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Ignorance of the Law is no Excuse <?>

 
 
Khethil
 
Reply Thu 9 Oct, 2008 08:06 am
Hi Folks,

I've not been much of an Aquinas fan (actually, more often than not, quite the contrary), but as I was working on his SUMMA THEOLOGICA [1] this morning a portion hit me that's contrary to the well-known, much-extolled title of this thread and I wanted to run it by you all.

CORE QUESTION: Does ignorance of the intricacies, cacophany of laws imposed excuse ones' obligation to accept 'it' as a 'law'?



CLARIFICATIONS:
  • Collections of people, as I mean as nation-states and/or communities make 'laws' governing the conduct of their people. Whether formal or informal, written or word-of-mouth, most that I've come across adhere to the principle - loosely stated - "you should have known", "its your responsibility to know the law" or "ignorance is no excuse".
  • As a matter of utility, I'd agree with this; however, our favorite Saint-A (in the aforementioned treaty) makes a strong case against this in his "on the contrary" sub-heading below. Unfortunately, he backtracks on this somewhat in his objections 2 and 3 below by saying, essentially, "Well, others could have told you" -and- "Hey man, it's written!".
  • In this part he uses the word 'Promulgated' much; an understanding of what this words means is essential to get the jist of this article. The defintion is here; however, a general understanding of the word might be: To make known.
CITATION: From Summa Theologica, Part I of the Second Part, QQ 90 Article IV:

<BEGIN QUOTE>
[INDENT]Article 4: Whether promulgation Is Essential to a Law?
We proceed thus to the Fourth Article: It wold seem that promulgation is not essential to law.
[INDENT]Objection 1: For the natural law above all has the character of law. But the natural law needs no promulgation. Therefore it is not essential to a law that it be promulgated.

Obj 2: Further, it belongs properly to a low to bind one to do or not to do someting that the obligation of fulfilling a law touches not only those in whose presence it is promulgated, but also others. Therefore promulgation is not essential to law.

Obj 3: Further, the binding force of a law extends even to the future, since "laws are binding in matters of the future, " as the jurists say (Cod I, tit. De lege et constit. leg. vii) [2]. But promulgation concerns those who are present. Therfore it is not essential to law.
[/INDENT]On the Contrary, it is laid down in the Decretals, dist. 4 [3] that "laws are established when they are promulgated."
I answer that, as stated above (A.I), a law is imposed on others by wayof a rule and measure. Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Therefore, in order that a law obtain the binding force which is proper to a law, it must be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Therefore promulgation is necessary for the law to obtain its force.
Thus from the four preceeding articles, the definition of law may be gathered; and it is nothing other than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.
[INDENT]Reply Obj, 1: The natural law is promulgated by the very fact that God instilled it into man's mind so as to be known by him naturally.

Reply Obj, 2: Those who are not present when a law is promugated are bound to observe the law in so far as it is notified or can be notified to them by others, after it has been promulgated.

Reply Obj, 3: The prumulgation that takes place now extends to future time by reason of the durability of written character, by which means it is continually promulgated. Hence, Isidore says (Etym. ii, 10)[4] that "lex (law) is derived from legere (to read) because it is written."
[/INDENT][/INDENT]<END QUOTE>

So he makes a strong case for laws needing to be known. Then goes back on it with objection-replies 2 and 3. Yet what strikes me is the need for this promulgation and the quandry it places on culturs whose laws could contain thousands of volumes.

I feel that as Saint-A originally asserted, for laws to be accepted as laws, they must be made known; however, as a matter of practical utility, once the sheer volume of laws reaches a certain quantity, either (A) that a nation should release all its citizens from such laws -or- (B) all citizens, as a matter of fairness, should go through as many decades of memorization as necessary to know all laws and specifications. Since both of these are absurd, practically, we're left in a bit tenuous position.



DEDUCED IMPLICATIONS:
  • Must laws be 'made known' to be fairly enforced? Yes
  • Assuming we don't live in a village, how can we know them all? Answer: We can't
  • How is it fair to then enforce them? Answer: It's not
So yea, if we follow this line of logic through we're left with an unacceptable situation. Yet I (and I assume most of you) do accept; we just muddle through, try to use what we conceive to be common-sense and just kinda "hope" we don't get smacked with something we were supposed to know.

I'd appreciate any insight.



----
[1] Yea I know, I desparately need a life.
[2] Justinian, II, 68a
[3] Gratian, Pt. I, d. iv, append. ad can 3 (RF 1,6)
[4] PL 82, 130.
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Deftil
 
  1  
Reply Thu 9 Oct, 2008 11:02 am
@Khethil,
Oh, wow, I actually just read this about a month ago. [1]

I think Aquinas' format is interesting and I like the way he presents arguments and counter-arguments. I find him a lot more enjoyable than say, Saint Augustine.[2] Still, I'm not a huge fan of him myself, the way he always invokes God and divine law and all that. It may be worth noting that he wrote the above in the 1260's. The laws at that time might not have been as voluminous as they tend to be these days. What exactly is meant by "promulgated" may also be important.

Let's say a police officer placed me under arrest for breaking some law I had never heard of. I might then respond to him that I didn't think this was fair b/c the law wasn't sufficiently promulgated. After silently exchanging a few awkward glances, I would explain that I meant I wasn't aware of the law b/c no one made me told me about it. It seems likely that he would tell me that this wasn't an excuse, and where information on the laws is made available to the public. I would get almost halfway through telling him what Thomas Aquinas says in this section of the Summa Theologica before he cuffed me and threw me in the back of his police car.

Given the amount of laws we have, it's probably only feasible to make them available to everyone, but not actually tell every single person every single law. Sometimes this means that people won't be aware of all the laws, but we can't accept an excuse of ignorance in regard to breaking laws, b/c if we did, everyone would just be able to say they weren't aware of the law they had just broken. Perhaps if a law is relatively obscure, leniency should be and probably is exercised by either the police officer or the judge, if it gets to that point.

Maybe the state and federal governments should annually (or bi-annually) send out copies of the laws? Not every single letter of every single law, but the basics of all laws that normally get enforced. That might be fairer b/c it'd be easier for everyone to obtain and review the laws.

I wonder how often people get in trouble for breaking laws they honestly don't know about? Probably not too often... I mean I don't think it's ever happened to me so I don't know how much of an issue this turns out to be in modern society. Nonetheless, at least in theory it'd be nice to know that there is a fair way for laws to be enforced.[3]


[1] Yea, I don't have a life either.
[2] Our second favorite Saint-A?
[3] This is just a gratuitious footnote. I've really nothing more to say.
Khethil
 
  1  
Reply Thu 9 Oct, 2008 01:51 pm
@Deftil,
Hey Deftil,

Yea I agree with you. And no, I don't think this is a huge issue, but it's pretty silly, isn't it?

I mean, there are SO many laws (local, state, provincial, federal) for which one can be prosecuted. Yet... no one's revolting, marching in the streets yelling, "Cut the fat!". I don't know, just seems kind of silly to me.

But yea... just kinda hit me; for no particular reason. I wonder... just how many people are arrested/convicted for offenses they didn't honestly know about (the obscure, esoteric, antiquated).

Thanks for commenting... I was on a roll there.
0 Replies
 
Deftil
 
  1  
Reply Thu 9 Oct, 2008 05:37 pm
@Khethil,
I imagine the people that do catch trouble for laws they were unaware of are only committing misdemeanors rather than federal offenses. Instead of going to jail for a long time, they are probably getting ticketed and fined.

I don't know how many useless laws there are. Obviously we can't go cutting laws out of the book just b/c we want to, but I imagine that there is a certain amount of "fat" that could be "cut" if we took a close look.

Also - I like how Aquinas always says On the contrary in his arguments. I want to start using that phrase in my arguments.
:Glasses:ON THE CONTRARY! :Glasses:
PaulG
 
  1  
Reply Wed 29 Oct, 2008 03:31 am
@Deftil,
Just as a bit of a side issue, until recently in NSW, Australia, it was a publican's obligation to provide food, water and stabling for a patron's horse. It is still a requirement that, when called upon to do so, they must store a corpse until it can be taken to the morgue. Just 2 examples of some strange archaic laws. There used to be another 1, Rescue Person From Lawful Custody, can't find a reference at this time, but I just love the concept. Now, who would know that law?

Another point, Police often use what is commonly called the f**k-wit test. They stop someone, if the person stopped is reasonable, they'll probably get a warning, especially if they'd been stopped for breaking an obscure law. If the person stopped acts like a f**k-wit, they get charged. Could that be construed as promulgation? :sarcastic:
0 Replies
 
Fido
 
  1  
Reply Sat 20 Dec, 2008 03:00 pm
@Khethil,
Law is ignorance, so degrees of ignorance are given at law schools... Laws enforce injustice... laws are distinguished from justice by their name, and by the force needed to coerce obediance... What people do is justice, and for that reason most people do not need a cop or a lawyer in their pocket when they go about their affairs.... Only remember the key given by Abalard: Ius (justice) is the Genus, and Lex (law) is a species of it... Simply enough, if law is not justice it is not law, but only a form of coercion or violence... No one needs force to have justice...Just is, what people are, and what they do because of what they are, and is arrived at, not by form, but by mutual agreement...Justice is not this or that applied irrespective of the situation, but is for every two -the opposite sides of the same coin which each can only have by sharing it...

Now; you do know that little of Roman Law made it into English Law??? And that Natural Law came from the Roman Law of Nations which is our first real assertion other than in St. Paul, that all people are equal??? In a sense, to be natural, law must be shared by all native people who were not given to excess baggage, but whose need for justice in their lives was as great as our own...Only; they had resort to violence to achieve justice...Once a person has become disarmed, any claptrap presented as law must be suffered by him...Law must be just, and any inequality of political power or resources is not just, and so justice never grew out of medieval conceptions of the law...
0 Replies
 
Fido
 
  1  
Reply Sat 20 Dec, 2008 03:19 pm
@Deftil,
Deftil wrote:
I imagine the people that do catch trouble for laws they were unaware of are only committing misdemeanors rather than federal offenses. Instead of going to jail for a long time, they are probably getting ticketed and fined.

I don't know how many useless laws there are. Obviously we can't go cutting laws out of the book just b/c we want to, but I imagine that there is a certain amount of "fat" that could be "cut" if we took a close look.

Also - I like how Aquinas always says On the contrary in his arguments. I want to start using that phrase in my arguments.
:Glasses:ON THE CONTRARY! :Glasses:

A certain amount... 99% perhaps... Why don't we all need lawyers and cops and judges on every corner??? It is because in most of our affairs we are not given to cheat people or injure them.... The penalty and the law is for those who will not learn correct and normal human behavior to begin with, and yet they threaten all people with an overburden of police powers...
ciceronianus
 
  1  
Reply Tue 23 Dec, 2008 05:22 pm
@Fido,
As has been said, laws are too extensive to be known. The question becomes, as a matter of policy (general application), is society better off if ignorance of the law is, or is not, an excuse. One could argue that this depends on the law in question. But, again as a matter of policy, the position that each law must be evaluated as to its propriety whenever it is violated by an individual makes for an unworkable system. One can argue about whether a particular legal system or form of government is proper, but if it is proper, then as a rule, ignorance of the law should not be an excuse. Perhaps "promulgate" here should mean something more like "publically adopted by those empowered to create laws applicable to X." Even state and federal regulations (speaking only as to the USA) are adopted through an accepted procedure, and published.

That said, there are certain cases where "ignorance" may be an excuse, and should be an excuse as, for example, with respect to those criminal laws, or those involving fraud, which require the existence of a specific intent.
Zetetic11235
 
  1  
Reply Tue 23 Dec, 2008 07:52 pm
@ciceronianus,
Simple solution #1: Send out a pamphlet which cites all laws within a certain priority class. Note that in some areas where marijuana is 'legal' in certain quantities, it is actually just a negative priority so the police will not mess with you if you have under a certain quantity. So take these low priority crimes and leave them off the list. Take off the list uncommon misdemeanors, uncommon meaning those with a statistically negligible rate of occurrence. The laws which are left are those which no one can claim that they did not know. The others have ignorance as a defence.
0 Replies
 
Fido
 
  1  
Reply Tue 23 Dec, 2008 10:47 pm
@ciceronianus,
ciceronianus wrote:
As has been said, laws are too extensive to be known. The question becomes, as a matter of policy (general application), is society better off if ignorance of the law is, or is not, an excuse. One could argue that this depends on the law in question. But, again as a matter of policy, the position that each law must be evaluated as to its propriety whenever it is violated by an individual makes for an unworkable system. One can argue about whether a particular legal system or form of government is proper, but if it is proper, then as a rule, ignorance of the law should not be an excuse. Perhaps "promulgate" here should mean something more like "publically adopted by those empowered to create laws applicable to X." Even state and federal regulations (speaking only as to the USA) are adopted through an accepted procedure, and published.

That said, there are certain cases where "ignorance" may be an excuse, and should be an excuse as, for example, with respect to those criminal laws, or those involving fraud, which require the existence of a specific intent.

The ten commandments cover it all and are not extensive...People let their laws grow because they forget that the object is to guide, and instead seek to control... Like all forms of relationship, law must be made all form and no relationship before people feel they must escape it...If we are not there yet we are getting there fast.. It does not work... It just causes pain and no justice.
JLP
 
  1  
Reply Wed 21 Jan, 2009 10:32 am
@Fido,
Good post, Khethil.

In addition to arguing the voluminous nature of the law, I would also stress the complex, counter-intuitive way in which the law is frequently written, and the average citizen's ability (or lack thereof) to understand it.

It is not uncommon for a lawyer to stumble over a statute three or four times before beginning to fully grasp what it states. In addition to the wordy, overly-specific detailing, the law is also spattered with archaic "boiler-plate language" and obscure latin terms. I feel genuinely sorry for the average layperson who decides to represent himself in court (a "pro se litigant").

To my mind, ignorance might be the best excuse to the law! :eek:
0 Replies
 
Icon
 
  1  
Reply Wed 21 Jan, 2009 10:47 am
@Khethil,
I can honestly say that ignorance of the law is the person own fault. Law makers present the laws to the people and they are always readily accessible. I am not claiming to know every law on the books but i know the ones which portain to the actions which I take. I also know that I choose to live in a place with all of these laws and so I must follow them or move elsewhere. This means that ignorance og the law is not only my fault but also my problem and not the problem of the state.
JLP
 
  1  
Reply Wed 21 Jan, 2009 12:24 pm
@Icon,
I agree that the matter comes down to personal responsibility, and my last remark was made somewhat facetiously (hence the emoticon).

Still, my point remains that the law is so convoluted and extensive that one individual cannot possibly know it all. If you've ever stepped foot in a decent law library, then you know just how humbling that onerous collection of published jurisprudence can be.

You say that we have access to the law, and that is true, but how many people know how to perform even rudimentary, "free" legal research? Out of those that do, how many comprehend what they are reading?
Can you honestly say that you read the local laws of every municipality before you visit, that you study the nuances of what is permissible in each, and you are up-to-date on how the law has been interpreted in those fora? If you haven't, then you are ignorant of the law.

Frankly, I think we are all, to a very large extent, ignorant of the law. Even most attorneys and civil servants.
Icon
 
  1  
Reply Wed 21 Jan, 2009 12:33 pm
@JLP,
JLP wrote:
I agree that the matter comes down to personal responsibility, and my last remark was made somewhat facetiously (hence the emoticon).

Still, my point remains that the law is so convoluted and extensive that one individual cannot possibly know it all. If you've ever stepped foot in a decent law library, then you know just how humbling that onerous collection of published jurisprudence can be.

You say that we have access to the law, and that is true, but how many people know how to perform even rudimentary, "free" legal research? Out of those that do, how many comprehend what they are reading?
Can you honestly say that you read the local laws of every municipality before you visit, that you study the nuances of what is permissible in each, and you are up-to-date on how the law has been interpreted in those fora? If you haven't, then you are ignorant of the law.

Frankly, I think we are all, to a very large extent, ignorant of the law. Even most attorneys and civil servants.

I am not saying that I am completely versed in the law... However, I am versed in the laws which directly effect my activities. And yes, when I go and visit a new place, I make sure to become well versed in the common laws and legal nuance of the area. My point, however, was not that we do not know them all. That is true and will always be true. My point was that we must take responsibility regardless of our level of understanding/knowledge.
JLP
 
  1  
Reply Wed 21 Jan, 2009 12:52 pm
@Icon,
Agreed!







---------
0 Replies
 
Rheycer
 
  1  
Reply Sat 21 Mar, 2009 09:00 pm
@Khethil,
I feel that JLP said it best in #11, 13 but I would like to add, my own few words..Much of our laws/USA are purposefully convoluted to effect a purpose, which seems to be to keep the citizens in the dark. It (the convolution of the law) also effectually makes at least 2 classes of society, and many think that that splitting of society also is planned. All the contrivance and convolution could be stated in such a way as to be understandable to the general public, but they purposefully do not make it so. Always remember all the words of all the laws have meaning, and some are given meaning outside of the common or dictionary useage, which further confuses the average reader.


Since this discussion is on the devolution of the latin phrase "Ignorantia legis neminem excusat" it might be appropriate to mention that the de jure use of this phrase only applied to mala in se crimes. Those are the crimes which everyone is bound to know. Government for their own protection has misapplied, misquoted and otherwise missed the boat in the useage of this phrase until in this day it's de facto, and some might say de jure, useage applies to all the myriad of unknowable laws which government has foisted upon an apathetic world. It is impossible for any man to know even a small percentage of the laws which are on the books. I believe if one was to research it one would find that few of us who read this can go thru one day without breaking at least one of the many mala prohibita laws which are on the books of the various countries in which we live. So that makes all citizens criminals and it is only a matter of time till they catch you/me.
0 Replies
 
Aedes
 
  1  
Reply Sat 21 Mar, 2009 09:05 pm
@Khethil,
Khethil;27093 wrote:
DEDUCED IMPLICATIONS:
  • Must laws be 'made known' to be fairly enforced? Yes
  • Assuming we don't live in a village, how can we know them all? Answer: We can't
  • How is it fair to then enforce them? Answer: It's not
Most legal prohibitions fall into simple categories that we can all know. Like homicide, assault, theft, etc.

It's the subcategories of them and all the nuances that we can't know.

People can make a nuanced argument about ignorance of arcane or minor laws and perhaps get away with it.

But if you get drunk and start firing a gun up in the sky, and a bullet comes down and kills someone, then even true ignorance of laws about an act so dumb and reckless should not be sufficient to excuse the action.
Zetherin
 
  1  
Reply Sat 21 Mar, 2009 09:16 pm
@Aedes,
Aedes wrote:
Most legal prohibitions fall into simple categories that we can all know. Like homicide, assault, theft, etc.

It's the subcategories of them and all the nuances that we can't know.

People can make a nuanced argument about ignorance of arcane or minor laws and perhaps get away with it.

But if you get drunk and start firing a gun up in the sky, and a bullet comes down and kills someone, then even true ignorance of laws about an act so dumb and reckless should not be sufficient to excuse the action.


Are you certain we can't know minor nuances and minor laws? I believe we can - if someone took the time, there are many databases online, and many sources offline that would allow a person to obtain this information. I believe this is irrelevant, though.

It seems to me the severity of the law is actually the key; many minor laws people could get away with pleading ignorance, but it doesn't appear any major law people could get away with pleading ignorance. These minor laws are dubbed 'minor' laws because society has deemed to care less if these laws are broken, and vice versa with the major laws.

This is pretty much what you were implying, but I just wanted to see your thoughts.
Khethil
 
  1  
Reply Sat 21 Mar, 2009 10:27 pm
@Aedes,
Aedes wrote:
Most legal prohibitions fall into simple categories that we can all know. Like homicide, assault, theft, etc.

It's the subcategories of them and all the nuances that we can't know.

People can make a nuanced argument about ignorance of arcane or minor laws and perhaps get away with it.

But if you get drunk and start firing a gun up in the sky, and a bullet comes down and kills someone, then even true ignorance of laws about an act so dumb and reckless should not be sufficient to excuse the action.


You're stating the obvious; it's not the obvious (or shall we say, more popularly known) laws with which this is concerned. Here, let me give you some examples just to illustrate the kind of crap that, although not generally enforced, remains public law in various states:

  • Alaska: Moose may not be viewed from an airplane.
  • Alabama: It is illegal to impersonate a person of the clergy., It is illegal to sell peanuts in Lee County after sundown on Wednesday., It is illegal to wear a fake moustache that causes laughter in church., Masks may not be worn in public.
  • Arizona: Any misdemeanor committed while wearing a red mask is considered a felony., It is illegal to manufacture imitation cocaine., You may not have more than two dildos in a house.
  • Arkansas: A law provides that school teachers who bob their hair will not get a raise., A man can legally beat his wife, but not more than once a month.Flirtation between men and women on the streets of Little Rock may result in a 30-day jail term. (Little Rock, Arkansas)

These are just a few examples gleaned off one site (Source).

The point is this: There are so many laws about that one - even with the keenest of common sense - can't much follow them. Many, like the absurd ones above, are harmless. Nevertheless, one can't know them all
0 Replies
 
Aedes
 
  1  
Reply Sun 22 Mar, 2009 10:46 am
@Zetherin,
Zetherin;54609 wrote:
Are you certain we can't know minor nuances and minor laws? I believe we can
Bet you $5 I can find a law that you could ignorantly break without knowing it in advance. The issue isn't whether we can find every nuance on the books if we look. The issue is that we can't be expected to know every law of the land off the top of our head.

http://www.nytimes.com/2009/03/21/us/21religion.html?_r=1
 

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