Friday, May 1, 2009

Unenforced laws

Consider the following argument:

  1. (Premise) A law that is unjust is defective.
  2. (Premise) A law that places a special burden on those who possess some virtue is unjust.
  3. (Premise) An unenforced law places a special burden on the more law-abiding.
  4. (Premise) Law-abidingness is a virtue.
  5. Therefore, unenforced laws are unjust and defective.

Example of such a law: the laws, present in most states, that use tax must be paid on all purchases from out-of-state retailers, including Internet ones. (This law is a big nuisance, too. We have a notebook where we record every Internet purchase, and every year I need to add up all the purchases, and send a form and a check to the state.)

In regard to the argument, I am worried that "burden" is equivocal: in (3) it is only what one might call a de facto burden, in the sense that only the law-abiding feel the burden. However, perhaps, in (2) it should be a de jure burden—one that the law intentionally imposes. (None of this is technical legal terminology. I am no legal scholar. And probably I am just exposing my ignorance of philosophy of law here. But, I'm still having fun with the arguments?)

Still, maybe there is some way of making (2) and (3) be unequivocally true. Perhaps we can make (2) hold for de facto burdens. (Or at least if we qualify (2) and (5) with "apart from a really good justification for the difference of burden"?) While I think (2) is very plausible in the case of virtue, because I see virtue as part of the common good that the state should (cautiously) promote, I think there are parallel arguments one might make. For instance, if the legislators know, or ought to know, that local law enforcement officials will enforce some law only on minories, then perhaps the legislators are acting unjustly, barring a really good justification?

Here is a second argument against unenforced laws, based on my wife's affirming something like (7) after I told her about that Texas law which says that as soon as you make three private, non-commercial sales—e.g., selling one's kids' used toys on craigslist—in a given twelve month period, you thereby become a retailer, must obtain a sales tax permit, and must collect sales taxes starting with the third sale:

  1. In a representative democracy, a law imposing a significant burden on people, which burden they do not already bear, should carry a significant political cost on the legislators for the sake of their accountability.
  2. Unenforced laws, even ones imposing significant burdens, typically do not carry a significant political cost.
  3. Therefore, unenforced laws that impose significant burdens fail a requirement of representative democracy.

I used to think there was nothing wrong with unenforced laws. I am still inclined to think that might be able to have unenforced laws against intrinsic wrongs, such as the breaking of private promises, because the burden of such laws is already in place by virtue of their moral normativity.

[Fixed a nasty typo in (1).]


Chong Choe said...

Dr. Pruss,

Thanks for posting this. This sort of thing interests me, but unfortunately not many others.

Laws are complicated. They’re usually not the result of ivory-tower analysis. Instead they’re the result of consensus and compromise based on the information available to the legislators at the time, which usually is always inadequate to address some future situation that’s bound to arise. But laws are frequently amended and revised. What you may find unjust probably had some reasonable basis at the time. Also, laws are unenforced for various reasons, including and especially that, despite the legislature’s intent and purpose, the state may lack the resources to enforce the law.

[You can go to the paragraph beginning with "As to your argument" if you're not interested in my comments on the examples.]

In your first example, the use tax on purchases may seem unreasonable, but the state must tax its citizens in various ways to obtain revenue sufficient to run its essential services and programs. Even though you purchased something from an out-of-state retailer (and probably paid out-of-state taxes), such purchases deprive your state of tax revenue the state would have received had you purchased the same products in the state. If such transactions occurs on a large scale, your state would not have the revenue it needs to run its essential services and programs. For this reason alone, the state is justified in imposing such taxes. Also, you could look into the law of the state where the retailer conducts its business. You may be able to recuperate the local or state taxes paid to the out-of-state retailer—but, alas, that would require another form and more time and energy. So the law may seem unjust only because you have paid the costs without availing yourself of the benefits that may be had.

Your second example demonstrates perfectly how laws are inadequate to address future situations. The legislature probably didn’t have in mind ebay and craigslist when they originally enacted the law. I wonder if the law will be changed to accommodate this (maybe by increasing the number of exempt occasional sales), but that usually requires that someone challenge the law, which requires that someone is found to have violated the law, which requires that the state actually enforce the law. So this law probably will be another one in the books for years collecting dust.

As to your argument, it’s hard to speak in terms of “good” and “virtue” in the law because these terms are somewhat vague, in that, they don’t have an agreed-upon meaning. So, in premise (2), I would replace “those who possess some virtue” with the phrase in (3) “those who are more law-abiding.” I also would replace “special” with either “greater” or “disproportionate.”

I would simplify the argument, as follows:
1a. A law that places a greater burden (without adequate justification) on those who are law-abiding is unjust.
2a. An unenforced law places a greater burden (without adequate justification) on those who are law-abiding.
3a. An unenforced law is unjust.

This makes more sense to me. But now to the argument itself. I think people can object to (2a) as false (your (3)). It may be false because an unforced law doesn’t place a lesser or greater burden on anyone if it is truly unenforced. I also think that, in most cases, there’s going to be adequate justification, and that justification being the lack of state resources to enforce the law. Let’s say the law requires x. You perform x. Citizen C fails to perform x. The state does not have adequate resources to enforce the law. C gets off scott free. Is the law unjust? I don’t think so. You could say the lack of enforcement is unjust, but that’s something different. Also, if the law is unenforced and compliance is entirely up to the citizens, then those who choose to comply may be motivated by their own reasons and, so, benefit in other ways (e.g., a clear conscience before God, the satisfaction of knowing that one has obeyed all the laws that one is aware of, or other religious or personal benefits). In such situations, the law doesn’t impose the burden inasmuch as these other reasons compel obedience.

I don’t have time to review your second argument carefully, but I would mention that I’m not sure if paying taxes on occasional sales constitutes a “significant burden” particularly in light of the opportunity to make a profit. I also would reiterate that the lack of enforcement is not always the legislator’s fault (of course, if the legislators knew that the law would not be enforced or would be enforced disproportionately, they may be held responsible).

Alexander R Pruss said...

Thanks for the very helpful comments, correcting some of my naivete.

I have no objection per se to use taxes and the like (apart from worries whether they are not in fact unconstitution tariffs on interstate trade, though I know the courts have ruled to the contrary, and who am I to know better?).

I am worried, though, about unenforced taxation.

Here is another reason to worry about unenforced taxation. When taxation is unenforced, presumably compliance is significantly lower. But when compliance is significantly lower, the tax rates may need to be higher to generate the same revenue (unless the costs of enforcement would exceed the revenues gleaned from enforcement--and this exception is significant). Thus, a failure to enforce may lead to a higher tax rate for those who do comply, and that is unfair.

The points about who is responsible for the lack of enforcement are all very good. I was imagining--and to be honest I do not know if the cases at hand are such--laws that are unenforced by design. (Though there are such laws. I recall that at some point Canada considered putting into place an unenforced, penaltyless law criminalizing the spanking of children.)

Actually, now that I think about it, an important feature that my arguments neglect is that a law might be enforced in some but not all cases. (In fact, rarely is a law enforced in all cases, except maybe the laws against murder and the like.) So, use tax laws are, I think, enforced in some cases--if someone makes a sufficiently large purchase, such as a car, which then comes on the state's radar screen (e.g., because one registers the car with the state), then there is likely to be some enforcement. That probably destroys the application of my first argument to use taxes.

Heath White said...


I will reveal my moral turpitude by questioning (4). It seems to me that there are all sorts of laws that are knowingly unenforced around the margins. Speed limits are an obvious example, as are many other traffic laws. If someone never breaks the speed limit because they are super conscientious, I would call that scrupulosity (I think that’s the word?) or pedantry or over-sensitivity rather than virtue. The point of these laws is that people drive safely, but (a) that’s hard to codify and (b) we don’t want to leave it entirely up to the discretion of the police, so we compromise by passing a rough codification in law and give the police some leeway in enforcing it.

I would suggest that out-of-state use taxes, and small-time income from sales, fall into the same bin. Roughly, if compliance costs more in your time than the state collects, don’t sweat it. The goal is for the state to get a piece of any significant economic action; but this is not significant.

Obviously such moral flexibility is open to abuse. And I certainly don’t want to say that law-abidingness is a vice or even morally neutral. More like, law-abidingness-within-the-intent-of-the-law is the virtue.

Here’s another way to think of it. There is a prima facie case for ignoring unjust laws. If your argument is correct, then unenforced laws are unjust, and there is a prima facie case for ignoring them. You ought not ignore them, if that would undermine the rule of law generally (or something like that) but in these “marginal” cases that is not a serious concern. So precisely because such laws impose an unjust burden on the law-abiding, one need not abide by them!

Alexander R Pruss said...

That said, I didn't mean the virtue of law-abidingness to be the habit of "obeying every law, just or unjust, no matter what", just as the virtue of generosity is not the habit of giving all to all indiscriminately. Rather, the virtue of law-abidingness is that of obeying the laws that morally are to be obeyed, when they morally are to be obeyed, in the way that they morally are to be obeyed. :-)

I am not sure that an unjust law may always be disobeyed. Those unjust laws that require us to do something immoral obviously must be disobeyed. But suppose that a tax law is unjust. Are we therefore permitted to omit paying? I am not sure. Was Caesar's tax system fully just?

But I know that there is weighty authority on your side. For instance, Aquinas basically seems to think that unjust "laws" are not really laws--hence law-abidingness does not even come up.

I am scrupulous. :-) I try never to go above the speed limit, except briefly when safe driving requires it (e.g., getting on the freeway, or making space for someone to get on the freeway). I justify the latter with the "intent of the law" idea--the point of the speed limit law is safety, and it seems like it would be perverse to observe the speed limit law in a way that endangers safety.

On the other hand, if there is an absurd tax, one might make an argument for the value in sending a required $0.50 check that costs the government $5 to process--it's a form of civil protest, in the hope that eventually an audit will catch the absurdity. :-)

Anonymous said...

This seems to have a connection to your last entry, where you said "I don't find 'God is necessary for moral truths to exist' that compelling". Bill Craig would however be interested in using such arguments, since he argues that moal truths require moral obligations.

Alexander R Pruss said...

Yes, but it's not clear to me why moral obligations especially require God? (I say "especially", because of course everything in some way requires God.)

Alexander R Pruss said...

Or is the idea that the moral law requires enforcement as well to be obligatory? I've never found that convincing. Actually, I've never found the analogy between human law and moral law very compeling, though I need to think whether I shouldn't find it more compeling, given (a) the natural way in which we use the word "law" in both cases, and (b) the tradition in Christian authors talking of the moral law as something that God has legislated (whether by command or by creating us in a certain nature or both).

Anonymous said...

Well, it seems that you can easily insert "moral law" instead of "law". Then, it looks a little like the old argument from Kant.

Chong Choe said...

Dr. Pruss,

Not all laws are intended to be enforced. Some laws are simply statements of policy (e.g., the state expressing approval or disapproval of something). And, even among the laws that are accompanied by some consequence for noncompliance and some procedure for enforcement, I would assume that most legislators have an idea as to how well or poorly a law will be enforced and, if poorly, still may have a reason good enough to pass the law.

I would mention that, the situation you’re describing is not technically unenforced taxation (because obviously you and possibly one or two others actually are paying the tax and the state is collecting), it is unpunished noncompliance. I would think that other principles (maybe specific due process considerations in the context of taxation) would apply to prevent a few people from bearing the burden of covering all the revenues expected from a particular tax.

What comes to mind is that a state’s allocation of resources to enforce laws may depend on different considerations such as the importance of what is being proscribed by the law, the cost or harm associated with noncompliance, and whether other rights or interest are at stake (e.g., equal protection). For example, because most states rely more heavily on income taxes for tax revenue than use taxes, they may allocate more administrative resources to ensure that its citizens are paying income taxes. As another example, because speeding presents a greater danger to public safety than, say, jaywalking, more law enforcement resources are allocated to catch speeding violators than jaywalkers. Because of the state’s finite resources, I think it’s safe to say that all laws are not perfectly enforced or that noncompliance is not always punished. So it may always involve this sort of imperfect balancing of considerations to ensure the best use of resources.

This also brings to mind something that often concerns me, that is, how many wrongs are simply left unanswered—this is true not only in law, but also in life generally.

Chong Choe said...

Dr. Pruss,

You wrote: "Or is the idea that the moral law requires enforcement as well to be obligatory? I've never found that convincing. Actually, I've never found the analogy between human law and moral law very compeling, though I need to think whether I shouldn't find it more compeling, given (a) the natural way in which we use the word "law" in both cases, and (b) the tradition in Christian authors talking of the moral law as something that God has legislated (whether by command or by creating us in a certain nature or both)."

This is very interesting. This makes me think about the connection between the concept of law and the concepts of responsibility/accountability and judgment/accounting. Maybe all these concepts are closely tied under an overarching concept of justice.

I’m actually working on a theory of law—-and I think that there is a parallel between moral law and human law, with human law being an imperfect copy of the moral law, one that in large part amounts to accommodations for the circumstances we find ourselves in, rather than ideal principles of morality. I do see the moral law as part of the natural law or laws by divine legislative decree. But this gets quite involved and is probably far beyond the scope of your original comment.

Alexander R Pruss said...


That's an interesting idea--I see your point. I think the conclusion you'll get is that there is something unfair in the arrangement, then. However, maybe the unfairness is not in the moral law, but in the shirkers. And that might be a good answer to my first argument, too. It is not the law that is unjust, but the shirkers do an injustice to those who keep it.


The parallel is well worth thinking about, of course. These will be really good things for you to work on with Mark Murphy!

In addition to accommodations, one needs to think about determinations. Thus, the moral law requires concern for safety of oneself and others. This concern pushes us to say that, morally speaking, everybody should drive on the same side of the street. But which side? The moral law is silent. It's up to human law to determine this (quite appropriate) gap in the moral law.

So there are times when the moral law is more determinate than human law (e.g., the moral law prohibits us from lying in all kinds of circumstances in which human law is not troubled by lying) and sometimes human law is more determinate than the moral law. The latter case puts a bit of pressure on an approximation theory.

Chong Choe said...

I agree that both the moral law and human laws are indeterminate at times because their application will depend on the circumstances.

It’s very interesting that you mention “determinations” along with accommodations because I think all laws are operations of will and, when more than one person is involved, operations of will and agreement.