From Hammurabi to .GOV: How Laws Reach the Governed

Ignorance of the law is not a defense for breaking the law, as the old saying goes. But how exactly has the law been communicated to the people over time?

Lapham’s Quarterly has a neat way of laying it out in their Charts and Graphs section “Communications Department” entitled “How Laws Reach the Governed.”

And as for that ignorance of the law thing, even in the age of laws being published and publicly accessible on the internet and elsewhere, we still have plenty of room for further change:

But the rule that ignorance is no excuse does not work as well for crimes that are not inherently wrong. Today, there are thousands of crimes that are crimes only because they are prohibited by statute. For these types of crimes—known as “wrongs by prohibition,” or malum prohibitum—the principle that ignorance of the law is no excuse works only when a person knows what the statute requires or, at a minimum, could have discovered what the statute requires with a reasonable amount of effort.

Therein lies the problem. The criminal laws are not always easy to track down and not always easy to understand. In fact, many laws are nearly impossible to understand in all of their complexity, and the whole corpus of federal law is in fact impossible to know. There are so many crimes in the federal law books that no conscientious citizen (or even a conscientious legislator, law enforcement officer, lawyer, or judge) could possibly know what they require. This puts Americans at risk of conviction and imprisonment for the violation of laws that are impossible to find and impossible to know, effectively discarding the traditional protection that conviction requires culpability.

Some things, even with the law, never change.

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9 thoughts on “From Hammurabi to .GOV: How Laws Reach the Governed

  1. We really do need to bring back the concept of Mens Rea for anything but the most basic of violations (the things that are often the result of carelessness, but can still be harmful, like speeding, blowing a stop sign/light, etc.).

    If the penalty involves jail time and/or fines in excess of $1000 for a violation that caused no harm to another citizen, the state should have to demonstrate intent to violate the law, and if they can’t, they need to settle on a misdemeanor charge*.

    *which would serve as evidence of intent should they get caught again – once you got fined, the expectation is that you’d read up on the law

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    • There is quite a bit to like in a “your first one is free(almost)” system. It seems very reasonable at a national and even pretty workable at a state level. When it comes to more local jurisdictions, it seems like it will still catch the unaware folks more than it should and still be highly gameable by the knowledgeable. (e.g. is this somewhat similiar law in Decatur GA the same as Hillsboro OR the same or different?)

      Where I live I have at least 5 law/code bodies to worry about:
      US Federal
      Oregon State
      Portland Metro
      Washington County
      Hillsboro City

      If I want to travel the 30 minutes to go downtown for dinner, there is at least another half dozen I need to worry about. The mess is not really all that different from today.

      Environmental laws strike me as an area where “one freebie” could become quite troublesome. Dumping or mishandling of waste products can get real bad real fast.

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      • I had a caveat in there, in that we are only really talking about violations that cause no harm to another citizen. One could argue that pollution causes harm.

        We could also argue that part of getting your permits to handle or produce toxic substances involves becoming and staying aware of the relevant laws. E.G. The guy dumping used motor oil from the oil change he did in his garage should get the warning fine. JiffyLube had to get a permit to operate an oil change business, and thus the awareness of the law is implied through the act of getting a permit.

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        • If we take all laws prohibiting harm to another citizen off the table, we are not left with much, if anything at all. Even speeding or seat-belt laws have the potential to cause harm, like pollution. Jaywalking would probably qualify, but those level of laws are hardly enforced at all. Arguably, if there is no harm or potential for harm there should be no law.

          I would agree that getting a permit would raise the implied knowledge and standard of care. But, failure to get the permit because you didn’t know you needed one for substance X? We are back to “honest mistake” and “one free pass”.

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          • I meant that if the violation caused no harm, it’s just a ticket unless you can show intent. E.G. Pulling a firearm on a person and shooting at them (but missing) caused no harm, but one can show intent to cause harm in most cases. On the flip side, we have fun things like gun laws, where a person may not realize that a given weapon, or variant, is illegal in that state, thus the state would have to show an intent to violate the law, rather than simple ignorance of it.

            In short, laws that are malum prohibitum would usually require some showing of intent, or showing that the person had a specific responsibility to be aware of the laws. Laws that are malum in se would largely have intent assumed. I could probably think up some exceptions if pressed.

            As to your second point, it depends on how far you extend that standard of care, and what is involved in being able to be in a position to violate such a law. E.G. If I need give my ID in order to buy pseudoephedrine, then there is a clear restriction on the compound, so I would be hard pressed to claim ignorance if I was busted for making meth with it in my garage. However, if I combine household cleaners and create a chlorine gas cloud, the DA would have to show that I had an intent to cause harm if he was going to charge me with using a chemical weapon.

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  2. The lion’s share of administrative law falls into the category of malum prohibitum.
    Whether I keep the 9″ bass or if it has to be 10″ to keep may well depend on the lake.
    The prudent fisher knows better.

    Too often I see malum prohibitum used as an unjust justification.
    This amounts to an unsubtle insinuation that persons abiding by the law are simplistic rubes.

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