Is an unjust Law still law?
The very idea of a law being valid even when it is not valid is disturbing to many people. We tend to think law and morality should run side by side; that a good legal system will reflect what is right or fair. Hans Kelsen in his Pure Theory of Law held a contrary view. For Kelsen, law and morality were distinct ontological orders. The validity of a rule would depend on its place and reception within a legal system, not its justness or injustice. This position gives rise to the sharp question: is an unjust law still a law? Kelsen thought so.
Kelsen built his theory in response to a wide-spread tendency for legal scholars to start with law and merge law with politics, morality, or theology. He thought this blurred means serious confusion about what we mean by legal science. He wanted to provide a description of law using its own terms, free from outside tension. Law, he argued, must be studied as a system of norms. A rule is valid if it can ultimately be traced through the hierarchy of norms back to the constitution - and presupposed, back to the Grundnorm. Law is an autonomous order, having its own ground of validity. Justice, for all its importance in ethics or politics, did not fall within that ground of validity, however valuable or necessary justice might be .
For example, consider a decidedly discriminatory statute that was enacted through proper procedural channels. According to Kelsen’s theory, the moral character of the statute would not change its validity as a law. If that discriminatory statute was enacted following the proper schema in the constitution, it is, in fact, a law! Stating it differently suggests we are confusing two different questions: the legal validity of a rule and its justness in a moral sense. Kelsen came to the view that those queries should be kept separate. Law can be unjust but still be law.
This viewpoint had its pros and its cons. The pro was that it was straightforward. By separating law from morality, Kelsen made an examination of law as a social phenomenon possible. Its structure and its validity could come under study without the worry of intruding into moral issues. This pro aided in the development of a strong legal science. Similarly, it clarified how legal systems could exist and even function, and did not have to cease functioning, even when the laws on the books and in practice produced injustice. History gives many examples. For example, in countries under authoritarianism, laws would be produced, implemented, and obeyed despite the fact that they were unjust. Kelsen’s theory gives an explanation of this process in that he viewed validity as a condition of systemic order instead of moral worthiness.
The con could be, some critics could argue, is that the theory runs the risk of legitimizing injustice. If validity matters only in conformity to higher norms, that means that law is severed from justice. Laws about apartheid in South Africa, or laws about segregation in American society, would count most of the time as "valid" law if they went through the proper processes. For many, this just does not seem acceptable. If law is severed from justice law can serve as an empty shell. This raises the risk that Kelsen’s separation would prevent us from condemning injustice, which would contain failings of legality.
Kelsen's position to this critique of his theory of law would be to interrogate the uses of legal science and moral judgment as two different activities. Legal science explains what is considered valid law in a system of law. In contrast, moral or political argument tells one whether those laws are good or bad. To confuse the two is to confuse description with prescription. Kelsen thought it was entirely possible to condemn apartheid as an immoral system and still recognize that its rules were legally valid. The condemnation is an act of ethics, rather than jurisprudence.
One way to appreciate the stakes is to lay Kelsen’s approach alongside a natural law approach. Natural lawyers would argue that an unjust rule cannot be law because law, by definition, must be aimed at justice. The implied rationale would be that the apartheid statutes were not law because they did not meet the morality benchmark. Kelsen rejected that. He considered it as conceptually confused to treat morality as part of the definition of law. Rather, law is a system of norms. The validity of law is based on its location within that system of norms, rather than its substantive moral content.
The debate is meaningful because it has implications for how we respond to an unjust regime. If we take a natural law stance, we might say that unjust laws are no binding because they are not really law at all. If we take Kelsen’s view, unjust laws may be binding as law, but may be resisted on moral or political grounds. The two positions will produce a different kind of critique. When it comes to natural lawyers, the critique is internal: the wrongful statute is not law at all. For Kelsen, the critique is external: the wrongful statute is valid law but morally incorrect.
Examples to help clarify. When the Nazi government passed laws stripping Jewish citizens of their rights, a natural lawyer would simply deny they were even 'law.' Kelsen might characterize them as valid law in that legal order, but he would reject their moral legitimacy. The same might be said regarding segregation law requiring separate facilities for Black citizens and white citizens. Kelsen would call those laws valid law, because they were enacted in accordance with procedural rules, and would condemn their injustice, but would not deny the legality of the segregation law.
Though some thinkers think Kelsen's view is too rational or detached, his theory of legal validity has a certain rigor and honesty. It forces us to be honest about what legal systems do, and about the nature and function of various legal systems. Legal systems can and do enforce statutes and rules that may be unjust on their face. To ignore that or put that into question gets us into a blurred reality. Kelsen's separation allows a seeing of analysis and even clarity, despite the moral discomfort. It acknowledges the unseemly aspects of legality and justice being unwelcome bedfellows.
This perspective also helps explain why revolutions are so disruptive of norms. A new regime replaces an old constitution, and the entire pyramid or hierarchy of norms shifts. A new Grundnorm is presupposed, but what counts as valid law changes under that new regime, a fact that Kelsen importantly acknowledges. He would say no moral guarantee attaches to those norms or whether they might be just, but he would be clear about their validity and constitutionally determined legitimacy. A new legal order could be just or unjust, but the legitimacy of that order only has to do with its internal order. As for the question of justice, that is a question for ethics and politics.
For students and citizens, the lesson is sobering. Law cannot be taken for granted for justice. The law may assist in securing justice, but it could also assist in sustaining injustice. When legality is broken down legally the separation between legality and morality requires that we remain alert regarding both legality and morality. Law, or respect for legality does not close the discussion. We have to also question whether the rules are just. Kelsen would say that the study of law can deal with the first question as to whether the rules are valid, but there is no means under his model to question morality or justice or fairness.
So, is an unjust law law? For Kelsen the answer is yes. The validity of the rule only depends on its place in the pyramid of norms or the legal social order and has nothing to do with the moral quality of the remedy or whether the treatment served principles of moral equality. Kelsen's view makes legal science exact, but a little morally thin. Whether one is satisfied depends upon what one expects of law. Expectation of law to embody justice will invariably disappoint. Expectation of law to be an autonomous order of norms delivers. The separation of legality and morality continues to resonate or shape the dialogue even after Kelsen. It forces us to see that person would say law can exist alongside and apart from principles of justice and morality. Justice must be battled for either in the politics or ethics. Law does not guarantee justice where we acknowledge autonomy in legal social order and law.
