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Ignorance of the Law is No Excuse

An excerpt from Nathaniel Burney’s The Illustrated Guide to Criminal Law:

ignorance-of-the-law

Via TheCriminalLawyer tumblr, hat tip to Ron Coleman.

UPDATE: What appeared at the linked site to be one incredibly long cartoon mural was in actuality a long series of cartoons on the same theme. The earlier ones in the thread, not reproduced in my posting, are actually better examples than the one that did post and which, ironically, I hadn’t even read before copying the cartoon for the post. Rather than try to replicate Burney’s entire posting, I’ll commend it to you and reproduce the example that caught my eye below:

ignorance-turtles

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. PD Shaw says:

    Is it an early sign of going Galt, to find the assumptions behind the phrase “they don’t have to let you play their game” troubling? The right to sell widgets is derived from the government?

    Like or Dislike: Thumb up 1 Thumb down 0

  2. JKB says:

    Ignorance of the law is no excuse unless you are in law enforcement. Cops and prosecutors claim ignorance all the time and the courts have carved out special immunities based on nothing but the judicial fiat.

    Like or Dislike: Thumb up 5 Thumb down 1

  3. rudderpedals says:

    Polluters don’t get caught or go to jail. Too bad about the widget guy though. He should take the hint and get in on the waste disposal business.

    Like or Dislike: Thumb up 1 Thumb down 0

  4. C. Clavin says:

    @ rudderpedals…
    Only “made-guys” get in on the waste disposal business.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Rob in CT says:

    The polluter one did crack me up. Polluters don’t go to jail. They reach settlements with EPA or some other regulatory agency, contribute to cleanup, etc… if that. The process we (as a society) have developed is a mixture of regulation, legislation and litigation.

    But people going to jail for dumping toxic waste in drinking water? Rare. Very rare.

    “they don’t have to let you play their game” troubling? The right to sell widgets is derived from the government?

    PD,

    Depends on what exactly he means by “play their game.” Just going off the little graphic above, I happen to agree with you. Permitting can be a useless (to society) barrier to entry, if the permit is just to, say, be a hairdresser or somesuch.

    If we expand it a little bit and consider other types of permits (e.g., a permit that allows you to discharge X amount of waste chemical Y into the sewer system per month, but carries with it certain reporting requirements and such), then I’m fine with “play their game.” At that point, you’re not be permitted just to be in business. You’re being permitted to handle and dispose of certain dangerous things.

    Like or Dislike: Thumb up 1 Thumb down 0

  6. Rafer Janders says:

    @PD Shaw:

    The right to sell widgets is derived from the government?

    No. But the right to be able to call the police to help you if someone knocks you over the head and steals your widgets, or pays you with counterfeit money, does require the government. Similarly, the right to sue someone who promises to buy your widgets and then reneges on payment after taking delivery also requires the government. And, of course, you want to get paid for your widgets with cash or cash equivalents, and those don’t exist without a government to back them.

    So no, the right to sell widgets is not derived from the government. The right to sell them within a regulatory framework backed by the government’s police power, commercial law, and the banking and court system, however, is.

    Like or Dislike: Thumb up 9 Thumb down 0

  7. OzarkHillbilly says:

    @PD Shaw:

    The right to sell widgets is derived from the government?

    No, the right to sell widgets is derived from the people and their expressed will in the form of gov’t. For instance, my right to do construction work is limited by a host of rules and regulations in the form of OSHA and building codes. I don’t like it? I can build only in places where those things are not enforced (Washington Co, MO for instance). But chances are people with money don’t live in those places (because the majority of the houses are real dumps) so the chances are I won’t make a whole lot of money but hey….

    Freedom.

    Like or Dislike: Thumb up 3 Thumb down 0

  8. Tsar Nicholas says:

    What’s surreal about that cartoon is there’s so much truth to it. Literally as we speak we’re fighting with a local planning commission to get a conditional use permit to lease out space for a commercial fleet vehicle repair facility, which is quite daft considering that that exact space previously had been used for the same purpose continuously since, um, 1974. Sigh.

    Regarding the facile notion in the thread of polluters not going to jail, that’s quite rich, coming from a demographic that blindly gave us the likes of Jon Corzine. It’s also naive and ignorant. Polluters certainly don’t often go to jail, but they very often are hit up with monumental civil, criminal and quasi-criminal fines and penalties. They also get prosecuted criminally, the infamous W.R. Grace & Co. trial being the most recent noteworthy example. That there are not often criminal convictions tends to prove what some of us for decades have said: We could cut the budgets of the EPA and its state counterparts in half and yet not negatively affect air and water quality standards to any material degrees.

    In any event, one thing that’s always amazed me about the chattering classes is that so much of what’s written and said is in the abstract — for the chattering classes — but they’re as real as tons of bricks for so many millions of practicioners and people. We can sit around talking “hypothetically” all day about business regulations, but there’s nothing hypothetical when for example a trucking company simply cannot afford to stay in business, due specifically to enviromental retrofit mandates via regulatory fiat, and then they shut their doors and a dozen or more people lose their jobs. The lack of paychecks and the job angst among those fired workers is not simply a classroom or Internet debate topic. For those people it’s a grim reality. And ultimately government regulation will be the death of our entire economy.

    Like or Dislike: Thumb up 0 Thumb down 4

  9. Rafer Janders says:

    @PD Shaw:

    This is one reason why there are drug gangs but not, say, wine gangs. Wine isn’t illegal, and if I want to sell wine I’m able to avail myself of the regulatory, commercial, and police protections of the state. I can use the banking system for credit, I can sue people, I can get permits, I can incorporate, I can openly load my goods onto railroads and planes and ships, etc. etc.

    Cocaine, however, is illegal, and if I want to sell cocaine, I can’t do any of those things. Which means that if I want to protect myself and my product, I can only do it with guns and the threat of violence. I have to operate in secret. If someone screws me over, I have no legal protection. I don’t need 50 heavily armed gunmen to protect my vineyard the way that I do to protect my coca crop.

    Same with widgets. If you want to participate in the legitimate economy, you have to recognize that it only exists because we’ve constituted a government to protect it.

    Like or Dislike: Thumb up 9 Thumb down 0

  10. matt bernius says:

    @Rafer Janders:

    But the right to be able to call the police to help you if someone knocks you over the head and steals your widgets, or pays you with counterfeit money, does require the government.

    Ironically, however, the right to build your product around a services — such as a call into the police — does not require regulation. For example, the home security alarm industry has made huge amounts of money piggybacking on a tax-payer funded service without having to pay for things like emergency services responding to false alarms (where fees are incurred, its usually placed on the home owner).

    Like or Dislike: Thumb up 2 Thumb down 1

  11. Moosebreath says:

    “Ignorance of the Law is No Excuse”

    That’s what my boss said at my last review.

    I’ll be here all week.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. PD Shaw says:

    @OzarkHillbilly: To me there is a question of which comes first. I have a right to sell the product of my labor. That right is subject to the government passing laws that authorize a government agency to pass specific types of regulations in the common good. To me that means my right to sell widgets does not derive from government, it is merely subject to government restrictions.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. swbarnes2 says:

    @Rob in CT:

    ” Permitting can be a useless (to society) barrier to entry, if the permit is just to, say, be a hairdresser or somesuch.”

    Hairdressesrs handle hazardous chemicals, and since they operate sharp objects on people’s bodies, biohazards too.

    Aren’t you the same guy who thought it was utterly stupid for the government to regulate children handling toxic pesticides?

    Like or Dislike: Thumb up 3 Thumb down 0

  14. anjin-san says:

    @ Rob in CT

    The polluter one did crack me up. Polluters don’t go to jail. They reach settlements with EPA or some other regulatory agency, contribute to cleanup, etc… if that.

    The Chevron refinery in Richmond allowable emissions standards almost every day of the year. The fine is utterly trivial to them. All the people that live nearby are poor, so no one really gives a crap. They take the money out of petty cash and call it a day.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. Rob in CT says:

    @swbarnes2:

    Perhaps the hairdresser example was a poor choice on my part. I’ll withdraw it.

    And no, I have no idea what you’re talking about when you say

    Aren’t you the same guy who thought it was utterly stupid for the government to regulate children handling toxic pesticides?

    I have no memory of that, and it sure doesn’t sound like me. I think you’ve got the wrong guy.

    The Chevron refinery in Richmond allowable emissions standards almost every day of the year. The fine is utterly trivial to them. All the people that live nearby are poor, so no one really gives a crap. They take the money out of petty cash and call it a day.

    Yeah, I can’t say I’m surprised. Someday, when they go to shut that refinery down, they will probably have to pay for some cleanup work, provided Chevron is still in business (the big boys typically are – it’s the heroic “small businesses” that are often gone like a fart in the wind when it’s time to clean up their messes). I tend to be an “ounce of prevention is worth a pound of cure” kind of guy, but I’m sure companies like Chevron have crunched the numbers and found that within our current regulatory framework and tort law, that isn’t so for them.

    Like or Dislike: Thumb up 4 Thumb down 0

  16. grumpy realist says:

    If you want to look at a place that operates without regulations, look at China. So what do you get? Lead-painted toys, poisonous milk, poisonous pet food, human hair getting made into soy sauce, explosive electronic products….

    What regulations do is provide an instant level of trust for a consumer. (That’s aside from the regulations which have been put into place by agency capture and the guild of regulated companies wanting to increase the barrier to entry against new competitors.) Regulations also are helpful to companies, because if you can show that you’ve satisfied the regulations, you have a very good defense against a lot of torts.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. David D. from Philly says:

    About 1 year prison time for unwitting violations of the Lacey Act, I call shenanigans. From 16 USC § 3373(d)(2):

    Any person who knowingly engages in conduct prohibited by any provision of this chapter … and in the exercise of due care should know that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation shall be fined not more than $10,000, or imprisoned for not more than one year, or both.

    So the standard is not “you go to jail for failing to know the law of every state or country”, it’s “you go to jail if you knew or should have known what you were doing was illegal”. So in the cartooned example, if he truly “couldn’t have known” that one of his suppliers was breaking the law, then he has a complete defense to the Lacey Act charge.

    Of course, let’s not let accuracy get in the way of good ol’ libertarian outrage about a law passed 113 years ago.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. grumpy realist says:

    Oh, and if you don’t like that “Ignorance of the Law is No Excuse”, you’re basically going against all of Western law back to the Romans, who were the first to propound it. (Ignorantia legis non excusat.) If you think about it, it makes sense–otherwise the commission of any crime could be defended against by arguing lack of knowledge of said action being a crime.

    Hence: ignorentiem lex neminem excusat.

    Like or Dislike: Thumb up 2 Thumb down 0

  19. James Joyner says:

    @grumpy realist: Of course. But Burney’s point is that the principle made sense when the things that could land you in jail were obviously knowable as illegal. If 10 things are illegal, it’s reasonable to expect people to know they’re illegal. Maybe 100 things. But what it 100,000 things are illegal? And 95,000 of them are technical violations of administrative regulations?

    Like or Dislike: Thumb up 0 Thumb down 0

  20. grumpy realist says:

    @James Joyner: Exactly, which is why the US is getting less picky about administrative stuff and technical violations. What I’m point out is that you are going against the entire history of Western law, so you have to expect it to take time. Law moves VERY slowly, particularly in common law countries with our dependance on case law.

    However, the logic still stands–if ignorance of a rule is a sufficient defense, you’ll see a lot of people claiming ignorance. In fact, what this would mean is that you would deliberately NOT look up rules or check anything. “Gee, I didn’t notice that the speed limit was 20 in this area” would be sufficient to excuse anyone hot-rodding it through a school zone. Do we really want to encourage this?

    You could go to “what a reasonable person would know”, but then you get all sorts of arguments about what a reasonable person would be expected to know. Anyone working in a particular field would probably be expected to know the regulations affecting his field….and doesn’t this lead right back to the present situation?

    Like or Dislike: Thumb up 1 Thumb down 0

  21. swbarnes2 says:

    @Rob in CT:

    I have no memory of that, and it sure doesn’t sound like me. I think you’ve got the wrong guy.

    Nicotine is a toxic pesticide, right? Nicotine is absorbed through the skin, right? There was a discussion about a farm bill that would limit children’s exposure to raw tobacco plants, remember? You thought it was mockable, remember?

    Do you see a pattern here, where you say regulation is dumb, and the people proposing it are stupid, when two minutes of thought is all it takes to realize that maybe regulation is a good idea after all, because you personally seem to be crappy at assessing the hazards of occupations you don’t know well?

    I’m just saying, next time you hear about regulation that you don’t understand, maybe rather than rail at how stupid it is, you should stop, and realize that you don’t know everything, and that maybe, the government people who want to implement rules aren’t just “in love with government” but are trying to protect people from real threats that you just are ignorant of.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. David D. from Philly says:

    @James Joyner:

    And 95,000 of them are technical violations of administrative regulations?

    [citation needed]

    Like or Dislike: Thumb up 0 Thumb down 0