Cruel Alternatives: Respect for Law or Respect for Justice

Cases like these reveal a fundamental misunderstanding about justice, not only among policy makers in Washington, but among far too many individual people. Proponents of immigration like to claim that most immigrants are productive and peaceful members of society who contribute to the economy and to their communities. Like all generalizations, it’s susceptible to counter-​examples, and although there’s much evidence that it’s true, it’s at least conceivable that someone might be skeptical. But Jamal and Garcia are particular cases, not generalizations, and it’s undeniably true that they are productive and peaceful members of their communities. Even if one were skeptical of the general, there’s no grounds to be skeptical of the particular. Immigration and Customs Enforcement (ICE) agents took them away just as if they were hunted felons – Jamal’s wife wasn’t even permitted to hug her husband goodbye. The video of Garcia’s sobbing family at the airport, which was widely circulated on social media, shows a similar attitude at work. What could possibly be the rationale for tearing these men away from their families, jobs, and communities? ICE’s answer is: they broke the law. But there are several flaws in this reasoning.

One problem with this way of thinking is that it confuses law and justice in the most unsophisticated way. Laws are important and worth preserving just to the extent that they serve a valuable social function. Laws prohibiting murder are a good idea because murderers violate the rights of innocent victims to live. Laws requiring us to all drive on the right are a good idea because they greatly reduce collisions. So, if I’m running around murdering people, or driving on the left side of the road, I’m violating the rights of others, and those others have every right to stop me, whether individually, or through delegated agents. But it’s clear that Jamal and Garcia weren’t violating anyone’s rights. So this tells us (a) that the laws under which they are subject to imprisonment are bad laws and (b) that there’s no justice-​based rationale for action against these particular individuals.

The common rebuttal to (b) is that for better or worse, the laws are the laws, and these guys broke the laws, so they deserve punishment qua lawbreakers. But that’s only correct when the laws themselves are just. Under the fugitive slave laws, anyone helping an escaped slave is guilty of violating those laws, but it doesn’t follow that they deserve punishment. And indeed, there was widespread jury nullification of people charged with that “crime.” The point of my putting the word “crime” in scare-​quotes just now is that there’s a difference between things that are actually criminal – violating the rights of others – and things that are criminal merely because the law is written that way. The former are actually bad, in themselves; the latter are only stipulatively designated as bad, while lacking any intrinsic badness. Since slavery is unjust, helping people escape from it is just, not unjust, even if designated as illegal. This brings us back to (a), the contention that there shouldn’t even be laws under which Jamal and Garcia are said to be lawbreakers. They were peaceful members of their communities, occupied with raising their respective families and doing their respective jobs. Like people charged with violating the fugitive slave laws, Jamal and Garcia are guilty only of breaking a rule that shouldn’t be there in the first place. It’s good, not bad, if there are people willing to help escapees from slavery. It’s good, not bad, if people have jobs and families.

The idea that law must be enforced even when unjust is an unhealthy one. As Bastiat noted, the presence of unjust laws forces people to either lose track of their morals or lose respect for the law. The worst aspect of this is when the people losing track of their morals are the agents of the law. In Les Miserables, Javert relentless pursues Valjean because of his commitment to the law. But his efforts are well out of proportion to the offense. Valjean has become a productive member of society, violating no one’s rights. I think ICE agents have also lost track of their moral compass. A regular policeman who arrests someone for battery or armed robbery can think of himself (correctly) as agents of justice protecting the weak from predatory behavior by bad people. ICE agents cannot think this. To imprison or deport Jamal or Garcia, they have to be thinking that because the law says Jamal is a menace, he is. Like Javert, they would have to be not only committed to the law as an abstract concept, but committed in such a way as to not care whether it’s right or wrong. Or worse, they would have to think that “I’m just doing my job” excuses any moral error they might be making. Individual Gestapo agents may have been ferociously devoted to Hitler and his ideas, or they may have been “just doing their jobs,” but either way they were acting wrongly. Similarly, ICE agents who don’t see anything wrong with ripping these men away from their families may have Javert-​level devotion to current immigration law, or just think they have a job to do, but in either case are acting wrongly. We see this also with TSA agents who sexually molest children or Border Patrol agents demanding “your papers” from passengers on trains – the best case explanation is that they’re “just doing their jobs,” and letting that override their sense of morality. Bastiat’s observation applies also to people who read about these stories. Some people find them outrageous abuses of power and applications of unjust laws – this means their respect for the law is diminished. Others react by saying “well, Jamal and Garcia deserve it; after all they broke the law” – this is evidence of poor moral reasoning.

As a coda, it’s not insignificant that going after Jamal and Garcia is a waste of resources. Even if you did think these are bad guys in some way for not having certain pieces of paper, how could you think that scarce resources are best deployed going after them? The government has employed all these people for the sake of making sure that no chemistry professor can emigrate from Bangladesh without going through proper channels. Aren’t there any illegal immigrants who are actually violating people’s rights? Surely if ICE has any legitimate mission at all, it would be to make sure that people who come here illegally, and then kill or steal, get rounded up and deported. Deploying those resources for respected community members with families and jobs is, if nothing else, irresponsibly wasteful. Since I can’t be the first person to think of that, one wonders whether they purposely target gainfully employed fathers in order to “send a message” to the “undesirables,” and remind all of us that power is not to be questioned, the law is the law, and authority is sacrosanct. This is not the proper relationship between the people of a free society and their laws.