Fleshed-out Outline

Following All of the Rules

-- By JessicaHallett - 25 Feb 2010

Joseph Stack

In a letter written shortly 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 apparent 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 the what the law expects and assumes about knowledge of it, and what people actually know in reality.

Knowledge of the Law: Doctrinal Clash

Two Doctrines

It is useful to consider two doctrines to understand that a presumed knowledge of the law is both a fiction and an impractical, illogical requirement. The first is nulla poena sine lege, the principle that one cannot be punished for something that is not against the law. Secondly, the law generally does not provide an excuse for ignorance of the law: ignorantia legis neminem excusat. 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.

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”). This means that a person cannot rely on the body of the law and perform in accordance with it. In fact, the only way a truly-informed person can be expected to conform in the correct way 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. Finally, there are times when a person can be convicted for purposefully getting around the law; again, this would inject a sense of morality (not the law) as a guide to how to behave.

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 US v Liparota the defendant had to know the existence and meaning of the law his act violated. In Lambert 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; Bryant, on the other hand, held that the defendant should have inquired into the law, and as such was convicted notwithstanding his ignorance of it. Dauray and Keeler both found against construing laws such that they would lead to convictions, where it would not be “fair notice” to do so. In stark contrast, Rogers 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.

The Legal Fiction of Knowledge of the Law: Conclusions

What can be drawn from these inconsistent decisions? Sometimes the law expects that we know it, and sometimes it punishes us for reliance. In theory, the purpose of presumed knowledge of the law 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. In doing so, without concrete knowledge of the law, people rely on their own sense of right and wrong. As a result, people remain largely ignorant of the law: this results in punishment when a person acted seemingly innocently, and exculpation at times when a person behaved in ways that were clearly not within 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. As a result, the law is applied inconsistently, and relies on people filling it in the gap with some form of morality, or a sense of what “should” be or “probably” is illegal. The problem there is that this assumes some universal mral sense, or universal code of ethics that is equally untenable. The law should not trust a sense of morality for it to accomplish its practical purposes, and it isn’t fair to convict on the basis of different ideas of right and wrong. A system in which we are assumed to know the law, can nonetheless be convicted for following it to the letter, and where cases instead turn on moral calculations (he “should have known” what he was doing was wrong, or “knew it was illegal” in general, which a person would only really know based on some sense of morality) is not a consistent system.

If there can be no punishment without law, the law must speak clearly: the first step is in eliminating legal fictions and accepting that the law is not widely known.

We are expected to “know” the law, and cannot be punished without law: but where the law on what we are expected to know is so inconsistent and applied without an even hand, it is an impossible expectation.

What fills the gap when we aren't ACTUALLY supposed to know the law? A moral sense; some idea of universal ethics that we should "know" and therefore act accordingly when something doesn't "seem" right. ie when we know it reeks of something illegal, even if we don't know the law. Is it fair for the law to trust a sense of morality, and rely on that and convict on that basis?

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