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Ruminating on Legislation and the Rule of Law

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Regular readers of Cafe Hayek know that I put great stock in the distinction between law and legislation [2]. The latter is not the former, and the former does not require the latter.

Nevertheless, even I recognize that as long as the state exists, its subjects cannot be given free rein to individually pick and choose which statutes to obey and which to ignore. Although legislation itself might not be law, part of the genuine law is the expectation that people will obey duly enacted legislation.

Yet all but the most hidebound ‘law’n’order’ type recognizes that not all legislation ought to be obeyed. No one today – and no decent American before the U.S. Civil War – regarded runaway slaves as lawbreakers who deserved punishment for violating existing legislation. Likewise, no decent person would wish to convict as criminals those courageous Americans who, contra existing legislation, helped slaves to escape. The same, of course, is true for residents of Nazi-occupied lands who helped Jews escape persecution: although criminals on paper, these people were heroes in reality.

Far less extreme examples are available. How many of you, if you were a traffic-court judge, would vote to convict a driver who is ticketed for driving 57 miles per hour along a stretch of highway with a posted speed limit of 55 MPH? How many of you, if you were on a jury, would vote to convict of a criminal misdemeanor two adults who had consensual sex with each other in Massachusetts [3]?

At some point, strict enforcement of the letter of legislation itself becomes the unleashing of lawlessness. This truth is recognized even by the great majority of us who understand the dangers of condoning the individual picking and choosing of which statutory rules one will follow.

The germane question, then, is where to draw the line? I’m pretty sure that any answer given to this question will itself be ambiguous. It will certainly be an answer whose details reasonable people will disagree over.

But here’s a different, although related, question: what responsibility has the state to legislate in ways that do not invite ‘legislation-breaking’? I ask this question because very often this ages-old problem is discussed as if the ethical responsibility to decide when it becomes ethical to violate legislation rests exclusively on those individuals who might do the violating.

Consider this extreme example: Suppose the state duly enacts legislation requiring every man, woman, and child to stand on his or her head every night, for at least 15 minutes before going to bed, and while on his or her head to recite passages from the Torah. Would you, as a citizen, obey this diktat? Would you think your neighbor Maggie or your Aunt Julia to be a scofflaw deserving punishment if she doesn’t obey this statute? And would you think that society risks being torn apart by widespread refusal to obey this statute? I’m quite sure not.

You might, though, quite reasonably point out that the enactment of such a statute does work as a kind of acid on the rule of law: by enacting legislation that very few people wish to obey, the state undermines the willingness of people to obey its commands even when those commands are reasonable and productive.

Now consider a case that is much less extreme: legislated quotas on immigrants to America. Unlike me, many people would insist that these quotas must be obeyed even if we all agree that the quotas are economically and even ethically harmful. The reason for this insistence is that violations of this legislation undermine the rule of law. That is, even someone who is an advocate of an open-borders immigration policy might nevertheless condemn someone who knowingly violates existing immigration restrictions. This condemnation will arise from concern that the violation, while admittedly of an unwise statute, undermines the rule of law.

And undermine the rule of law it very well might. But why blame those who violate the statute? Why not blame the undermining of the rule of law on those who¬†enact the statute? If the statute prohibits behaviors that are otherwise widely regarded as acceptable, or prescribes behaviors that are otherwise widely regarded as unacceptable, the statute will be violated with some frequency even by individual who justly think of themselves – and who are thought of by others – as decent and law-abiding. Even if it is unambiguously true that widespread violations of such legislated terms does contribute to the social harm that is a weakening of the rule of law, it’s not clear why blame for weakening the rule of law belongs exclusively – or even mainly – on the individuals who violate this legislation. Again, why not blame the politicians or bureaucrats who impose this legislation?

In my view, America’s legislated immigration-quota system proscribes actions that most Americans otherwise regard as acceptable (for example, hiring a non-American to mow your lawn) and prescribes actions that most Americans otherwise regard as unacceptable (for example, separating parents from children when, as families, these immigrants are guilty of nothing more than trying to enter the United States). Many decent people who believe that the immigration legislation is full of cruel or merely unwise provisions will nevertheless insist that the legislation must be enforced and obeyed until and unless it is repealed. They will make this insistence out of fear that the rule of law will otherwise be dangerously undermined.

Again, though, even if this fear about the rule of law is valid, at what point does responsibility to fix matters fall not on ordinary people going about their daily affairs peacefully but, instead, on state officials who enact legislation that invites its own widespread violation?

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