COLUMN: An unjust law is no law at all
There’s a lot to be discussed about President Barack Obama’s recent decision to provide temporary semi-amnesty for undocumented immigrants, provided that they’re of roughly college age. But something peculiar has risen out of the discourse from opponents of the decision and is worth discussing by itself.
Among the voices repelled by the order, cries can be heard wondering, “Whatever happened to the rule of law?” There might even seem to be good reason for this — the idea of a president unilaterally scrapping the enforcement of a law might seem like an excess of executive power.
However, I don’t think such an act is an abuse of power. Furthermore, I don’t think most of the decision’s attackers who claim it violates the rule of law are really committed to the kinds of principles they’d need to take up to argue that it is.
At the risk of gross oversimplification, there are a couple ways in which we might view the nature and function of law. Those alternative views of law itself in turn spell out alternative visions of what the content and meaning of “the rule of law” really is.
Under the first, the rule of law is roughly equivalent to the law as it’s written and enforced. Not only that, but the law as written is a sort of autonomous entity, independently important and worth perpetuating for its own sake. Moral evaluations are perhaps, under this view, relevant in crafting legislation, but once it’s passed, it’s passed. The law is the law and should be enforced until it isn’t.
And, of course, it goes on that without absolute submission and devotion to the intrinsically valuable institution of law, life would be nasty, brutish, short and so on.
The alternative to this positivistic approach is one in which laws on the books are only important insofar as they uphold an independently moral principle. For example, murder is wrong and worth preventing — even through the direct use of force — no matter what the statutes say. By legislating against murder, the statutes are brought in tune with the law rather than really “creating” it, per se. For that reason, the statutes are justifiably enforceable due to being in tune with this pre-existing natural law that it is morally right to prohibit murder even by force.
Obviously, what the “rule of law” means is radically different depending on which of the two frameworks you operate under.
With the first one, it means the strict adherence and smooth operation of those statutes. Under the second, it means universal application of the moral principle behind just laws (a phrase which, by the same view, might be seen redundant as it’s sometimes expressed that “an unjust law is no law at all”).
Clearly, an order of mass-unenforcement is a break with the rule of law if we take the first option but not necessarily if we take the second. I am inclined to believe that even most people who think they hold to the first way don’t really do so if they carefully examine their judgments on a number of related cases.
Has anyone going 6 mph over the speed limit at 2 a.m. on an empty street passed a police car that just kept on going, then angrily thought to themselves, “Wow, what a corrupt cop?” This seems doubtful, but the view that law just is (and self-referentially depends solely on) what’s on the books and that those given the task to enforce it should be obligated to pursue all known infractions seems to require such a reaction.
Most of us would probably see nothing wrong with being glad the speed limit wasn’t enforced in that context or even think that a ticket would have been an entirely unnecessary action on the police officer’s part. The reason we think these things is because the speed limits are there for a reason beyond themselves: preventing drivers from endangering others. Moreover, if that reason is absent — for instance, if there are no other cars and the lone car’s speed was completely safe — the statute can be deemed unnecessary.
“If a cop tears up a speeding ticket, Americans cheer. If Obama tears up a deportation order, Americans mourn the death of the rule of law.” —Bryan Caplan, George Mason University economist
It might be objected that this analogy is imperfect because a single law enforcement agent using discretion is much less serious than the head of state issuing an across-the-board order to not enforce parts of a statute. But in the same way, a deportation that could feasibly ruin your life is much more serious than an annoying speeding ticket.
This also brings up the other reason I don’t think those who think they're mourning the death of the rule of law really want to accept all the implications of what they’re saying. At bare minimum, it makes no sense to say it’s immoral not to enforce an unjust statute.
Let’s say it suddenly became illegal, with penalty of exile, to practice Catholicism in some country. This would seem unjust and the penalty stiff, but let’s say the statute was legislated in a way that the nation’s constitution found legitimate.
Imagine you’re a police officer who consciously made the decision to look the other way whenever you knew someone was a practicing Catholic. Would you be doing anything wrong? Imagine now that you’re the police chief of a large city, and you make it official policy not to enforce the Catholicism ban. Are you flaunting the rule of law?
If you’re the governor of a district in this hypothetical country and you nullify the law, you also seem blameless. Does anything really change if you’re instead the chief of the executive branch, whose function is to oversee the carrying out of your nation’s laws, and you announce, “Yeah, we’re just not gonna do that?”
If the situation changes in any substantial way from the point of individual police officer to head of state and ends up making it unethical to not carry out injustice, I invite you to show me where that is.
This alone doesn’t mean there aren’t arguments in favor of fully enforcing the immigration laws Obama has chosen to temporarily waive for a limited group of people. Perhaps immigration laws are perfectly just and in tune with those principles by which law functions to uphold.
For what it’s worth, I don’t think that they are, given that they block freedom of movement and forcibly return peaceful people to the poor living conditions that they risked their lives trying to escape.
Even if immigration restrictions are just, the bare fact alone that there has been an executive decision not to enforce a particular statute does not mean that such an act violates the rule of law.
Defenders of existing immigration restrictions must instead directly face up to showing how such laws are just — or else they aren’t laws at all, and nullification of any kind at any level cannot be condemned.
Jason Byas is a philosophy junior.