More on speed limits and duties to obey the law

April 20

Law professor Michael Rappaport has written a rejoinder to my post responding to his critique of my claim that the widespread belief that there is nothing morally wrong with moderate violations of speeding laws is an indication that most Americans do not hold there is a strong presumption in favor of obeying all laws.

Michael continues to argue that speeding laws are a special case:

Ilya characterizes my argument as claiming that the “duty to obey the speed limit is a special case because the government usually doesn’t enforce speed limits against moderate violations.” But that only captures part of my point. Let me elaborate.

In San Diego, where I live, the highway speed limit is generally 65 mph. The police generally do not ticket unless one is traveling faster than 75, thereby providing motorists with a 10 mph buffer. It is not merely that the police do not ticket for speeds lower than 75. I believe that the government does not believe sub 75 speeds are wrong nor do most people believe that such speeds are wrong. The reason that the government sets the speed limit at 65 rather than 75 is their belief that, if the speed limit were set at 75, people would drive up to 85 mph. Thus, they set it at 65, expecting and allowing people to drive up to 75.

In my view, the fact that the law says that the limit is 65 MPH, and the police will at least occasionally ticket motorists who drive only 5 MPH faster than the law allows, suggests that slightly exceeding the limit is already a “real” violation of the law, albeit one that is rarely enforced, and that the government usually does not want to enforce. Rarity of enforcement, of course, is a characteristic of many laws, as I pointed out in my last post in this exchange. I agree that most people do not believe that speeds between 65 and 75 MPH are “wrong.” But that supports my point. Precisely because people believe driving at that speed isn’t wrong, they also don’t believe it is morally wrong to violate the law by doing so.

Michael proposes the following interesting thought experiment:

Imagine an alternative system where there were monitors along the highways that electronically gave out tickets for exceeding the speed limit. In that world, people would know that they would have to drive below the speed limit to ensure that they did not occasionally exceed it and receive a ticket. In that world, the speed limit might be set at 77 and motorists would drive at between 72 and 75 to avoid getting tickets. In that world, violations of the 77 mph speed limit would be “real” violations of the law. One could then test the question whether people believed exceeding the 77 mph speed limit was morally wrong.

We don’t have to just imagine this “alternative system.” Such a system actually exists in many jurisdictions that have red light and speeding cameras which give out automatic tickets for traffic violations that police would usually have ignored in the past. They have been greeted with widespread outrage, because people perceive them as punishing petty violations of traffic laws that are not morally wrong, because they do not actually threaten public safety. To be sure, these cameras don’t necessarily punish even the slightest deviations from the speed limit. But they do ticket modest infractions that police would generally ignore.

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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Ilya Somin · April 20