Illegal aliens today, global citizens tomorrow: the rule of law in the face of historical social change

A society based upon the rule of law is a historically progressive achievement of our human civilization. Nevertheless, there is a peculiar limitation within this achievement, which prevents it from becoming a universal, timeless and faultless institution. And this limitation is more than often overlooked as a result of the ideological bias of our liberal societies. In fact, as a consequence of the ignorance regarding it, we are not capable of understanding the tensions that arise within the question of the rule of law in relation to the historical social change. And unfortunately, this limitation is absolutely inevitable given the framework of the legal system and the nature of our social development. So what is this feature that demands our constant critical observation to focus upon the decisions and rulings by the courts?

That there is a lot of corruption within the legal world - only the most naive could argue against that. That there are double standards and that influential and wealthy individuals are more than often treated differently from the ordinary folks - we are not short of such examples as well. Adding to that, each particular judge may have his or her personal political allegiances as well as social perspectives that might influence his or her decisions. Lastly, a particular law itself could be faulty due to a variety of reasons, with a simple laziness to delve deeper into the matter on the part of the lawmakers being one of them.

However, at least in theory these flaws and limitations are remediable. Better checks and higher penalties against corruption. More political weight to ensure equal treatment of the rich and the poor. Regulations to enforce a greater involvement of professionals and the larger society within the processes of law making. But the limitation of the rule of law that this text is concerned with - and which does not seem to have a solution - stems from the ever changing social consciousness that accompanies human development. Every historical period produces its own social truths and norms. And this ideological phenomenon is at the basis of the legal system of every particular epoch, of every historical society. As these social truths evolve, so must the legal system. But the evolution of social consciousness is a very slow and gradual process, hence there is the constant clash between the emerging new ideas - initially regarded as radical or fringe, but which eventually would become dominant - and the rule of law still based upon the old social consciousness.

Let’s look at particular examples. The court opinions in the USA between 1860 and 1930, related to women injured in car and wagon accidents, “treated gender as an important factor in assessing appropriate standards of care”. Those were the great times when the judges held the “shared understanding that wives had less authority than husbands and, nearly as consistently, that women lacked competence in the public sphere of transportation”. And here are some of the practical consequences of such great historical differences in social consciousness:

“An 1860 Connecticut case provides an early example of the assumption that women were bad drivers, and how that assumption could operate within a personal injury case. In Fox v. Town of Glastenbury, the estate of Harriet Fox sued the town, arguing that the accident in which she died was caused by the town's failure to maintain a railing along the sides of a causeway. The jury had rendered a plaintiff's verdict, but the state supreme court vacated and remanded for a new trial, holding that although the town's failure to maintain a railing along the causeway was indeed negligence, Fox's attempt to pass across the causeway was contributory negligence.”

The argument of the court was as follows:

“We are not unmindful of the fact urged upon our attention by the plaintiff's counsel, that these travelers were females. And in that fact, and in the timidity, inexperience, and want of skill which it implies, we can find an explanation of their injudicious and fatal attempt to turn around in the water, but no reason or excuse for the recklessness of their conduct in driving into it.”

Does the court want to imply that men would not have attempted to cross the causeway, due to their better judgement of the risks of the situation? Or, is it claimed here that they would have managed to cross it successfully? In either way, such gender-based double standards would be unfathomable today. But the key question here is the following. Were we to be transported via time-machine to that historical moment, should we accept such arguments by the court? Should we respect the corresponding decisions by the judges? Should we treat their determination of judicial decisions as serious?

But there is more. Would we accept today to place the blame upon the woman for an accident, where she got injured, but where it was her husband in the driving seat? Unimaginable. And yet, “in the earliest cases involving the contributory negligence of a husband-driver and his wife-passenger, the husband's negligence was frequently imputed to his wife, for the stated reason that she was subject to his control”. In other words, the law accepted the conservative “understanding of marital status which subsumed wives' identities in the identities of their husbands” and dismissed their individuality. The following was a statement by a judge:

“Now, there are certain circumstances, gentlemen, in which as a matter of law the negligence of a driver of a carriage ... may be imputed to another person who occupies the vehicle with him; as, for instance, a father is driving, and has a child in the carriage, or a husband is driving, and has his wife there with him, or a guardian is driving with a ward that he has under his care .... [B]ecause ... the one controls the other, and where ordinarily ... we recognize the fact that the one trusts the other, and relies upon the other for protection; that is, a husband exercises protection, and the wife looks to the husband for protection.”

Over time, inevitably, the ideology of “marital unity” would fade away, which would provide women with legal personality and would recognize their individuality. But until these tectonic shifts within the juridical system, our contemporary notions and social truths regarding marital status would have made us radicals and extremists. Again, being transported to those times in a time capsule, should we challenge the rule of law? Should we thereby become “criminals” of those times, especially given our knowledge that we would be vindicated in the future?

But enough with the time travel. The historical processes at work within these examples are still in full swing today. Just as certain “criminals” of the past would not be criminals today, in the same manner certain “criminals” of today will no longer be considered as such in the future. And the question of immigration falls under this same historical law. For our exposition we may remain within the USA.

Recently the Supreme Court has “granted the Trump administration’s emergency request to lift a temporary restraining order barring federal immigration officials from conducting ‘roving patrols’ and profiling people based on their appearance in Los Angeles and Southern California”. As expected on such occasions, this ruling was both praised and criticised - depending on one’s political stances. The racist segment of the US society could celebrate, for the immigration agents now could “legally resume aggressive street sweeps” based upon the ethnicity, language, and/or the particular type of employment. To quote one of the judges, “ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered with other salient factors.”

There were also detractors of such a decision. As stated by a dissenting judge, “we should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.” And it goes without saying that had the decision been the opposite, we would likewise have had the dichotomy between the reactions coming from the opposing camps. So here is our predicament in full swing. If a court decision goes in favour of the conservatives, they can then brandish the rule of law, while helping the immigrants to evade the anti-immigration policies would turn the progressives into outlaws. But if the court’s decision favours the immigrants, then it is the progressives who proclaim the rule of law, whereas it would be the racist segment of the society that would question the legal system. It appears that we are running in circles with no way out.

And it would be the case if there was no historical social progress. Both confrontational positions are subjective, it is true. But given that the history of humanity is a never ending trajectory of social change, it is possible to discern which ideas are in the ascendancy and which ones are in the process of dying their natural deaths. In other words, objectively it is possible to proclaim which position is on the so-called right side of history. And there are tons of historical examples where the courts and the justice system itself were on the wrong side of history. The fact that social science might go against someone's prejudice or beliefs should not concern the progressives at all.

So how should the topic of immigration be treated in this regard? Well, the modern nations and their corresponding nation-states are merely a transitory stage within human history. They have not always existed, and they will likewise fade away alongside the economic development of the global community. And once this global community regards itself as one unit, once it no longer sees itself as divided into different nationalities, the concept of immigration itself will become as foreign as the 19th century idea of “marital unity” appears from our perspective. The future generations will regard our current distinction between “legal” and “illegal” immigration with the same incomprehension as we regard the distinction between married and non-married women within the legal judgements of the Victorian period.

And this applies both to the cases where a decision goes against the immigrants, as well as where the decision is favourable to them. For example, the UK government was recently considering sending some of the asylum seekers to Rwanda. However, “on 15 November 2023, the UK’s Supreme Court declared the policy unlawful because Rwanda was not a safe country to which asylum seekers could be removed.” Again, the progressives had the opportunity to rejoice, whereas the conservative nationalistic forces even suggested that the “government should essentially ignore their international obligations and send flights to Rwanda anyway”. One could argue here in response that the progressives are no better when they themselves are ignoring the rule of law, for instance in favour of the migrants. And from the subjective perspective such a statement would be correct.

But not from the objective one. Not from the historical one. The very fact that our contemporary notions regarding immigration will no longer exist among the generations to come - this fact renders the challenges directed against the rule of law by the conservatives and the progressives qualitatively different. And the fact that the former are not capable of reading history is not the problem of the latter.

We shall finish off with yet another quote by an individual representing the legal system of a bygone era - to provide a better sense of how astonishingly ridiculous the current ideas of border controls and immigration policies will look in the eyes of the future generations:

“By the universal sense of mankind, a privilege of management, a superiority of control, a right of mastery ... is accorded to the husband, which forbids the idea of a co-ordinate authority, much less a supremacy of command in the wife. His physical strength and dexterity are greater; his knowledge, judgment, and discretion assumed to be greater; all sentiments and instincts of manhood and chivalry impose upon him the obligation to care for and protect his weaker and confiding companion; and all these justify the assumption by him of the labors and responsibilities of the journey, with their accompanying rights of direction and control.”

Sources:
https://repository.law.umich.edu/book_chapters/38
https://calmatters.org/justice/2025/09/la-immigration-sweeps-supreme-court/
https://migrationobservatory.ox.ac.uk/resources/commentaries/qa-the-uks-policy-to-send-asylum-seekers-to-rwanda/
https://www.politicshome.com/news/article/tory-right-revolts-over-supreme-court-rwanda-ruling

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