A question was raised the other day concerning the prosecution or more correctly the lack of prosecution regarding certain criminal activities. It was asked, why we pass laws, which specify the nature of a crime and the penalty for being found guilty, if we do not enforce them? Though this article is not about illegal immigration, this question of laws and enforcement is central to both sides of the current debate.
The word illegal describes an act that violates a stated law. For example, there is a law that forbids parking within so many feet of a fire hydrant, and if a person is found to have parked their in front of fire hydrant then the penalty for the violation will be such. As a driver we are well aware of what constitutes a violation and the consequences for doing so. The description of an immigrant who is illegal seems quite clear without further definition; the person has entered the country in a manner that is contrary to the stated methods as prescribed by the law. The penalty for violating the law is quite clear. Yet, one side of this debate believes not only do we waive the penalties for illegal entrance, but that the criminal behavior be rewarded with citizenship and in-state college tuition. The question is begged, why we have laws concerning illegal immigration, when the consequence for being guilty of such is citizenship or some other form of amnesty. Secondly, if we do not believe the illegal crossing of the border to be criminal and therefore subject to the prescribed penalties, then why do we need government employees whose jobs have been created because of laws establishing the terms of legal immigration or the borders of the country.
Enforcement is not just an issue regarding the borders of the country. We often hear stories where there has been a violation of one sort or another and the prosecuting agencies of government fail to act. The alibi for non-enforcement is that resources are limited and attention must be given to the most pressing needs. This reasoning actually has a sound basis in economics and goes to the heart of the question, why we have laws if we do not enforce them? The underlying principle of any economic problem is the scarcity of resources that must be allocated among unlimited wants and needs. It stands to reason then, the more laws, which are in reality restrictions on human behavior, either additional resources need to be allocated to enforcement and/or allocation of resources, must be done with some degree of arbitrariness as to what crimes will be enforced. Arbitrary enforcement may mean some laws are not enforced at all or only certain circumstances outside of the law will determine if resources will be directed towards the illegal activity. It is at this juncture that the rule of law no longer exists and government becomes unpredictable. The rule of law states that the law is applicable equally to every one regardless of stature. In his book, The Road to Serfdom, F.A. Hayek brought forth the idea that in a free society it is the actions of government must be predictable and within the bounds of the law the actions of the individual is unpredictable. The example given is our highway laws which dictate speed and lanes of travel (driving on the right). Within the boundaries of driving laws, the direction we take as individuals is unpredictable.
The underlying problem from which our original question on enforcement was asked now becomes evident. Arbitrary enforcement is a result of too many laws; and considering the thousands upon thousands of federal statutes, state statutes, and local ordinances, there is simply not enough resources to enforce them all. The question over enforcement now becomes a derivative of the most fundamental question regarding government and that is: what is the proper role of government? Is it proper for government to pass laws and enforcement thereof to protect us from ourselves? Is it proper for government to pass laws which interfere with voluntary transactions between two individuals? Is it necessary to pass laws which dictate the use of private property?
The proper function of government and its laws are quite simple: Establish the legal framework for private property rights, safeguard life from the malice of others, and ensure a code of conduct for government to operate openly; functions that have been lost in a country of too many laws.