Sunday, December 12, 2010

Was Adam Smith a Legal Positivist?

From his Lectures in Jurisprudence (R.L. Meek, D.D. Raphael and P.G. Stein, eds, Oxford 1978):
[T]he age of shepherds is where government first commences. Property makes it absolutely necessary. When once it has been agreed that a cow or a sheep shall belong to a certain person not only when actually in his possession but where ever it may have strayed, it is absolutely necessary that the hand of government should be continually held up and the community assert their power to preserve the property of the individualls.
This seems awfully close to Bentham's argument that legal rights cannot exist in the absence of government.

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