Law in Contemporary Society

Following All of the Rules

-- By JessicaHallett - 25 Feb 2010

Joseph Stack

In a letter written before his death, Joe Stack wrote of the tax activities that led to run-ins with the IRS: “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done. “ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two ‘interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet is punished for breaking it, warrants a look at what the law expects and assumes about our knowledge.

Yes, probably, but this isn't that situation. Mr Stack was one of innumerable purchasers of a snake-oil product: the claim that the US income tax law contains its own nullification. Mr Stack was told that anyone can become tax exempt religious organization, sheltering all income from taxation on that basis. As I mentioned when we discussed this in class, Mr Stack was more susceptible to this scam because—like many other people with engineering educations—he believed that a literal reading of statutory material, plus logic but minus context, will allow a layman to understand "the law."

This belief was not enough to result in the costs he details. Unwavering persistence in the belief, despite increasing, graduated efforts by the IRS to awaken him to the obvious fact that the income tax law cannot be so flagrantly evaded, and is not built in a flimsy fashion out of mere language and logic, produced his suffering. If Mr Stack had received, and heeded, sensible legal advice, he could have solved his problems peacefully and at far lower cost. The IRS is not a punitive service: its job is to gather the taxes legally due, but any taxpayer not engaged in deliberate attempts to evade tax payment—willing to file returns and to enter into payment arrangements for taxes due—will prevent the sort of cataclysm that happened to Stack.

Knowledge of the Law: Doctrinal Clash

Two Doctrines

It is useful to consider two doctrines to understand how the current system contains some irreconcilable tensions. The first is that one cannot be punished for something that is not against the law. The second is that ignorance of the law is no excuse. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. The two come into conflict, however, when people are punished for reliance on the very law they are expected to know.

The fiction of knowledge, like all fictions, "contains tension." Obviously there is always a contradiction between a fictional assertion and reality, or the fiction would be unnecessary. If factual ignorance of law were an acceptable defense, law enforcement in general would become impossible, as every enforcement action would either have to begin with proof of knowledge or a "first bite is free" theory that no one could be held liable for violation of law until put on specific personal notice.

Of course, what the law really does isn't to assume knowledge. The fiction is functionally equivalent to a rule requiring every person to inform himself sufficiently to engage in those activities in which he routinely or profitably engages. This can be enforced through licensure. In order to drive, or sell insurance, or practice "cosmetology," the state requires, among other things, that one prove a sufficient knowledge of the applicable rules to ensure accountability for compliance. Or it can be posed as a general obligation. The presence of an obligation to inform is not in conflict at all, logically or socially, with liability for misfeasance.

In the area of income taxation, the state does not even hold parties responsible for self-education to insure compliance. The complexity of the subject makes the imposition of such a burden unreasonable, and the result is a rule entitling a party to escape penalties for non-compliant behavior if they rely on the services of specialists in doing what they do. If Mr Stack had secured a legal opinion stating that his filings were compliant with the Code, although the Service could have forced him to pay taxes due, it could not have prosecuted him for what he filed, and he would have had an action against his lawyers for any penalties the advice imposed on him. Even the signature of a paid tax preparer on his returns would have provided insulation against anything other than the original tax liabilities.

Mr Stack's obligation is to comply with the law that exists. Not the law he personally believes exists, or that some other non-responsible party has asserted exists. In this respect, his obligation is precisely the same as every other person bound by law of any kind. He was in no way punished for "reliance on the very law he was supposed to know." He suffered the consequences of insisting that the law he was supposed to obey was one he made up based on legal materials he did not understand.

An Irreconcilable Tension

Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least according to one “interpretation”). In such a case, the only way a truly informed person can be expected to conform in the “correct” standard must be in knowing that his actions were somehow “wrong”. There are also instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known.

This is wrong, fundamentally, for the reasons I just stated.

Inconsistent Decisions

Some cases shed light on this tension between an obligation to know the law and reliance on the law, and there are inconsistencies in how the law expects us to act. In Bryan v. United States, the defendant had to know that his conduct was unlawful, but not the existence of the statute with which he was charged, to be convicted. Evidence suggested that he knew his behavior was unlawful (he shaved off guns’ serial numbers, for instance), and it was in acting with an “evil-meaning mind” that he was found guilty. In Liparota v United States the defendant had to know the existence and meaning of the law his act violated. In Lambert v. California the court held that the defendant had to have known of her duty to register as a felon to be convicted for failure to do so; State v. Bryant, on the other hand, held that the defendant should have inquired into the law, and as such was convicted. United States v. Dauray and Keeler v. Superior Court both found against construing laws such that they would lead to convictions, where it would not be “fair notice” to do so. In contrast, Rogers v. Tennessee held that despite defendant’s actions being subject to a law that would preclude a murder charge, he should have known that the law was changing in other jurisdictions, and thus should have expected his actions to be unlawful.

This is a quick and to some extent reliable summary of cases to be found in a criminal law casebook, but it doesn't make the necessary distinctions, between, for example, the authoritative construction of a statute to include a scienter requirement in the definition of an offense, and the determination that a statute is void for vagueness. In the first case, the issue is whether the legislature intends that only parties who have actual knowledge of predicate facts can be liable (must you actually know that the feather you are selling comes from a bald eagle?) In the second, the issue is instead whether—by a standard of judgment having nothing to do with any individual's actual mental states—it would be adequately evident to a trained reader what conduct the law actually forbids. Moreover, these are all issues of criminal liability, an area in which the rules confining the state are particularly restrictive, and in which individual cases near any boundary should be decided in favor of the defendant. That in itself would ensure "inconsistent" decisions from the point of view of a casebook, a law professor of the usual unimaginative stamp, or a professionally unimaginative collection of law professors, such as the American Law Institute. Given, however, that courts do not actually resolve all factually close cases in favor of the defendant, "inconsistency" is even more an attribute of the appellate record on matters of criminal doctrine. So?

The Legal Fiction of Knowledge of the Law: Conclusions

What can be drawn from these inconsistent decisions? The law holds us to a double standard in which sometimes we are expected to know the law, and other times are punished for reliance.

That's the original assertion repeated, but the argument advanced didn't actually demonstrate it (unless "sometimes" means nothing stronger than "cases are sometimes decided wrongly"). And some of the arguments on which you relied are themselves legally wrong.

The purpose of a theory of presumed knowledge might be to encourage people to actually know and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal.

Why would that not be also the aim? And would the coincidence of the aim and the effect not be an instance of entire legal success.

In doing so, people rely on their own sense of right and wrong. In this way, the law relies on people filling in the gap of knowledge with some form of morality or a sense of what “should” or “probably” is illegal (which can only come from some inner conscience, if not external rules), or assumes that there are circumstances under which it is universally true that a person would be inclined to investigate the law further. The problem there is that this assumes some universal moral sense, or universal code of ethics that is untenable.

This argument concludes wrongly because it begins with a fallacious premise that was not identified when you edited the essay. A legal system such as the one being described does not rely on gaps being filled by the moral sense. The most likely thing for human animals, who are primates practicing imitative learning, is the imitation of what other people do. The obligation to inform becomes an implicit reinforcement of the existing tendency to imitate. This is how the law achieves spontaneous compliance: in states where it is highly visible that other people cheat on their taxes, such as Italy, voluntary compliance is notoriously low. In states, like the US, where the April 15th ritual is made extremely public and the filing process is seen to be "what everybody does," voluntary spontaneous compliance is extraordinarily high. Voluntary willingness to comply with copyright rules concerning entertainment bitstreams has dropped near zero in the younger segment of the world's populations, now that young people realize that other young people no longer comply. Entertainment industry efforts rest on "educating" children into the belief that the rules are a good idea, while maintaining enough pressure through harsh treatment of a tiny number of non-compliant persons to discourage large-scale imitation. Merely stating the strategy is enough to explain why it cannot work, and why any business remaining dependent on its success is doomed.

So the premise of the argument above is faulty: the law assumes that gaps in knowledge are filled not from a universal moral sense (which, whatever its qualities, would be a poor guide in answering such questions as whether it is wrong to drive 58 in a 55 MPH zone, or whether it is wrong not to post calorie counts on a luxury restaurant menu), but by imitation, leading to conformity, leading to spontaneous compliance. This requires no dependence on untenable assumptions, and is in accord with a view of human behavior justified by consilient argument across disciplines from biology through social psychology to sociology and comparative literature.

As a result, there is punishment when a person acted seemingly lawfully, and exculpation at times when a person behaved in ways that were clearly beyond the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. This combination of legal fictions, inconsistent requirements, and the substitution of law with morality in cases where lack of knowledge leaves a gap to be filled combine for an unclear system. If there is to be no punishment without law, the law must speak clearly: the legal fictions need to be eliminated, and a clear, practical development of what we are expected to know and are entitled to rely on needs to emerge. If, like Mr. Stack, we follow all of the rules, and still get burned, the law sets forth an impossible double standard.

Because the two parts of the argument on which it relies are each unestablished, this conclusion falls too. What the revision has to do is to re-edit the argument to put in place something that relies on solid premises. If the resulting essay is about Stack, it needs to lose the "reliance" defense aspect. If the essay turns out to be about the social roots of compliance, Stack might be one illustration, but I don't think I see how he could be the only one, and some of the arguments here would need to be reconsidered entirely.


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r7 - 13 Jan 2012 - 23:14:16 - IanSullivan
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