It seems to be a common observation that, in a Common Law based country, “every person is presumed to know the law”.
What exactly does this mean in a legal sense?
Does it mean that everyone is presumed to have memorized the written text of all applicable statutes? Does it mean that not only is everyone presumed to know the text of all applicable statutes, they are also presumed to know of every relevant case that constitutes precedent in the jurisdiction? Does it mean that they are presumed to know all the statutes and all the case law, and also know what rules of interpretation the jurisdiction’s courts use? Does it mean that they are presumed to know exactly how a court would rule on something even before the court actually rules on it?
If I were to approach my State Bar association and ask to become an attorney, and when asked to prove my legal knowledge, claim, “Every person is presumed to know the law.”, I doubt they would accept that. But why? Does this legal principle only apply in specific circumstances?
Are there any legal systems where people are not presumed to know the law?
I’ve never heard this, not to say it isn’t out there. I have always understood that ignorance of the law is not an excuse. Meaning that you cannot say I didn’t know it was illegal to do something, and be exonerated of a crime.
On the other hand, most common law is basically common sense, is it not?
There’s a nuance here: Things that are malum in se, like murder, rape, assault, and mopery, are pretty much common sense, whereas things that are malum prohibitum, such as watering your lawn on a Wednesday, are only wrong because they’re against the law in a specific jurisdiction, and you’d only know that if you were told. Consequently, malum in se offenses generally have the worse penalties.
Common sense comes into play with all law, not just common law. That’s why we have judges and juries. The legal systems of the U.S. are adjudicative and deliberative, not mindlessly mechanical. Nevertheless, it’s interesting to see how often questions arise (especially here) that seem to view the legal system as though it were unthinkingly robotic, operating by an inflexible algorithm.
The nadir of this bankrupt philosophy is the idea that the law somehow works on ‘magic words’ or ‘cheat codes’, special phrases you can utter to give you rights well above what normal people have, such as the right to not pay income tax. A Pit thread on this idea.
Surely you’re not talking about the American legal system?
We have plenty of robotics in the system, including such things as mandatory sentencing, the three-strikes law, and most of all, an adversarial system that makes the careers and earnings of a large class of powerful people dependent not on finding justice, but on achieving the maximum rate of convictions.
It is, of course, ridiculous to assume anyone should know even a small fraction of the law. People should be expected to understand that it’s illegal to shoot your neighbor (damn!), but how can they know that it’s illegal to keep popcorn in your glove compartment unless it’s a leap year?
Yes, but most of that is in reaction to the leeway that judges have on the whole, and conviction rates are based only on the cases that actually go to trial.
I’m talking about the vast majority of legal proceedings, not the high-profile felonies that make the press. If a person violates some obscure law, for example, without even realizing it, he might somehow be brought to trial and found guilty, but the judge and or jury is going to take into consideration the circumstances when deciding on punishment. And prosecutors will ignore lessor offenses in order to get someone to testify against those committing larger ones. In other words, the people who work in the system are constantly making value judgments as part of the process, and often it’s a just a form of “common sense.”
Doesn’t a plea bargain (where the defendant pleads guilty to a lesser charge) get put in the win column for the prosecutor’s office/the D.A.?
And as far as the “leeway” judges have historically enjoyed–isn’t that virtually the only check on prosecutorial power? (Not that a person’s life can’t be destroyed by a criminal prosecution even if the judge does intervene somehow.) Why would there be a “reaction” to that?
This is totally ahistorical. Judges with leeway have historically functioned as arms of the prosecutor or as defenders of the power structure, essentially as licensed vigilantes.
Laws don’t come into existence in America because evil governments want to control our lives, as you seem to suggest. Laws appear mainly because the public revulsion against abuses by those with power finally overwhelms their power. These laws may be imperfect, they may be abused, they may be gotten around, but they are in place because the previous system was too horrible to be borne. Checks on judges’ power are a prime example.
No, stupid voters who elect and re-elect legislators who get a reputation of being “hard on crime”. But neither comment belongs in GQ, so I will stop here.
The prosecution is “checked” by the very system itself. It’s not like the DA just walks in the court room and decides who goes to prison. They have to make a case. And they don’t go to trial unless they have some degree of expectation that they can make a case. Yes, of course the DA wants a high prosecution rate, but it’s not like there’s a dearth of crime being committed, causing him/her to invent offenses and charge unlikely suspects.
I totally agree, however, that the system of plea bargaining (which does indeed count for conviction rates), and expedient public defenders, has created a whole system that is essentially unjust. But that’s a different issue.
Three-strikes (in California, at least) was indeed a reaction (primarily political, which made it all the worse), to a perception (stirred up for political reasons, mostly I believe), that judges were being too lenient. That too, is a different issue. What I’m talking about is the code itself. If you read PCs, you’ll see language like “punishable up to XXX years in prison,” or “up to a $XXXX fine.” That kind of language is deliberately there, I believe, so that the officers of the court system can take into consideration the circumstances of an offense, and that was there long before things like three-strikes, etc.
Really, all you have to do is spend a few mornings or afternoons in session (particularly in a drug court, which I had to do for some work I once did), and you’ll see all kinds of ways that the legal system makes allowances for the circumstances of an offense–things like diverting people to rehab, community service, etc., instead of locking them up. While it’s definitely true that way, way too many people are locked up for drug offenses–and it’s an unconscionable distortion of the judicial system in my opinion–many, many people are NOT locked up for drug offenses, because judges–and YES, EVEN prosecutors–can be flexible in the punishment they seek or mete out. There are times when a plea deal is not simply an abuse of prosecutorial power, but something that benefits everyone involved.
I wonder just how you measure the benefit of a plea bargain to the accused. In return for giving up some nonzero chance of being acquitted, he accepts a lesser sentence than the one he would presumably get if convicted. On a strict expected value basis, he should, for example, happily accept a deal of less than 5 years in prison if there is a 50% chance of his being convicted and getting 10 years in prison as a result. However, if any felony conviction would be devastating (as it might be, for example, to a first offender), then there would be a strong disincentive to accept the plea bargain.
I also wonder about the ethical implications of essentially blackmailing the accused out of his day in court. Telling him that he will get a harsher sentence if he insists on his right to a jury trial would seem to be a fundamental violation of his civil rights. And yes, I know that plea bargains are useful and beneficial, etc.; I just have an itchy feeling about their use. I really doubt anyone facing such a choice can make a truly informed decision, as even counsel for the defense can only offer a very rough estimate of how a trial would go and the likelihood of conviction. And of course, the prosecution will almost certainly overstate the chances of conviction if the case goes to trial, to strengthen their bargaining position.
I haven’t thought about it much but I would think if you committed your third felony that maybe you were hopeless and should be locked up and the key thrown away. Hell, I lived all my life without committing one…however I am definitely open to being persuaded.
As others have said, the statement that everyone is presumed to know the law is there to make the law enforceable, otherwise you’d have to prove that someone knew the law. It extends not just to statutes but to case law and the interpretation of the law, even if he interpretation comes after the facts of the case.
There is only one situation I can think of where one can plead ignorance of the law; when no one could really know what it is in that situation: http://en.wikipedia.org/wiki/Void_for_vagueness
Stupid politicians.