A New Year’s Take on an Old Law

As a New Year dawns, it struck me as a fun mental exercise to examine an old precept and determine if it is valid (long standing tradition may mean that something is so sound it cannot be improved-hence its longstanding-or merely that it is so sold it is unquestioned, and stands merely on that fact.) One of our oldest tenets, taken as unassailable, is that ignorance of the law is no excuse. But is this really a solid premise?

Courts have acknowledged that this rule leads to harsh (read: unfair) results since our country’s founding. But this prejudice to the individual is discounted because a contrary rule would make life difficult for the state. It would prove impossible to prove a defendant even knew the exact interpretation of the law, and thus, the guilty would go free! Society itself would collapse. As a Libertarian, caring not one whit for the imposition on the state, the fact that a rule protects the individual and places the burden where it should be is hardly a reason to refuse to adopt it. Moreover, is this really believable? With any law that matters-rape, robbery, etc.-what rational jury could possibly believe that a defendant was unaware of the wrongness of his actions? Anyone foolish enough to argue that the prohibition against burning down his neighbor’s home was ambiguous would be guaranteeing himself harsh punishment. No one is going to try this; this is silly. This is not really a valid excuse.

Yet, let us accept, simply for the sake of argument, that this made sense back then. Does it still hold water today? Back at the time of the Founding, laws were relatively rare and simple. The average individual could be expected to know the thirty laws which may apply to him, each of which would be a sentence or two long. A lawyer was a luxury, not a necessity, and most people not only could defend themselves, but they did. Just as often as not, they were successful.

This rule can make sense only when the law is both knowable and understandable by the average man. That is no longer true today. It is simply not possible to keep up with the sheer number of regulations that are put out by the federal government. Add in the myriad of laws by the state, county, and all the cities, and it is beyond the ken of mere mortals. Try reading a “simple” law, (replace “or” in line 23 of 18 U.S.C. 1918 and replace it with “and” while changing the “;” to a “,”), let alone multi-thousand page monster like the PATRIOT Act or Affordable Care Act. Ask five lawyers what any given provision means, and you’ll get twenty-three answers. Courts disagree on “clear” laws all the time.

So, saying that ignorance of the law is never an excuse is indefensible. If professional lawyers have to specialize in very narrow areas (drugs, guns, porn), and even then, their knowledge is often lacking, it is unreasonable to expect lay people to be fully informed. Few laws nowadays are as clear as “thou shalt not kill.” Even a simple ban on pornography or guns takes endless verbiage, and half of it is still open for debate.

While this is infirm on its own, it has been expanded with glee. Taxpayers are routinely penalized for good faith reliance on professional CPA advice, sometimes, in extreme cases, even when that advice is arguably correct on an ambiguous provision. Criminal defendants who trust their lawyer. only to find out he had no idea what he was talking about, are left without a remedy. Prisoners are given one year to research their entire cases and file a motion (ignore the facts that the prosecution may have spent much longer as as a professional) and pro se petitions are most often dismissed for technical mistakes.

This attitude is essentially a trap in today’s world for even the conscientious citizen. There is nothing wrong with placing the burden on the Government to make laws widely known (Think: Click It or Ticket) and easily understood. Since the failure to do so is a hallmark of tyranny, why wouldn’t we let people plead ignorance? The only way it will work is if the jury itself has not heard of or doesn’t understand the law, meaning the defense is valid.

This dogma was poorly reasoned, even in olden days. It is indefensible now. Society would be well served by clearing such intellectual driftwood from the system’s waterways.

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