I’ve been thinking about the
requirements for “just law” recently. One, of course, is promulgation, since
without promulgation the spirit of the law—the intention of the legislator,
the truest law—cannot be known to those upon whom it enjoins.
But what exactly renders “promulgation” valid, effective, just, etc.? This
requires a further level of philosophical investigation, one which I will now
endeavor upon at least preliminarily.
It seems that “just law” must conform
to reality. Ignoring the epistemological problems inherent in this thesis, and
dismissing for the present a host of post-Scholastic objections that could be
raised against the tenability of “reality” serving as a valid criterion for the
law, let us accept this thesis, not so much qua thesis, but
for now at least, qua
premise of the unfolding argument. “Just law” must conform to reality.
This necessitates that any criterion
for the law must also conform to reality. Therefore, as we sketched briefly
above, promulgation—a necessary prerequisite for “just law”—must conform to
reality.
Now it occurs to me that most of our
laws in the United States, if not those in every self-respecting sovereign
nation-state, do not conform to reality in this respect. In the United States,
the dictum “ignorance of the law is no excuse” {ignorantia juris non excusat}
is often cited as dogmatic tenet of due process, and therefore of public
justice. But can this principle of trial law serve as anything more than a
legal fiction for the convenience of our courts? Does this principle actually
conform to reality? In other words, is ignorance of the law a valid excuse?
I should say it is. In a simpler time
before the advent of the omni-competent regulative superstructure of the
Sovereign State, it was almost possible for the educated person to know all the
laws. In the customary legal systems of the classical world, one learned the
law by living in society; legally-binding customs (a notion foreign to individualistic
Americans) were passed down naturally and socially, thereby precluding the
invocation of “ignorance” as a valid excuse.
Later, the codifications of the continental civil law made the law accessible
to the upper classes at least, and their size and scope were somewhat restricted. In England, too, the principles of common law were able to be
mastered by the intelligent barrister, anyway, and so in both legal systems it
was a reasonably doable dictum, that “ignorance of the law is no excuse”. But this changed
within the ever-expanding competencies and legal framework of the Sovereign State
in the face of the ever-increasing complexities of the modern age.
I will take as an example
illustrative of my argument and applicable to many other jurisdictions the
situation of Federal criminal law in the United States. The United States Code
(U.S.C.) is at the time of writing 52 titles, with most if not all of those
spanning multiple volumes and with more titles planned. The United States Statutes-at-Large—the legally admissible evidence of law,
used to challenge the non-positive
U.S.C., which is merely prima facie evidence of the law in
effect—is
larger still, in publication since the infancy of the Republic and sometimes
including provisions that the Office of the Law Revision Counsel has elected to
leave out of the U.S.C., adding further complication in spreading knowledge of
the law. The United States Department of Justice, among others, has attempted
to accurately calculate the number of crimes contained throughout the U.S.C and
has not even been able to render an accurate count (Title 18, Crimes and Criminal Procedure,
is not the only place where crimes are stipulated). If the governmental
instrument of legal enforcement is not able to even provide an accurate count of total
federal crimes—let alone draw up a comprehensive list by subject matter of all
crimes currently ‘in force’—then how, might I ask, does it conform to reality
to decree that “ignorance of the law is no excuse” in a criminal proceeding
when the very agency tasked with prosecution is unaware of the total number and
therefore scope of criminalized subject matter? Quite simply, there are
currently too many Federal crimes for the average citizen, the citizen who is
procedurally precluded from invoking ignorance of the law as an extenuating
factor.
“Ignorance of the law is no excuse”,
it might be objected, is mandated by the necessities of criminal law, for
otherwise every defendant would invoke the opposite of such principle and be
thereby acquitted. This is a valid objection, and I concur that many shrewd
defenses could be constructed thereby. But this objection does not address
whether a fundamental principle of law, that law must conform to reality, is
honored by the existence of this principle. I offer a supplementary principle—Prosecutorial convenience is no excuse for the contravention of reality. The
culture of “having it on the books” so that when-and-if there is ever use for
an obscure criminal provision, it exists for the prosecutor’s convenience and
discretion (if the Justice Department is even cognizant of its existence in the
first place) contravenes the real state of legal knowledge of almost all
criminal defendants, and through no fault of their own, since the Justice
Department does not even know of all crimes. Simply “having it on the books”
does not fulfill the goal of promulgation, that the law be made known publicly.
This practice produces today's climate of legal knowledge and erects the rule
of law as an esoteric instrument of total power thinly veiled.
The solution to this crisis is the
repeal of many criminal laws, not the evermore resounding parroting of the obsolete
principle “ignorance of the law is no excuse”. In the last analysis, when the
leviathan of the modern legal complex is judged against the reality of the
average subject upon whom such law is claimed to enjoin, the principle
“ignorance of the law is no excuse” falls flat as a contravention of reality
and therefore of justice. The principle may stand in the context of a
manageable legal corpus, but advocating the feasibility of such a sizable reduction on the
part of the Sovereign State is an equally extravagant contravention of reality.
A just legal framework must respect both the legitimate complexities of the
modern order and the non-virtuosic abilities of the average citizen. Wherefore
“ignorance of the law” is an excuse; 21st
century legal philosophers must craft an alternative theory that respects
contemporary legal reality, thereby rendering the law in conformity with
reality and reinstating its full morally-binding character as “just law”.
REVISED 17 SEPTEMBER 2015 (Constitution Day and Citizenship Day, cf.
36 U.S.C. 106), 11:50PM PDT
