Speed limits, immigration, and the duty to obey the law

April 17, 2014

In a response to my post arguing that illegal immigrants are often justified in morally violating, law professor Michael Rappaport questions my use of the example of speed limit laws. I pointed out that most people believe that they are morally justified in violating the speed limit, so long as they do not significantly endanger other drivers or pedestrians. In such cases, they believe that the inconvenience of following the law outweighs any duty we might have to obey. Michael, however, argues that the duty to obey the speed limit is a special case because the government usually doesn’t enforce speed limits against moderate violations:

Speed limits, however, are unusual laws. The government, including police officers, assume that people will violate these laws by a certain amount. It is often said that on a highway, one is “allowed” to travel 10 miles over a 55 mph limit and the police will not ticket you. While 55 is technically the law and you can be ticketed for that amount, one generally is not.

In this situation, people do not really regard the 55 limit to be the law in the relevant sense. People are not generally conforming their behavior to that amount. And the government is not really expecting them to do so. Therefore, this is a not a good counterexample to the claim that people should conform their behavior to the law.

I. Why the Speed Limit Laws are not Such a Special Case.

I would first point out that laws that are rarely enforced and that the government expects people to violate by “a certain amount” are far from unusual. They are in fact the great majority of the laws on the books, especially federal laws. The average American commits three federal felonies per day, and only a tiny fraction of these violations are ever prosecuted or punished. If we have little or no obligation to obey laws that the government rarely enforces and doesn’t expect to enforce, that’s an important conclusion with very broad implications.

In addition, I think that Michael has the causal relationship here backwards, at least in part. He assumes that we believe there is no moral duty to avoid moderate violations of the speed limit because such violations are rarely punished. In reality, they are rarely punished because most people believe they are not morally wrong. Consider what happens when the government begins to enforce speed limit laws more aggressively, for example by setting up speed traps and catching unsuspecting motorists for violations that would previously have been allowed to slide. Do people say that now that the police are enforcing the speed limit laws to the hilt, we have a stronger obligation to obey them? Obviously not, the usual public reaction to such stepped-up enforcement is anger. People become upset because the government is enforcing laws in a way they regard as onerous and unfair. That helps explain why the government usually doesn’t enforce speed limit laws aggressively, even though they would sure like to have the extra tax revenue. Elected officials fear potential political backlash for doing so.

This point also applies to Michael’s comments on why people believe we have no moral duty to obey many other “unimportant” laws and regulations:

Less strong, but similar arguments apply to other technical violations of unimportant laws. Parking in violation of parking regulations is also a violation of the law, but such laws are widely violated and there is an understanding that the ticket for the violation is in a sense a price that one pays for violating them. The violation, after all, does not harm anyone, but just involves an allocation of scare space that one pays for with the ticket.

Notice that the key factor here is not whether the government expects people to routinely break the law, but the fact that obedience is onerous, while violation “does not harm anyone” (though it could be argued that parking violations sometimes do harm others, because they take away a potentially valuable space that could have been used by a vehicle parked legally). As I explained in my original post, merely crossing a border and taking a job from a willing employer or renting a home from a willing landlord also “does not harm anyone.” Moreover, the burden that immigration restrictions impose on potential migrants vastly outweigh the burden that speeding laws impose on natives.

II. The Potential Relevance of a General Obligation to Obey the Law in order to Maintain a “Generally Desirable” Legal System.

Michael also outlines a more general argument for obeying the law, though he doesn’t claim that it necessarily leads to the conclusion that illegal immigrants must obey immigration restrictions:

The question of whether someone has a moral obligation to follow the law is an important one. Under indirect consequentialist approach that I advocate, I believe that there is a strong argument for following the law under a reasonably desirable legal system.

The laws under such a legal system operate to the benefit – ex ante at least and in most cases ex post – of the great majority of people. If people follow the law, then the government can reduce enforcement costs and people can place trust in the system. These are significant goods that justify at least a relatively weighty argument for following the law. However, exactly how weighty the consideration is, what would outweigh it, and how it applies to illegal immigration, I am not sure.

One can argue that people have a duty to obey the law on such grounds because they benefit from the reciprocal obedience of others, so long as the legal system is “generally desirable.” Whatever the general merit of this argument, it does not have much force in the case of would-be migrants faced with the question of whether to obey restrictive immigration laws. If they obey the immigration laws and allow themselves to be deported (or never enter the US in the first place), they will not derive any advantage from the reciprocal obedience of others, because they will be kept out of the United States entirely, and therefore cannot benefit from its “reasonably desirable” legal system.

Moreover, I am not convinced that Michael’s argument applies to all or most laws, even those enacted in a generally desirable legal system. In such a system, some laws are essential to maintaining its generally desirable nature, others have little impact either way, and still others are actively pernicious. To the extent that people have at least a reasonable capacity to distinguish between the three types, they can actually improve the system and make it more beneficial by peacefully disobeying harmful laws that make the system worse.

The situation is different in cases where the political majority or the government have superior knowledge about which laws are beneficial and which ones harmful. In such a scenario, individuals should defer to the government on such issues, at least in most cases. In the real world, however, both voters and legislators are often profoundly ignorant about law and public policy, and their likely effects. That sad reality at the very least diminishes the degree of epistemic deference we owe them.

That said, I do not rule out the possibility that we have some presumptive obligation to obey the law. But any presumption, even a strong one, can sometimes be overridden by other considerations. In my earlier post, I explained why such an override is justified in the case of many violations of immigration laws. I also explain why that conclusion holds even if the presumption in favor of obedience is a strong one (so long as it is not absolute).

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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