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Ignorance of the law is now a defence

I put this up as a Samizdata quote of the day, before realising that there already was one. Sorry. But, it’s good and deserves plentiful copying and pasting, so here is that posting rehashed, with the quote in question as its starting point:

So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003, and the satellite Statutory Instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair to hold up their hands and say: “the Holy Grail of rational interpretation is impossible to find”. But it is not for us to desert our judicial duty, however lamentably others have legislated. But, we find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception.

That is the Court of Appeal struggling to make sense of the Criminal Justice Act 2003. Found here by him (who has recently resolved to blog approximately every day and whom I recommend) via a comment on this, which is about, among other foolishnesses, the recent fashion among Them for stopping us taking photos of Them.

My dad was a Big Cheese lawyer, and I can remember him telling me stuff like this several decades ago. I vaguely recall him saying that until about nineteen sixty something or thenabouts, there was this bloke who lived in a den in Whitehall and who spent his time rewriting laws so that (a) they didn’t contradict themselves, and (b) they didn’t contradict each other, but (c) so far as he could contrive it, they managed to maintain the original will of the legislators, insofar as he could divine it. If he could not divine it, he made it up, as intelligently as he could. But then, catastrophe. He retired. Ever since then, the laws have got more and more incoherent and incomprehensible. And of course now, you would need about a hundred of such non-existent paragons of legal non-incontinence just to keep up.

As Rob, the above mentioned blogger quotes another commenter saying:

We are told that ‘ignorance of the law is no excuse’ but how can it not be an excuse when even the courts are unsure of what the law is?

In practice, I think I notice that, recently (i.e. during the time since that old bloke my dad talked about retired), They have evolved a relatively sensible way of enforcing Their laws (senseless though the laws themselves frequently are), which is based on distinguishing between real laws and arbitrary laws. The real ones, against things like murder, assault, robbery and so on, still get you arrested at once, provided They catch you at it. But the vast mountain range of arbitrary laws and rules and regulations, often in the form of policy directives from On High about what various Acts of Parliament actually mean (given that as originally written they are quite often gibberish) according to On High, are enforced by you first being given a warning. You may not park on that purple line. You must have a permit to hand out leaflets here. You can’t wear that hat or that suntan lotion or eat that sticky bun or drink that drink in that sized glass or call that an artichoke. You are obliged to fill in this form. You must send it to us (i.e. Them) within one month. Etcetera, etcetera, et something angry cetera. Which means that, in practice, ignorance of the law has become the obviously reasonable defence that it obviously now is, with regard to almost all recently concocted laws. If They were to insist otherwise, They would get repeatedly involved in huge fights with people who don’t want to break the law, but who don’t know what it is. I.e. with everybody.

I now live my life certain that I am constantly breaking laws of this or that recently invented sort, and as far as I am concerned it is up to Them to tell me about which laws actually matter to Them. I will then, if I think that Their particular commands or demands make some sense, or if They are sufficiently menacing about them, obey them. Or, I will carry on breaking whatever idiot law it is or that They have just made up without troubling Parliament with the petty details, but a bit more carefully. I still take photos of policemen, for instance. I am just a bit more careful about letting them know I’m doing it, and am careful while doing it not to Look At Them In A Funny Way.

Decade after decade, to mention another example, I have failed to register to vote. Occasionally I read somewhere or see something telling me that this is illegal. Is it? I don’t know and I don’t care. Nobody menacing actually tells me that I must register and threatens me with actual trouble if I don’t. So from where I stand, the mere law of the matter can go jump into the Serpentine.

If They want me to be more respectful of “the law” (which is how They typically now describe Their laws), They should reduce the number of – and reduce the incoherence and arbitrariness of – Their laws, to the point where the laws that remain mostly make sense.

24 comments to Ignorance of the law is now a defence

  • Where’s is Paul to tell us about the demise of the Byzantine Empire?

  • One of my fantasies is that lawmakers stay on approximately the salary they have now, but each year they have to pay for a copy of ‘The Law’ to be mailed to each of their constituents. I’d settle for ‘The Tax Law’ in fact. I feel it might lead to some simplification.

    This thought was brought about when I was trying to do some bathroom improvements in Minnesota. It was made clear by the City that I had to comply with code, but when I asked for a copy of said code it didn’t really exist; the City broadly followed some national standard, subject to improvement and interpretation by individual inspectors. This led to the inspector telling my (professional plumber) father in law that we needed vent pipes to prevent air locks in the water system, and my f-i-l explaining that there were 20+ million homes in the UK that said you really don’t. You can guess who won, of course.

    Aside: From Alisa’s comment, is there already a ‘Paul’ established here? If so I’ll happily change my screen name. Or learn about the Byzantine Empire, if that’s preferable ;)

  • Michael Staab

    In the book Atlas Shrugged, the character Hank Reardon is confronted by one of the thugs in their attempts to obtain his metal. The thug points out that the laws they implemented were never meant to be followed, as they were deliberately contradictory. Those laws were meant to be the snare that would be used to control those who broke those laws.
    While the book is fictional, I think the policy of entrapment and entanglement is deliberate and one in which some governments employ. The likelyhood of being able to NOT break some obscure regulation or directive is diminished by every regulation and law that is added to the whole.

  • Laird

    Paul, Alisa was referring to Paul Marks, our resident expert on all things antiquarian. I’m sure he would appreciate your making the effort to learn about the Byzantine Empire; he seems to do all the heavy historical lifting around here.

  • RW

    For a year in the late 70s I rented a room in a flat in the City from a friend of my father’s. This chap was a parliamentary draughtsman and very much in the tradition you describe, Brian.

    At dinner one evening he was unusually silent and I asked him what was wrong. Apparently someone had rung him up and asked what a particular section of a bill which he had written actually meant. His prompt put down was derided because, to his vast embarrassment, he had trapped himself in a triple negative.

  • RRS

    Tho’ not from a Grande Fromage:

    Legislation is not Law.

    It is given ” the force of law.”

    Even in forms of nominally representative governance, the bulk of legislation (let alone ancillary regulations and “rules”) is crafted by the non-elected.

    In the U.S. it has been instructive to note the historic trend of the increasing proportions of case volumes on statutory issues.

    There has been (tho diminishing ?) defense of “vague and indefinite” statutes in criminal law. So, even if one is aware of a statute or ordinance, its application must be certain.

  • Sam Duncan

    My father is a retired lawyer (although not a particularly big cheese), and is fond of the quote (I can’t recall who said it):

    The law is, for the most part, common sense, except where a statute intervenes.

    This sounds like a blind defence of the law as it stands until you realise that statutes intervene rather a lot. And are increasing almost exponentially.

    It is, in fact, a good argument for the libertarian ideal of common law (“natural law”, we call it in Scotland) being supreme, with a small number of statutes taking a minor role.

    Incidentally, my dad also says that the “ignorance of the law…” maxim originally referred only to Roman civil law (ie, if you enter into a contract and are unaware of what you’ve agreed to, that’s your own lookout), and tends to agree that applying it to criminal statutes is a bit of a liberty. On the other hand, even perfectly reasonable laws would be hard to enforce if ignorance was a defence.

  • Laird

    RRS, I think you’re confusing “legislation” (a/k/a “statutory law”, which is law by definition) with “regulation” (which, as you noted, is given the “force of law” even though promulgated by unelected bureaucrats rather than elected legislators).

  • Michael Staab: I quoted that bit of Atlas Shrugged here. I almost quoted it again in my post but it was already too long.

    Alisa: That wikipedia page about Parliamentary Counsel has an example of a particularly convoluted bit of language that for some reason reminded me of the game of nomic. I suppose that’s all law-making boils down to, really.

  • Kristopher

    Actually, US Federal judges are starting to accept ignorance of a regulation as an excuse.

    They really are getting just that complex.

  • Yes Rob, that passage is why I posted the link. I never heard about Nomic though – fascinating. Skimming through the pages there I noticed that the main theme is “changing the rules”, by which it is meant adding new ones, or amending/canceling existing ones. What I have not seen is interpretation. That makes sense, as the game seems to be based solely on the legislative branch. Am I right, or have I missed it, and there are other branches involved?

  • veryretired

    It has long been my contention that the US has been taken over by a slow motion coup-d’etat perpetrated by the guild of lawyers.

    It isn’t a conspiracy theory, since I see no evidence of a controlling cabal or, for that matter, any thought out long term strategy. It’s not like the absurd claims about the freemasons or illuminati scheming through the centuries to control the world.

    But the legalistic framework of the US government, combined with the relentless push to solve any and all problems with more and more legislation and social programs, has resulted in the bizarre, and unwise, spectacle of a small group of professional legal devotees in control of all three branches of the government.

    This is clearly, at least it is clear to me, a significant conflict of interest in that the same small group of people write, enact, enforce, and interpret the laws by which an entire complex society must live.

    Considering the shambles our economy and social institutions have become over the last several decades, since the depression of the 1930’s and then WW2 ushered in the initial wave of big government activism, I don’t think it is out of bounds to question whether this gradual takeover might have damaging effects.

    Now, we observe the few thousand lawyers who dominate the federal government, from the President to the heavily lawyered Congress through all the various agencies, almost invariably led by an attorney, have proposed to take over and control the medical system, the operations of one of the country’s major manufacturing industries, and the financial system which funds not only our own nation’s commerce, but much of the world’s.

    Can anyone imagine the response if doctors had proposed taking over the legal profession? Or if a group of manufacturing executives had claimed the right to operate the courts?

    The response would be derisive dismissal, and rightfully so. In a form of Bizarro-ism which seems every bit as ludicrous, however, a small group of pols and their colleagues, elected and appointed, have somehow made the claim that they should control every conceivable sector of our national and social life, and the only timid response has been some modest demonstrations in protest by a few hundred thousand bewildered citizens.

    Why are the laws so vague and confusing?

    Because very mortal and fallible men and women are trying to do what no one has ever been able to accomplish—cover every base, foresee every option, control every possibility, and manage everything that happens in a worldwide economic and social complex.

    But, of course, their intentions are good. After all, its for the common good, in the public interest, all for equality and fairness.

    Why must I be such an old grouch and complain? Must be that burning, queezy feeling in the pit of my stomach.

  • Alice

    “Why are the laws so vague and confusing?”

    They are really not so vague & confusing, VR. They are simply all-encompassing & contradictory.

    This provides the neat result that what is nominally the Rule of Law has once again become the Rule of Men. Almost everyone is breaking some law or other almost all the time. The authorities generally ignore this, until someone in power decides he or she does not like you. Then you are toast.

    In the case of the Branch Davidians, literally toast.

    One day you are innocently reading your Bible and staying out everybody else’s way. The next, Janet Reno’s goons are using a tank to break into your property with guns blazing and burn down your home with your children inside. And then, to make sure you get the message, you end up on trial — not Janet Reno.

    The end result of that kind of behavior is a spreading contempt for the Rule of Law — which leaves us with a non-sustainable society. The current insanity will end. Unfortunately, it will end in tears.

  • PersonFromPorlock

    Sam Duncan, I don’t know that quote or its author but I wouldn’t be too surprised if it turned out to be the American humorist, Will Cuppy. I just sounds like him and he had a pretty distinctive style.

  • Laird

    I think veryretired has it about right. Laws are “vague and confusing” not because of a conscious desire for obfuscation on the part of most participants in the law-creation process, but rather quite the opposite: when confronted by ambiguity the draftsman is “seized by an urge to elaborate” and thereby reduce it.

    This idea was put forth in 1982 in a wonderful and elegant short essay by Bayless Manning, a distinguished legal scholar, entitled “Hyperlexis and the Law of Conservation of Ambiguity”. Unfortunately, he chose to publish it in the Journal of Taxation, thereby ensuring that few would read it, and even more unfortunately I can’t find an electronic version so I cannot post a link[1] to it. (I do have a physical copy somewhere in my files, so I suppose I could scan and send a copy to anyone interested.)

    Dean Manning had two central theses (these are my words, not his, and this is from memory): First, perhaps even more than most “experts”, lawyers like to get things precise. They are constantly expanding and polishing their words to cover every conceivable contingency and exception. Young lawyers are especially prone to this conceit (older, more experienced ones tend to realize the ultimate futility of the exercise), but of course it is mostly young lawyers who serve on the staffs of legislators, Congressional committees and regulatory agencies, and who actually write most of the laws and regulations. Second, all this elaboration doesn’t really result in a reduction in ambiguity, it merely transfers it elsewhere (hence Manning’s “Law of Conservation of Ambiguity”). His example was looking at a forest. From a distance, you see many trees but no detail. Move in closer and you see an individual tree but the leaves are indistinct. Look as a leaf and its structure lacks detail. Examine it under a microscope and the edges of the vision field are blurry. It doesn’t matter how closely you look, at the margin the view will always be blurry. This analogy applies to the law, too. No amount of tinkering can remove all ambiguity; it can only be shifted around.

    So the “slow motion coup-d’etat” noted by veryretired is some sense real, but so is the fact that it is largely unintended (even accidental) and uncoordinated. Most of these people really are trying to do what they think is right and good. Unfortunately, the cumulative effect is neither.

    [1] For anyone interested, the citation is 36 Tax Law 9 (1982).

  • Alisa, you are right. From what I’ve seen of nomic games, part of the fun is constructing rules that create logical traps for your opponents. Interpretation is done by the players; although you could introduce rules about how to interpret the rules. (Even the constitution can be changed…)

  • Laird

    I came across a very interesting quotation concerning the superiority of common law to statute law, which seems a propos to this thread:

    In a decentralized legal system, “[l]aw develops in a case by case manner during which judges fit and adapt existing law to circumstances so as to produce an overall order which, although it may not be efficient in a technical, rationalistic sense, . . . is more stable than that created by statute . . . . Statute law is in fact much more capricious [than common law] precisely because, in the modern world especially, statutes change frequently according to the whims of legislatures . . . . A structure of law which is not the result of will and cannot be known in its entirety, paradoxically, displays more regularities than a written code.” — Barry, The Tradition of Spontaneous Order, 5 Lit. of Liberty 7, 44 (1982), quoted in Peter H. Aranson, “Bruno Leoni in Retrospect,” 11 Harv. J. Law & Publ. Policy (1988): at 723, n.40.

  • Laird, how does judicial activism fit into this?

  • Laird

    Not sure. I guess one could argue (hope?) that the “animal spirits” of a few activist judges would be tempered by the rest of the bench, but I don’t know if that is realistic. Still, on balance I think I’d rather put my trust in the judiciary than popularly elected politicians. At least the changes are more glacial.

    Still, here’s another relevant quotation: “It has long, however, been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; . . . working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” — Thomas Jefferson

    Food for thought.

  • virgil xenophon

    Living in Louisiana as I do, much is often made of the difficulties of lawyers from other states practicing in Louisiana because Louisiana is the only State in the Union which bases it’s laws upon the Napoleonic “Code Civil” system which is based at it’s core on statutory, rather than case law as is “supposedly” the case in the other states. And the public fiction being that the English case law tradition being a far better system. (Which, having lived under both regimes, I believe it to be so) But appropos of this discussion I remember a discussion years ago with a lawyer friend of mine that was at pains to point out that the rest of the nation was rapidly evolving towards the dominance of statute law–and that far from Louisiana being odd man out, it was actually the “leading-edge” trend-setter. LOL! How very true.

    In the same vein I remember yet another commentary on the centralizing and burdensome state of the law being made during a PBS discussion of Judicial Administration a few years back. Commenting on the unfortunate tendency to clog the Federal courts with cases that used to be handled at the State level, one female Judge from the 6th Circuit commented on this distressing tendency by saying: “Today there is not a side-walk zoning dispute in the smallest hamlet in the land that cannot be gotten into Federal Court if the lawyers involved are only inventive and energetic enough.”

    Finally, as I commented on “Rob’s Blog”
    about the profusion of confusing tax laws not only in the US but world-wide which are often at odds with one another, I remember an article on taxation in Newsweek magazine circa 1982 in which a Turkish diplomat or financier–can’t remember which–said:

    “You want to know how the world will come to an end? Someday everyone in the world will get stuck in a giant traffic jam. And to get them un-stuck a Government bureaucrat will come along and give everyone an official form to fill out–but they will be unable to understand it. And that’s the way the world will end.”

    Funny, but pathetically very possibly true.

  • Paul Marks

    Paul.

    There is a Paul Marks as well as a Paul (yourself). I think Alisa was pointing at me.

    However, this is the one post I have not looked at the comment threat of till now – I should have done and did not.

    The decline of the Byzantine Empire.

    Well people would get a very different story from me than from Dr Gabb.

    Sean Gabb would stess plague and military defeats.

    I would stress “Byzantine bureacracy” (and the high taxes that went with it) and religious intolerance.

    And Dr Gabb can read both Latin and Greek – and I can read neither.

    Still I can only really speak for my own side of things (let Dr Gabb speak if he wishes).

    To me the present situation in law does indeed look Late Roman/Byzantine.

    However, there are differences – some positive, some negative.

    We are more religiously tolerant than the Byzantines – so we are unlikely to have large numbers of “heretic” Christians either not fighting or even fighting on the Islamic side because they feel nothing could be worse than the persecution they already sufffer.

    But the Byzantines did not have a credit bubble financial system or fiat money – the monetary reform of Constantine (perhaps the only good thing he ever did – bar the end of the persecution of some Christians) and Valentian (as aspect of him I forgot to write about in my article on him – it was Valentian who insisted that all taxes in gold go straight to be melted down for gold coins “no pass go and collect ….” sorry) and Anastasius, “stuck” – and institutional lesson was learned.

    So the Byzantine Empire was famous for its dependable money – copied by the Arabs, and by the Republic of Venice (which sometimes claimed the legal fiction of being part of the Eastern not the Western Roman Empire – as a way of giving it some space from both Holy Roman Emperors and Popes, although Constantinople did not rule it).

    Remember the Republic of Venice lasted till 1797 – so we are not really in “ancient” times here.

    Also the “Welfare State” of the Romans was rather limited and only applied to the citizens of a few cities. Not the vast majority of the population – living in farmsteads, villages and small towns.

    Trying to apply a Welfare State to the great majority of the population of a nation of tens of millions of people is so insane that I do not know where to start.

  • Paul Marks

    If people want some background reading on why the modern situation is not what was traditionally understood as the “rule of law”…….

    For a libertarian approach see Bastiat’s “The Law” (which will also show you that libertarianism is not some recent invention – as Bastiat died in 1850).

    For a more “moderate” approach see F.A. Hayek’s “Constitution of Liberty” and his “Law, Legislation and Liberty”.

    For a specically British study see Chief Justice Hewart’s “The New Despotism” (1929).

    For recent British examples see the works of Christopher Booker and Richard North (from “The Mad Officials” onwards) they are especially good at how the European Union has given the officials boundless opportunities for interventions without any effective challenge being possible.

    Of course Brian’s old partner in crime (or rather partner in resisting the crimes of the state) could have given a lot more examples (and tied them in ways I can not), but there we go.