Breaking the Law by Moderately Speeding

Ilya Somin has an interesting post arguing that the fact that illegal immigrants have broken the law should not lead one to conclude that they have engaged in an immoral act. His basic argument is to question the claim that people have a strong obligation to follow the law, based on the argument that most people appear to believe that breaking some laws is acceptable.

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. 

Here I do not want to disagree with Ilya’s view generally, but instead to question the force of one of his examples – speed limits – an example often used to suggest that breaking the law is no big deal. Ilya writes:

Many people implicitly assume that there is only a relatively weak moral presumption in favor of obeying the law. If obeying a law is inconvenient and violating it is unlikely to harm anyone, they believe that violation is morally justified. That explains why most people believe it is morally permissible to violate the speed limit laws, so long as you don’t drive so fast as to seriously endanger other drivers and pedestrians. Strict compliance with the speed limit would be annoying and inconvenient, and make it harder for us to get to our appointments on time.

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.

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.

If one is going to test the claim whether people have an obligation to follow the law, I think other examples are needed. People have varying views about these other examples. Some people believe it is fine to cheat on your taxes, others believe it is ok to violate stupid or undesirable laws. Of course, that people believe it does not mean it is true, in the sense of being justified under a consequentialist approach. Still, I think that these other matters need to be addressed rather than relying on speed limits or parking violations.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. R Richard Schweitzer says

    To use the vulgate, and though repetitive:

    There is this one thing; the “law” being talked about is *not* actually ** Law **, but rather, the Rules of Policy (legislation, ordinances and their excrescences.

    Rules of Policy are created to describe, define and delineate a **desired** social order and the relationships necessary to its existence.

    **Law** defines and describes, but does not necessarily delineate, the actual existing social order and the relationships within it, as they have come to be, with changes, over periods of time and experience.

    If particular conduct violates the “norms” of a social order or of the “norms” of the relationships within it, an issue of **Law** may be involved.

    If particular conduct violates a Rule of Policy, impairs the objective of Policy for which Rules have been constructed, impairs the form of relationships necessary to the objectives, the issues involved are not necessarily matters of **Law**, but more likely those of politics, social or economic policy.

    General rule of thumb: If the “Rules” can be changed without changing the basic social order, they are not **Law.**

  2. JD Bryant says

    Just a thought. Is it morally wrong to break the law of a country not your own to fulfill the moral obligation to provide for your family? By family I mean parents and children. Couples I believe by default accept the conditions they are in when they get married or are less formally joined. When children come into the picture I think there is a change in the moral landscape. In regards to coming here illegally, is there a moral difference between couples and individuals, and families? What should be the punishment for each?

    • R Richard Schweitzer says

      A full response to what you ask would require understanding to what extent, and in what way, “morality” is the motivating factor of the particular conduct. That examination would take you to the issues of how the “morals” of the acting party, and of the intruded society have been formed, and whether or not there is sufficient commonality.

      Regardless of the answers (complete or not) the party acting does so at the risk of violating the Rules of Policy of the intruded society. That is when the test of sufficient commonality occurs.

  3. libertarian jerry says

    If all the hundreds of thousands,perhaps millions, of laws,regulations and ordinances on the books in all the government jurisdictions (Federal,state and Local) were enforced to the letter of the law the overall majority of the American people would be in jail. We do not live in a nation of laws but a nation of powerful men who use the law to gain power and control over their fellow man. As L.Beria,the head of Stalin’s secret police once stated “You find me the man and I will find you the law to hang that man.” Today,in America, the law is used to keep the citizens in line and to extract revenue to keep the Political Class running. Also,law in America is very fluid and malleable. This is why politically connected bankers and money manipulators can get away with stealing billions and just get a slap on the rest with a fine while some poor pizza shop owner who fudges for a few dollars on his Income Tax Form is hauled off in handcuffs and railroaded into jail. There are 2 kinds of justice in America. The first kind is just us. That is that the law is manipulated for the rich and powerful. The second kind is just you. That is the law that is applied to the peasants,at the will of the rich and powerful,to keep the peasants in line. In the end justice in America is corrupt to the core and breeds a disrespect for the law in general. In essence we live in a lawless society. That,and other factors,is why the American Empire will rot from the inside and disintegrate into dust.

    • R Richard Schweitzer says

      LJ,

      “We do not live in a nation of laws but a nation of powerful men who use the law to gain power and control over their fellow man.”

      That, and the examples cited, are very common views of what has been developing in the functions of the mechanisms of our federal government (which also extends to developments in local and state jurisdictions).

      But those perceptions may be misleading and obscure the actual nature of what has been developing with the establishment of the Administrative State. There are of course all of the usual motivations of privileges, power, status and immunities reflected in the actions of the individuals who design, develop, install, interpret and enforce the Rules of Policy which encapsulate the popular understanding of what constitutes “law;” consisting as noted, of legislation, myriad regulations, ordinances, “guidelines, ” policy statements and other excrescences.

      The old, original sovereignties of representative bodies, such as Congress (as censored by the judiciary), have been ceded to a “managerial class” of presumed specialists, experts or otherwise certificated individuals (or groups). The bulk of legislation and ordinances have become little more than descriptive frameworks of objectives generating authorities (in the form of departments, agencies, commissions, etc.) which pass into the hands of managers. While often denigrated as “bureaucracies” and “bureaucrats,” they are nonetheless coming to constitute the real dominant, if not ruling, class of the Administrative State. We are constantly witnessing demonstrations of the exercise of their “independence” from the legislative body which generated that authority; and the failure of political desire, let alone will, of the legislative bodies to adequately monitor, let alone control, the growing range of power of those who manage the Administrative State.

      During this process of the transfer of sovereignty, there has also been a concomitant, but obscured, diminution of the privileges, powers, status and immunities of what has been the dominant, and perhaps ruling, class (including the “powerful men”) and concomitant shift of significant portions of those features to the “managerial class” (in both government and business).

      These periods of development have begun to evidence patterns of reinforcement of their positions through increasing response by the managers of the Administrative State to demands or desires of politically aggregated interests, rather than to dominant economic interests (or to those of “powerful men”). This has also diminished the response to individual interests and is forcing the subrogation of individual interests into aggregations.

      The popular view may be that these conditions are “just bureaucracy” that can be “reined in.” That view ignores the underlying fundamental shifts in the social order which have led to the establishment of the Administrative State by passive acceptance, and actual consent of the body politic in seeking particular benefits or ameliorations from burdens.

  4. libertarian jerry says

    RRS……………………….Your thesis is correct. In essence, the Republic is dead and has been replaced with an administrative bureaucracy. This occurred when America declared bankruptcy and implemented marshal law back when FDR brought us the New Deal in 1933. By the way we are still technically under marshal law and under the thumb of administrative law. This has been done by setting aside the common law and the Constitution and instituting corporate law. Your Social Security number is your corporate number and ties you to the corporate state for your entire life.

  5. R Richard Schweitzer says

    LJ,

    Well, (due to lack of “sell by” date) having lived cognitively through the period referred to, this writer has been influenced by other studies of the changes.

    In the United States, one of the earliest events was the 1907 panic. This resulted in the legislative creation of the Federal Reserve System to provide for the management of currency and credit; independent of political participation; as contrasted with the US Treasury Department established to manage the fiscal requirements created by the political objectives determined by Congress.

    The 1913 establishment of the FRS coincided with the politically propitious events of 1912 that brought about increased trends (but not broad acceptance) of government by objectives “managerially” (by expertise) determined, which trends were reinforced from about 1915 onward through definitive efforts to take the United States into a European war in order to create conditions conducive to public acceptance of a State managed to conduct war and thereby demonstrating the effectiveness of the managerial concept.

    A pullback from, and brief hiatus in, those trends, in reaction to the European and Asian developments following the close of that European war, saw the development of managerial governments of striking (apparent) effectiveness in Italy, Germany Russia and Japan, which “resolved” major issues of mass unemployment that had become global in nature. The seeming difficulties of the “non-managerial” (mostly parliamentary) states in coping with the problems faced by large bodies of their populations led to serious academic and intellectual examination, as well as tests, of similar managerial structures in the United States. Much of this was misconstrued as “copying socialism,” since attempts and installing socialism required extensive managerial procedures.

    The “New Deal” period not only revive the trends established in 1913, but reinforce them in terms of dealing with global developments. The initial Russian format failed principally due to lack of competent managers and political circumstances that augured for mediocrity. The Japanese format ultimately succeeded following the disasters resulting from the contumely of the major clans that control the supply of management (since the days of the Shogunate). Italy’s “corporative” system lacked resources and scale, but is being imitated in some degree in France and the other satellites of the German economic community. Germany has successfully reestablished its managerial class, with more limited objectives (at least currently) that will expand in central Europe, which is adopting the “German format” somewhat spasmodically, but steadily.

    China, with its cultural “bureaucracies” history, has been making steady adaptations of both that cultural experience and the global examples in structuring a new type of managerial society. Not unlike the rest of the global patterns China experiences cupidity and stupidity, but appears to be developing depth of managerial resources. These adaptations are currently serving political objectives (power, privileges and immunities) but they will result in a particular social structure.

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