Hayek Program Podcast · Mercatus Center at George Mason University

Jacob T. Levy on Tensions Between Immigration Control and the Rule of Law

·1 hr 19 min·5 clips

Levy says the rule-of-law conflict gets worse when border control moves from the border into the country’s interior.

1. Hayek Program Podcast speaks with Jacob T. Levy about immigration control, the rule of law, and his 2018 New York Times article "Law and Border, the Rule of Law and the Risks of Lawlessness." 2. Nathan Goodman interviews Levy, a McGill University political theorist and senior fellow at the Niskanen Center, because Levy writes on law, freedom, and border policy. 3. The episode asks what the rule of law is for and why closed borders can weaken it in the United States. 4. Levy defines the rule of law as general and prospective rules that people can know in advance. 5. Levy says retroactive rules fail the rule-of-law test because they cannot guide behavior before punishment. 6. Levy connects rule-of-law stability to freedom from unjust punishment, contract enforcement, and property law. 7. Levy says those legal expectations let people plan careers, create businesses, and make future contracts. 8. Levy places Montesquieu at the root of his framework and describes despotism as government by fear. 9. Levy says Montesquieu's separation of powers protects people from ex post facto laws, lettres de cachet, and arbitrary seizure. 10. Levy draws on Lon Fuller, Friedrich Hayek, Michael Oakeshott, and Judith Schklar to explain different parts of the same tradition. 11. Fuller appears through eight criteria for law, including publicity, prospectivity, and non-contradiction. 12. Levy uses Fuller's King Rex fable to show why deciding each case ad hoc undermines legal guidance. 13. Hayek contributes the idea that general rules make spontaneous order and mutual coordination possible. 14. Levy uses traffic rules, roundabouts, and stoplights to show how people coordinate without sharing the same destination. 15. Oakeshott adds the idea of law as adverbial conditions that tell people how to act rather than what to do. 16. Schklar pushes the discussion back toward punishment, police power, and the fear of secret police. 17. Levy argues that mostly closed borders concentrate state violence and function more like war than ordinary law. 18. Levy says border enforcement often lacks due process for citizens, residents, and asylum seekers who may have lawful claims to cross. 19. The conversation is an interview with detailed back-and-forth, a classroom-like pace, and repeated examples from contracts, driving, and border checks. 20. Readers interested in political theory, immigration law, and Hayekian legal thought will get the most from it; listeners wanting a light, fast-moving chat may skip it.

As heard by us

A careful case for keeping immigration enforcement inside the discipline of law, not just punishment.

Jacob Levy treats immigration enforcement as a test of how far law can separate punishment from protection. The strongest stretch of the discussion is where it clears away rule of law language and shows what remains when a whole group is treated as suspect.

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Why you'd press play

Press play if you want immigration debated as a rule-of-law problem, not a slogan fight.

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