Consider the following argument:
- (Premise) A law that is unjust is defective.
- (Premise) A law that places a special burden on those who possess some virtue is unjust.
- (Premise) An unenforced law places a special burden on the more law-abiding.
- (Premise) Law-abidingness is a virtue.
- 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:
- 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.
- Unenforced laws, even ones imposing significant burdens, typically do not carry a significant political cost.
- 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).]