“Ignorance of the Law” Is a Great Excuse if the Law Is Incomprehensible
22nd April 2016
“Ignorance of the law is no excuse,” says an ancient legal nostrum.
The reason for it is simple enough: If ignorance could excuse any crime, then ignorance might excuse every crime. Rather than impose on the legal system the obligation to prove a defendant’s knowledge of the law — with the defendant’s incentive running in the opposite direction, toward ignorance of the law — the legal system assigns to itself no obligation in this regard. Upon which defendants find that they have an enormous incentive to know what the law is and to comport themselves accordingly.
Sounds great, but no — this is a rationalization made up after the fact. The real reason the ‘ancient legal nostrum’ came about is that it originated in a time where ‘the law’ was simply what every rational person would or wouldn’t do; the whole concept of ‘the common law’ is of a ‘law’ to which everyone is subject because it just made ‘common’ sense. Don’t kill or maim people, don’t rape, don’t burn down people’s houses, don’t steal their stuff — all of these were things that every sensible person would understand were ‘no-no’s. It was only later, when ‘law’ became a thing of legislatures rather than ordinary life that this self-serving statist ‘nostrum’ became popular. Indeed, that interpretation became so popular (especially with those charged with enforcing such ‘laws’) that people (including lawyers) are scarcely aware that there is any alternative.