How can a law be illegitimate? Isn’t this an oxymoronic question? It is a question that brings us to the concept that there can be a difference between what is legal and what is right. This is the debate between those who believe in Legal Positivism and those who believe in Natural Rights.
Legal positivists “believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.” In other words whatever the government says is legal is right.
While those who believe in Natural Law believe “all written laws must be informed by, or made to comport with, universal principles of morality, religion, and justice, such that a law that is not fair and just may not rightly be called law.” Any law which is contrary to Natural Law is not a legitimate law. For example a law that says it is legal to murder others would be seen by all to be illegitimate in a moral sense even though it would be technically legal.
That this is the concept under which the United States was first formulated is self-evident when we read that incomparable document which was issued by the Continental Congress as a justification for its war and its purpose: the Declaration of Independence. In its opening paragraph, the preamble which all school children once memorized, this document explains itself thusly: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the ea
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- Description: How can a law be illegitimate? Isn’t this an oxymoronic question? It is a question that brings us to the concept that there can be a difference between what is legal and what is right. This is the debate between those who believe in Legal Positivism and those who believe in Natural Rights. Legal positivists