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Law, Legislation, and the Trump Administration’s Cruelty

Regular readers of Cafe Hayek are aware of the importance that I attach to the distinction between legislation and law. “Legislation” is the name for the commands issued by the state. “Law” is the name for the rules of behavior that evolve undesigned and unplanned in society – rules that better enable us gregarious human beings to live peacefully along side each other and that are part of the expectations that we carry around in our minds and hearts about the behavior of others as well as of ourselves.

Regular readers of Cafe Hayek are aware also that I believe that legislation deserves far less deference than does law. These two kinds of constraints on human behavior differ from each other in many ways, including this way: law reflects the time-tested consensus of the relevant community while legislation, even in democratic societies, often reflects an unsavory mix of raw interest-group politics and popular, faddish fears and superstitions.

With this post I don’t wish to explore or explain further the crucial distinction between law and legislation. (Interested readers can find more here.) Instead I want to suggest that this distinction is helpful for understanding why those of us who are deeply appalled at the latest cruelty of U.S. immigration policy are correct to insist that this policy is so outrageously immoral that it should be disobeyed by all who are in positions to disobey it.

The policy that I write of is the Trump administration’s “zero tolerance” policy toward immigrant border crossings, including the forced separation of children from parents.

“It’s the law!” protests those who object to those of us who wish to see this so-called ‘law’ universally violated. One correspondent wrote to me after I favorably linked to this Kathleen Parker column to ask me if I believed it to be wrong to separate children from parents when the parents commit crimes such as murder and armed robbery. I wrote back that murderers and robbers – even shoplifters – initiate violence against others and others’ property. Therefore, as tragic as it is, any separations of children from their law-breaking parents in such circumstances do not strike me as foundationally ethically wrong. (I do not wish here to discuss proposals and possibilities for fundamental reform of the criminal-justice system. I here take the U.S. criminal-justice system largely as it is.)

The people currently victimized by the Trump administration are guilty of nothing other than what the ancestors of all Americans were guilty of: wanting to live in America. Acting to make that wish come true is itself not a crime; it is not, as lawyers say, malum in se. Acting on that wish is a crime only because the state declares it to be so; it is, as lawyers say, malum prohibitum. Ethically, violating legislation is – or ought to be – presumptively far less objectionable than violating law. And also: violating law in order to enforce legislation is itself presumptively unethical. I submit that the law is violated by the Trump administration and those U.S. government officials who follow the Trump administration’s commands to separate children from their peaceful parents.

Most people, acting on their own, would not use force to separate children from parents who are simply trying to move into a new political jurisdiction. Indeed, even those individual Americans who today would on their own find no problem enforcing, with their own hands, such separations would likely not be willing to do so if there was no legislation that declared what the parents are doing to be criminal.

Decent people do not inflict such heartache and trauma on others who are peacefully trying to move into a new political jurisdiction. Decent people refuse to countenance such actions. Decent people renounce such actions. And decent people do not hide behind “It’s the law!” to justify such cruelty when the so-called “law” is nothing more than legislation.


It is often claimed that legislation enacted by the state is necessary to prevent people from behaving barbarously towards each other. I have never believed there to be much truth in this claim. But whatever truth is in this claim, that truth should not overshadow this other truth: legislation enacted by the state often incites people to behave barbarously towards each other, if for no reason other than that those who blindly obey the legislation wrongly fancy themselves to be principled champions of the rule of law. To repeat, again: legislation is not law.