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
2
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
Jeromes philosophical foundations of law
6
Key issues in jurisprudence, Omony John Paul pg 32
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,

7
Jeromes philosophical foundations of law
8
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 Comtes 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
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 Honoress 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

Austins 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

Austins 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 Austins 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

14
Collected from Dr. Nicholas Orago lecture notes
15
A.M Honores 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 Austins quote, key issues in jurisprudence, page 48
18
Philosophy of law and legal theory, Patterson 1999, page 245
19
Wikipedia atom feed
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

Kelsens 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







20
Key issues in jurisprudence, an in-depth discourse on jurisprudence problems, Omony.J.Paul page 49
21
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
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
developed
26



POITIVISM AND THE ORIGIN OF PROPERTY RIGHTS
A literal version of a legal positivist theory of property rights would state that a persons 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

25
Key issues in jurisprudence, omony.J.Paul, page 25-29
26
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 Cochranes 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 ones 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 persons 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 persons 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

27
Archive property rights-5-economic solitudes fox (2). pdf
28
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