Bianca Cirimele.docx - Bianca Cirimele POSC 414 Dr. Jason...

Bianca Cirimele
POSC 414
Dr. Jason Whitehead
Spring 2012
1. What makes the law legitimate?
2. What is a legitimate source of law?
3. What binds people to obey the law?
4. Is there an essential connection between the law and morality?
5. Can the content of a law disqualify it from being considered a legitimate law, which must
be obeyed?
This debate has been taken up by two major groups of legal theorists: Natural Law theorists
and Legal Positivists.
Legitimate law
Natural Law theorists such as Plato, Aristotle, and St. Thomas Aquinas argue that a law is
only just and legitimate if it promotes the common good.
For Legal Positivists like John Austin, H.L.A Hart, and Thomas Hobbes, a law is legitimate
if it has been enacted through the proper channels by someone with the power to do so
regardless of the content of that law.
Legitimate laws must come from legitimate sources .
Natural Law theorists posit that the source of law is divine or can be discovered and formed
according to what is just and will promote the common good. Aquinas takes the stance that the
source of divine law is God. Human laws are derived from these divine laws and practical
reason. Aristotle and Plato agree that concepts of law and justice are derived from nature and
reason , which govern actions to move toward the higher good.
Aquinas makes the distinction that the person or persons who makes the law must be in care
of the community. This is similar to Hobbes in that he believes the duty of those who make
law is to care and protect the society that they govern. Hobbes finds a middle path on the topic
of the source of law. He contends that the individual subordinates himself to the sovereign
who can create and enforce laws according to a social contract with the people . 1
Legal Positivists argue that for the source of law to be legitimate, it must come from a source
of power. For Austin, the source of law must be the only person who the subjects are in the habit
of obeying. They must also be willing to back their sanctions and laws with credible force . The
source of law is the sovereign who produces laws through following primary and secondary
rules.