason that the law, at least legislative law, is the way it is, is because that is the way that it should be. According to legal positivism, rights are expressions of power.28 In Bromley and Cochrane‟s words, “Rights can only exist when a social mechanism that gives duties and then binds individuals to those duties exists.” Bromley defines a right as “the capacity to call upon the collective to stand behind one’s claim to a benefit stream.” He goes on to argue that rights only exist when the state stands ready to actively protect them.29 Rights are transitory and variable under legal positivism. The form or content of a person‟s rights evolves over time as the outcome of the struggle among conflicting interests in the political process or as the sovereign issues new edicts. Legal positivism holds the view that a person‟s rights are determined by what the legislature says they are. In an immediate and practical sense, it is hard to argue with this position. The legislature, backed by the power to enforce legislation and regulation, has a profound influence on the ways in which citizens can act. If the legislature says that owners of apartment buildings cannot charge rents above some regulated level, and if that edict is enforced, then landlords and tenants will not be able to enjoy the right to negotiate rents.30 Viewing property rights as a bundle of sticks gives the effective impression that the contents of the bundle in any given context are arbitrary. Sticks can be taken out of the bundle, or, at least in principle, added to the bundle, although that has not generally been the case, without changing the essential nature of property.31

APPLICATION OF POSITIVISM IN THE CONSTITUTION Article 40 Article 61 Article 66 Article 70

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Archive property rights-5-economic solitudes fox (2). pdf Tawney 1948 page 50-51. Archive property rights-5-economic solitudes fox (2). pdf 29 1994, page 7, Archive property rights-5-economic solitudes fox (2).pdf 30 Archive property rights-5-economic solitudes fox (2).pdf 31 Archive property rights-5-economic solitudes fox (2).pdf 28