Bryan Caplan  

The Righteous Scofflaw

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The most popular argument against illegal immigration is probably that breaking the law is wrong.  At least since the Nazis, though, virtually no one believes that breaking the law is always wrong.  Instead, we all recognize circumstances under which being a scofflaw is morally acceptable.  Law professor Ilya Somin elegantly explains the three leading theories of justified law-breaking in The Washington Post - and applies them to illegal immigration.

Let's consider them in order of popularity.

1. Strong presumption.  The most popular theory is probably that breaking the law is only justified under desperate circumstances.  As Ilya explains:
Some believe that there is a very strong presumption that can only be overcome by extremely powerful countervailing considerations. For example, perhaps southern blacks were justified in violating Jim Crow laws in the days of segregation, because of the severe harm that those laws inflicted on them. But ordinary Americans today are not justified in violating laws that harm them in more modest ways.
This story has an obvious problem: Most of its explicit proponents routinely break laws for trivial reasons.  Just look at the fraction of drivers who occasionally exceed the speed limit - and picture how they'd react if a passenger morally condemned them for driving 56 mph in a 55 mph zone.  

In any case, as one of my favorite challenges suggests, illegal immigration easily overcomes even a strong presumption in favor of obeying the law:
If anything is enough to overcome the strong presumption, it surely is a situation where obedience forces you and your family into life-long poverty and oppression that you did nothing to deserve, and violation of the law does not in itself harm anyone. The strong presumption theory might still condemn illegal immigrants who come from advanced liberal democracies, such as Canada or Britain. Life in these countries is at worst only modestly less happy and free than in the United States. But the vast majority of illegal immigrants are fleeing far worse condition - often even worse conditions than African-Americans endured in the Jim Crow era.
2. Weak presumption.  The theory most consistent with people's concrete moral reasoning is that legality only marginally tips the scales of righteousness.  Ilya:
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. Ditto for violations of various federal regulations that ordinary citizens and small businesses routinely run afoul of. Obeying all of these laws to the letter would be costly and inconvenient, and most people believe it is all right to violate them in cases where there is no significant harm to others.
Under the weak presumption, the propriety of illegal immigration is a true no-brainer:
[I]llegal immigrants have a much stronger case for violating immigration laws than native-born citizens do for their routine violations of the speed limit and various petty federal regulations. For most illegal immigrants, obeying the law would harm them a lot more profoundly than merely making it harder to get to work on time. It would consign them to lives of poverty and oppression in the Third World, a harsh fate imposed on them through no fault of their own, merely because they were born on the wrong side of a line on the map.
3. No presumption.  Ilya closes with the decidedly unpopular view that legality is morally irrelevant:
Finally, it is worth noting that scholars such as A. John Simmons and Michael Huemer argue that there is no presumption in favoring of an obligation to obey the law at all. They hold that a moral obligation to obey a law requires something beyond merely the fact that it was enacted by a government, even a democratically elected one.
Part of me wishes that Ilya spent more time on the latter theory.  After all, it's true.  But Ilya made the right choice.  Why struggle to sell Washington Post readers on a new philosophy of law when their pre-existing philosophies lead to the same conclusion?


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COMMENTS (25 to date)
LD Bottorff writes:

Arnold Kling said that conservatives tend to have a presumption in favor of obeying the law. As a conservative myself, I understand that tendency. Lawlessness leads to chaos. The problem is that if we are going to be bound to obey laws, they have to be good laws!

We need to realize that bad laws create bad situations - and those bad laws hurt real people.

Brett Bellmore writes:

I suppose my complaint would be that Ilya treats the question of whether foreigners have an obligation to obey our immigration laws, with a different question: Whether we are entitled to enforce them. And the third question: Whether, having them, the government is entitled to leave them unenforced.

I don't hold illegal immigration against the immigrants themselves, I might well do the same in their circumstance. But that doesn't mean I'm obligated to let them do it.

Mico writes:

What's being argued for by less honest people than Bryan is selective non-enforcement. No one is proposing to decriminalise immigration, only to regularise those who have already built powerful political lobbies within the US and who polling suggests will vote overwhelmingly for the Democratic Party.

RB Monical writes:

"Breaking the law is wrong" might be the "most popular" argument against illegal immigration but it is not primary reason it is opposed. The instinctual opposition to illegal immigration relates to the tragedy of the commons. We cannot let everybody in and preserve the reasons why they want in.

Those of us concerned with the increasingly oppressive burden of federal and state rule making wonder why illegal immigrants are getting a free pass to include being rewarded with full citizenship.

Further, those of us living in the border states see the huge underground economy legal immigrants have established to take advantage of the cost advantage to using their undocumented countrymen. We see many immigrants that, having gained their green card, are happy to ignore many other laws. After all, if they do get caught, they have accumulated a nice nest egg to live well in their former home.

vikingvista writes:

To be a successful person, you must consider both morality and government dictates. To be a good person, you must consider morality while disregarding dictates.

But what kind of person is it who considers dictates while disregarding morality? This is the kind of person who opposes illegal immigration *because* it is illegal. This is the kind of person whose ultimate defense is "Ours is a nation of laws."

Johnny Jonathan writes:
"I suppose my complaint would be that Ilya treats the question of whether foreigners have an obligation to obey our immigration laws, with a different question: Whether we are entitled to enforce them. "


Brett Bellmore, you have a right(according to American laws), but make it is morally blameworthy, like as being alcoholic.

"And the third question: Whether, having them, the government is entitled to leave them unenforced."

I think the government should not do things morally blameworthy, even if he has the right. For example, i think that the police should be sensible with people who need disobey the laws for a good motive, like Ilya demonstrated.

MingoV writes:

I've read much about illegal immigration. Nowhere have I found support for the belief that the main opposition to illegal immigration is that it is illegal. Thus, Dr. Caplan creates a straw man and tries to burn it.

The main arguments against illegal immigration are competition for jobs, bad effects on communities with large numbers of illegal aliens, and taxpayer money spent on schools, emergency rooms, and other facilities for illegal immigrant families that pay little or no taxes.

PubliusVA writes:

Under #2, Prof. Somin takes a bizarre approach to justifying lawbreaking on the basis of "no significant harm to others." The relevant question is not "will significant harm to others result if I break this law?" It's "will significant harm to others result if everyone breaks this law?" If everyone drives 5 mph faster than the speed limit, the result is a flow of traffic 5 mph faster than the posted speed limit. If everyone living "lives of poverty and oppression in the Third World" decides to violate U.S. immigration law, the result is to increase the U.S. population by hundreds of millions or billions of uneducated, low-skill workers.

John T. Kennedy writes:

Mingo V writes:

"I've read much about illegal immigration. Nowhere have I found support for the belief that the main opposition to illegal immigration is that it is illegal. Thus, Dr. Caplan creates a straw man and tries to burn it."

It's an argument which dominates discussion of the issue on TV and radio.

Hugh writes:
The most popular argument against illegal immigration is probably that breaking the law is wrong

That's just plain wrong.

Immigration is not bad per se, but limits are needed to ensure that immigrants can be assimilated into the receiving country's culture and economy without disrupting the lives of that country's citizens.

Massive illegal immigration has rendered those limits ineffective with consequent damage to existing citizens. It is also unfair on would-be immigrants who are playing by the rules.

ErikKengaard writes:

The law is there to protect the quality of life of middle class Americans. That law has nothing to do with morality.
Your decision to not invite poor, hungry strangers into your home for dinner may be immoral, but it would not necessarily be unwise.

ErikKengaard writes:

Bellmore, MingoV and Hugh make excellent points! It is unfortunate that there is no provision here for votes or replies.

Greg Heslop writes:

The argument for open borders is not at all similar to the argument for open house. The former merely allows fellow citizens to freely associate with folks from different countries, the latter is a command to share private property and is incompatible with free association.

If the argument against open borders rests on the idea that immigrants would use welfare programmes while paying little into them, the easy solution is to make eligibility for those programmes depend on citizenship. No need to touch open borders.

Pajser writes:
Greg: "The argument for open borders is not at all similar to the argument for open house. The former merely allows fellow citizens to freely associate with folks from different countries, the latter is a command to share private property and is incompatible with free association."

Open borders are more than that. Roughly using your terms, open borders are command to people to share state territory - which is also their property - with immigrants.

Difference is quantitative, not qualitative.

Greg Heslop writes:

I think the difference is qualitative. No-one is ordered to share private property with immigrants under open borders. If there are open borders and you do not want immigrants on your property, you can have it your way, just like you do not have to accommodate fellow nationals on your property under closed borders.

If we think of state territory as the sum of all private property, some property owners would associate with immigrants (let or sell flats, buy their services, develop friendships, etc.), and others would not. Those who would are forcibly prevented from doing so with immigration restrictions.

Pajser writes:
Greg Heslop: "No-one is ordered to share private property with immigrants under open borders. "
True. But if borders are opened, that means all citizens are ordered to share state territory, which is collective property of all citizens with immigrants. (In absolute monarchies the state territory is private property of monarch.)
"If we think of state territory as the sum of all private property, some property owners would associate with immigrants ... and others would not. Those who would are forcibly prevented from doing so with immigration restrictions."
True, but state territory is more than sum of private properties. It is collective property, and on some parts of that property, some of the property rights are transferred to individuals and other collectives.

Does it make sense?

Greg Heslop writes:

@ Pajser: Am I reading you correctly if the impression I get from what you write is the following: "There is private property and there is collectively held property, and because citizens are the joint owners of the latter, they have the right to exclude non-citizens from access to it"?

Collectively held property might be things like (many) roads and national parks. Private property would be things like land and buildings owned by folks like you and me or by privately-owned companies.

This would then mean that collectives "making decisions" about their own (collectively held) property is a potential justification for basing arguments against illegal immigration on the fact that illegals violate legislation. Because that legislation is simply the result of what property owners wanted.

I think this is an interesting objection, but I have several problems with it. Here are some of them:

(1) One could imagine owners of private property inviting non-citizens to do certain tasks on their property, possibly against compensation. These non-citizens would not necessarily have the right to trespass on property belonging to anyone else in the country, certainly not on collectively held property. Still, should not this be OK under (what I think is) your view of collectively held property?

(2) Supposing I want to sell my share in collectively held property, how would I go about doing that? Could I sell my share to a non-citizen (if I agreed to lose citizenship as part of the transaction)?

(3) Given problems of rational irrationality and rational ignorance, what good reasons are there to think collectively-held property will be managed in a sane way?

I hope I read you correctly, or most (perhaps all) of this might not apply.

robert yocum writes:

The premise of your argument in trying to equate a speeding violation (ie.. everybody does this and non one is harmed) VS. illegal immigrants cross the border also breaking a law.. (ie.. no one is harmed).. is FALSE. This is a false equivalency.

When somebody illegally comes here.. for whatever reasons they conclude are important, we as a society ARE HARMED THROUGH THE AGGREGATE OF COSTS ASSOCIATED WITH HOUSING, SCHOOLING. FREE LUNCHES.. PRE-SCHOOL, EMERGENCY ROOM VISITS.. ETC. .

Not the same as speeding. Sorry. This is a victim-less minor offense that you can't equate with millions of undocumented people breaching our sovereignty.

A modern civilized country has to enforce the social contract we all abide by. When one group decides they are somehow how exempt, or deserve special treatment then we are on a slippery slope to social chaos.

robert yocum
los angeles

Pajser writes:

(1) In feudalism, absolute monarch is private owner of the territory. (UK Queen is still owner of the land, limited only with contracts.) King gives away or sell the land, but he almost always keep some property rights, so he can write the laws, tax people and so forth. Alaska is rare example of selling of all property rights. In modern, democratic society, the nation replaced king. It is not theoretical construction only, it actually happened in revolutions. Now, nation have some property rights, and because of that individual cannot, for instance, keep A-bomb in his private apartment in New York. It is not entirely his property. If individual has all property rights - he could do that. Same for immigrants.

(2) In general case, collective property doesn't imply that members of the collective have right to manage any parts of the property independently of the collective or that they can transfer their rights on other people. However, the collective can decide that individuals have such rights and that is usually called "privatization." Eastern European countries were democratized first. After that, some (and not all) factories were "privatized", and citizens or workers became shareholders. But some factories and other properties are still managed only collectively.

(3) People are so passionate about basic political issues that they are willing to organize revolutions and putsches to ensure that it will be their way. In such circumstances, counting votes instead of counting guns is huge advantage. Although quality of democratic decisions is sometimes very bad it is hard to say that quality of decisions in dictatorship is better. Voters make only very few most important decisions directly and they know much about related issues. For instance, almost all people know more about communism and capitalism than about bread they eat. Decisions about marginal issues are smoothly delegated to experts.

I do not support property rights (collective and private) except as lesser evil in some circumstances.

r_r writes:

I, for one, weakly presume that violating a law is more morally praiseworthy than abiding by it.

Greg Heslop writes:

It seems as though the idea that collectives who happen to share some nationality have the right (if 51 per cent of them so decide) to exclude non-citizens comes, at least in part, from a concern with externalities due to immigration (loss of "culture", immigrants using state-funded facilities, etc.).

But in this case, why not simply introduce an entry tax (or Gary Becker's proposal of a market for citizenships) on those wishing to migrate to another country? Not my ideal solution, but surely a vast improvement upon the present situation. Those concerned could be compensated, and non-citizens would not be denied entry.

The fact that no such solution has come into existence (as far as I know) suggests to me that collective decision-making by politics is inherently incapable of sound policy-making.

Pajser writes:

Greg, in many countries, one can get the right to immigrate if he invests or prove that he has enough money. Google for 'E-2 visa', 'Tier 1 visa' or 'Monaco residence permit.'

Greg Heslop writes:

Overseeing investments or having enough money (in Canada I believe the sum is a million Canadian dollars) at the time of being granted a visa are not really the same as purchasing citizenship, though.

And there remain many problems with idea of collective property. Here is another one:

Suppose the people of the state of New York want not to be part of the USA anymore. Do they have the right to secede? If not why not and what, in principle, would then be the problem with, say, making emigration a crime? How do you decide where the power of collectives end? What about if it is just the people of Buffalo? Of a neighbourhood in Buffalo? A house?

Pajser writes:

Collectives should respect the right on free association. Everyone should be able to leave whenever he wants; everyone can join if he - and other members of collective agree. The question that left is - what happens with collective property if one leaves the collective. I think it should be the same as in case of divorce - partners should have right on secession with proportional part of the collective wealth. I believe even one man should have right to secession. Although not necessarily the land he currently live on, he should get some land. Just like divorce. UN General Assembly resolution 1514 is, essentially, right on secession.

I think that problem is not in collective but in property rights. Why Americans - and not Tanzanians - have the rights on America? I do not see good reason for that. However, individuals have exactly the same problem. Why Richard King has the rights on King Ranch?

George X writes:

There's not even a weak presumption that following a law is moral? What kind of wildly random lawmaking has to happen for that to be true?

It sounds suspiciously like the claim that a defendant in a criminal trial is no more likely to be guilty than anyone else — while that sounds like a good thing, it's logically equivalent to thinking police arrest, and prosecutors charge, people at random.

Following the major longstanding laws (against murder, assault, theft, etc.) is manifestly moral; I'd be stunned if you could find a counterexample.

Following the nitpickier laws (zoning, noise ordinances, vehicle emissions) may not seem all that morally weighty in itself, but they form a kind of deal with the rest of the citizenry. Even if you think nobody is really harmed by your loud 1:00 AM partying, it breaks the overall deal whereby your neighbors don't get to turn their property into a commercial parking lot (or whatever); unilaterally breaking a contract is immoral, at least to some degree.

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