The Libertarian Critique of Legal Positivism
If, as Hans Kelsen argued, law and state are actually one and the same thing, then legal and political philosophy are not essentially separate disciplines. However, even if one departs from Kelsenian tenets, a close connection between these cannot be denied. Evaluation of legal positivism from different libertarian perspectives affords one more instance of this interplay between legal and political thought.
This article will specifically explore this libertarian “critique” of legal positivism, which is one of the most relevant achievements of libertarianism’s legal-philosophical forefront. It will predominantly focus on libertarian criticism of Kelsen’s “pure theory of law,” undoubtedly the most acclaimed and influential embodiment of legal positivism. Yet, libertarian legal theory has not always been unsympathetic towards the principles and corollaries of legal positivism, wherefore their points of convergence will also be reported.
