“Ignorance of the law is no excuse,” according to one legal maxim. And yet, in order for people to obey the law, there must be a “presumption of knowledge of the law.” Today, though, we not only have laws passed by legislatures, we have regulations passed by bureaucrats. These have the force of law, and if you violate them, you can go to prison. But whereas traditional laws have a connection to a moral principle–and so are knowable and understandable to the conscience–regulations simply promote a governmental goal. And there are so many of them that is almost impossible to know them all.
So says Michael Anthony Cottone in “Rethinking Presumed Knowledge of the Law in a Regulatory Age,” in the Tennessee Law Review. George Will reviews the article after the jump.
From George Will,
When everything is a crime – The Washington Post:
The regulatory state is rendering unrealistic the presumption that a responsible citizen should be presumed to have knowledge of the law.
There are an estimated 4,500 federal criminal statutes — and innumerable regulations backed by criminal penalties that include incarceration. Even if none of these were arcane, which many are, their sheer number would mean that Americans would not have clear notice of what behavior is proscribed or prescribed. The presumption of knowledge of the law is refuted by the mere fact that estimates of the number of federal statutes vary by hundreds. If you are sent to prison for excavating arrowheads on federal land without a permit, your cellmate might have accidentally driven his snowmobile onto land protected by the Wilderness Act.
Regulatory crimes, Cottone observes, often are not patently discordant with our culture, as are murder, rape and robbery. Rather than implicating fundamental moral values, many regulatory offenses derive their moral significance, such as it is, from their relation to the promotion of some governmental goal.
The presumption of knowledge of the law is, Cottone argues, useful as an incentive for citizens to become informed of their legal duties. Complete elimination of the presumption would be a perverse incentive to remain in an ignorance that might immunize a person from culpability. But “there can be no moral obligation to do something impossible, such as know every criminal law,” let alone all the even more numerous — perhaps tens of thousands — regulations with criminal sanctions. The morality of law, Cottone argues, requires laws to be, among other things, publicized, understandable and not subject to constant changes. Otherwise everyone would have to be a talented lawyer, “a result hardly feasible or even desirable.”
[Keep reading. . .]
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