University of the Philippines

College of Law Atty. Eduardo V. J. Valdez, Ph.D.

Law 117 Legal Theory 1st semester 2023-2024

Long Quiz 2
Question:

Is an unjust law a valid law? Why or why not? Explain fully using concepts from the historical
school of jurisprudence and legal positivism. Cite your sources.

Introduction

When thinking about law or the legal systems that bind a society, more often than not, the
concept of justice comes to mind. After all, it is commonly believed that law is the means by
which society achieves justice. However, in an increasingly diverse and complex society, the
values of impartiality and equality, which ground justice, have taken on varying meanings and
degrees of relevance to people. Following this trend, there have been instances where laws do
not always prescribe to one's personal sense of justice, which begs the question of whether said
laws can still be deemed valid. And if so, how might one reconcile the existence of unjust laws
within the framework of legal systems? In modern legal theory, the historical and analytical
schools of jurisprudence provide perspectives that potentially resolve this incongruency.
Recognizing that laws should transcend mere reason and the supposed "common good", as
forwarded by natural law theory, these schools of jurisprudence suggest that unjust laws can be
deemed valid within their respective frameworks.

II

The Historical School of Jurisprudence

The historical school of jurisprudence places primacy on the human experience in the
creation of laws. Founded by German legal jurist, Friedrich Savigny, the historical school is

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grounded on the belief in Volksgeist or “the spirit of the people”,1 wherein law is shaped by
historical experiences and cultural context. It believes in the dynamism of law—that law is
subject to movement and development as every other popular tendency.2 According to Savigny,
law can be likened to language insofar as it grows and strengthens with the strength of the
people. He further posits that law has a twofold life, comprising a political and technical element.
The political element refers to the law as part of the aggregate or general existence of the
community. While law does not cease to imbibe this political element, the newfound
complexities of human reason eventually allowed law to flourish towards the technical
element—as a distinct branch of knowledge in the hands of the jurists.

According to Savigny, it would be impossible to completely dissolve the impact of

historical matters to the creation of law. As such, there is no choice but to learn, by the profound
study of jurisprudence, how to use this historical matter freely as an instrument (sermocinari
tamquam e vinculis).3 Upon achieving a historically contextualized legal system, he further
asserts the importance of three (3) requisites to maintain a good state of law: sufficient
authorities, a sufficient ministry of justice, and good forms of procedure. First, sufficient
authorities refers to government bodies who oversee and enforce laws within a jurisdiction.
Second, the ministry of justice refers to those who draft legislation, manage the court system, and
oversee government agencies charged with enforcement (sufficient authorities). Finally, a good
state of law requires good forms of procedure, which refers to the process of legal action and
appeals, as well as the manner evidence is presented during proceedings among others.

III
The Analytical School of Jurisprudence

In contrast, the analytical school of jurisprudence attempts a value-free analysis of legal

systems and the law. In his groundbreaking work, the Province of Jurisprudence, John Austin
introduces the positivist theory of law whereby the legal system depends on the presence of
structured governance, not on the extent to which it satisfies ideals of justice, democracy, or the
1
Britannica, The Editors of Encyclopaedia. "Friedrich Karl von Savigny". Encyclopedia Britannica, 17
Feb. 2024, https://www.britannica.com/biography/Friedrich-Karl-von-Savigny.
2
Von Savigny, Friedrich Karl. Of The Vocation of Our Age for Legislation and Jurisprudence. 1999,
ci.nii.ac.jp/ncid/BA07115026.
3
id.

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rule of law.4 To Austin, the laws in a particular society are a subset of the sovereign’s commands;
that is to say, laws are general orders that apply to classes of actions and people and that are
backed up by threat of force or “sanction”.5 This definition can be further broken into three (3)
elements: “Sovereign”, “Command”, and “Sanction”.

First, law presupposes a determinate source; a sovereign person or body of persons from
which commands flow from. As the ultimate political authority within a nation, the sovereign
possesses a character of political superiority, meaning that it cannot be subordinated by any
foreign sovereigns and it should have the power to command those who it exercises power over.
Second, the element of command refers to directives issued by the sovereign with the purpose of
signifying what the sovereign wishes one shall do and the evils that should be disregarded.6 As a
means to prescribe conduct, commands are characterized by their imperative nature, meaning
they are expressed as orders that must be followed in pursuit of legal rights. Third, and arguably
most crucial to the success of legal positivism, is the concept of sanctions. Sanction refers to the
consequences or penalties that are attached to the commands issued by the sovereign. The
consistent, steady, and uniform way these consequences are implemented oblige parties to act or
forbear agreeably to the sovereigns’ injunctions or prohibitions, providing law with its coercive
force and distinguishing it from mere advice or recommendations. 7

IV
Unjust Laws against the Historical and Analytical Schools of Jurisprudence

Drawing from a preliminary understanding of the respective schools of jurisprudence, it

is clear that the concept of justice is not the sole determinant of legal validity.

The Historical School of Jurisprudence and Unjust Laws

From a historical perspective, the validity of a law is often assessed based on its historical
development and acceptance within a society, rather than its immediate alignment with justice or
contemporary ethical standards. This viewpoint emphasizes that laws do not arise in isolation but
4
Hill, Roscoe E. “Legal Validity and Legal Obligation.” The Yale Law Journal, vol. 80, no. 1, 1970, pp.
47–75. JSTOR, https://doi.org/10.2307/795096. Accessed 15 Mar. 2024.
5
Austin, John. “The Province of Jurisprudence Determined.” The American Law Register, vol. 9, no. 8,
June 1861, p. 511. https://doi.org/10.2307/3302746.
6
id.
7
Legal Positivism (Stanford Encyclopedia of Philosophy). 17 Dec. 2019,
plato.stanford.edu/entries/legal-positivism/#SepaThes.

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are deeply influenced by the historical context of the legal system and the societal values
prevailing at the time of their creation. Consequently, even if a law is deemed unjust by current
moral or ethical principles, it may still be considered legally valid if it has evolved from this
historical development and is recognized and accepted by the society it governs.

This concept is exemplified by the notion of the "twofold life of law",8 which recognizes
the political element of lawmaking as being responsive to popular sentiments. Evidently, the
political element pays heed to popular tendency. In doing so, it does not make any mention of
ascribing to a specific sense of morality or concept of justice except going towards norms which
the majority cling to. Therefore, if a majority of society adheres to a set of rules that may not
align with principles of justice, the codification and transformation of these norms to learned
law—the actualization of the technical element—would suggest that even unjust laws can be
legally valid and can hold the obligatory force of law as society knows it.

An example of this phenomenon are the Jim Crow Laws, which enforced racial
segregation in public facilities across the United States from the late 19th century to the mid-20th
century.9 During its promulgation, these laws were widely accepted, rooting itself in the
supposed inferior status of slaves prior to the Civil War.10 In fact, these laws were codified on
local and state levels and most famously with the “separate but equal” decision of the U.S.
Supreme Court in Plessy v. Ferguson (1896). Despite the contemporary recognition of this era as
extremely troubling because of the brutal and systemic injustices against African Americans, the
historical school of jurisprudence would hold that such laws are valid—at least during its
implementation—because it was undeniably the product of the social consciousness during its
time.11 The political element of being the result of the aggregate existence of a community is
evident because during that period in American history, segregation was deemed normal. And
eventually, the integration of this norm into learned law, allowed for its integration and legal
validity with respect to the American legal system.

8
supra, at note 1.
9
Urofsky, Melvin I.. "Jim Crow law". Encyclopedia Britannica, 29 Feb. 2024,
https://www.britannica.com/event/Jim-Crow-law. Accessed 16 March 2024.
10
id.
11
Postema, Gerald J. "Law’s Ethos: Reflections on a Public Practice of Illegality." Boston University Law
Review 90 (1847).

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Legal Positivism and Unjust Laws

The legal positivism perspective would also agree with the possibility of unjust laws
being valid laws. Austin argues that the validity of a law is determined by its source (i.e.,
whether it is issued by a sovereign authority) and not by its moral content. As long as a law is
properly enacted by a sovereign and backed by a threat of sanction, it is considered legally valid,
even if it is perceived as unjust or immoral.

The Separability thesis is particularly relevant in resolving the apparent incongruence

with legal validity and injustice. Although it does not explicitly allow unjust laws, it calls for the
separation of law and morals. In his famous essay, “Positivism and the Separation of Law and
Morals”, Hart forwards the simple contention that it is no sense a necessary truth that laws
reproduce or satisfy certain demands of morality, though in fact they have often done so.12
Although a connection can be made between law and morality (and by analogy, justice), legal
positivists reject any dependence on the moral merits of law.

Furthermore, the primary rules and secondary rules further strengthen the independence
of justice from law. At its core, primary rules of obligation require human beings "to do or
abstain from certain actions, whether they wish to or not".13 Complementing this are the
secondary rules, which establish the legislative and judicial procedures by which primary rules
are implemented. Among the secondary rules identified by Hart, the rule of recognition, which
points to the shared expectations of what law is, emphasizes that law gains its obligatory force
not because the people believe it is fair or just. Instead, individuals are expected to comply with
the law because a sovereign body has mandated its adherence. That is to say, positivists believe
that laws are "valid" even if they are outrageously unjust or immoral.14

Applying legal positivism to the aforementioned example of the Jim Crow laws, the
content of the law (segregation) is not the primary concern; rather, it is the source of the law and
the mechanisms by which it is enforced. The implementation of segregation across public
facilities would be legally valid insofar as it is a legal command coming directly from the
determinate source of state laws.15 Although there were certainly people who resisted its
12
supra, at note 8.
13
supra, at note 3.
14
id.
Gallego, Javier. “Legal Positivism’s Internal Morality.” Oxford Journal of Legal Studies, vol. 43, no. 2,
15

Dec. 2022, pp. 456–74. https://doi.org/10.1093/ojls/gqac030.

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implementation, the laws imposed severe sanctions such as criminal fines or imprisonment for
those who refused to enforce these statutes.16 This does not imply that these laws were morally
justified or ethically sound, but rather that members of society had the legal obligation to follow,
regardless of their perceptions on what the most just course of action would have been.17

VI

Conclusion

In conclusion, the Historical School of Jurisprudence, founded by Friedrich Savigny, and

the Analytical School, epitomized by John Austin’s legal positivism, present distinct approaches
to understanding the nature of law and its relationship to morality and justice. The Historical
School emphasizes the importance of historical development and societal acceptance in
determining the validity of laws, while the Analytical School focuses on the formal structures of
law and the authority of the sovereign as the basis for legal validity. While attempts have been
made to reconcile the apparent disconnect between unjust yet valid laws, this should certainly
not become a normative practice. Notwithstanding the fact that placing value on history and
formalism can allow for the validity of unjust laws, the respective schools of jurisprudence can
still be balanced with the common good. As such, legal theorists, practitioners, and the general
society, must strive to ensure that laws are not only valid, but also just and equitable—that
society is obligated to ascribe to laws they can agree with on a moral level.

16
Onion, Amanda. “Jim Crow Laws: Definition, Facts and Timeline | HISTORY.” HISTORY, 22 Jan.
2024, www.history.com/topics/early-20th-century-us/jim-crow-laws.
17
Gallego, Javier. “Legal Positivism’s Internal Morality.” Oxford Journal of Legal Studies, vol. 43, no. 2,
Dec. 2022, pp. 456–74. https://doi.org/10.1093/ojls/gqac030.

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Name: Julia Isabel V. Illiscupides Student Number: 2023-21486