Friedrich Hayek devoted the later part of his career to investigating the legal rules required for the existence of a free society. The subject of this paper is Hayek’s treatment of legal positivism, which he thought was the most important intellectual movement responsible for the decline of liberal institutions in Europe in the early twentieth century. As shown in the paper, Hayek’s critique consists of two separate arguments: that legal positivism destroys the rule of law and that it amounts to constructivism. The first claim rests on the assumption that “true” laws comply with the rule of law principle, although the meaning of the adjective true is ambiguous. The second claim holds only for a particular variant of legal positivism. In addition to discussing these issues, the paper provides an assessment of Hayek’s own evolutionary theory of law, which was intended as an alternative to both legal positivism and natural law theory.

弗里德里希·哈耶克（Friedrich Hayek）在职业生涯的后半段致力于研究建立自由社会所需的法律规则。本文的主题是哈耶克对法律实证主义的处理，他认为这是导致二十世纪初欧洲自由主义制度衰落的最重要的知识运动。如该论文所示，哈耶克的批评包括两个独立的论点：法律实证主义破坏了法治，而它等同于建构主义。第一个主张基于“真实”法律符合法治原则的假设，尽管形容词“真实”的含义不明确。第二项主张仅适用于法律实证主义的特定变体。除了讨论这些问题之外，本文还对哈耶克自己的法律演化理论进行了评估，