Law really based on common sense

Ignorentiam legis neminem excusat. That's Latin for "ignorance of the law excuses no one." The idea is that lawbreakers cannot defend themselves simply by saying, "I didn't know arson was illegal," for instance.

On the face of it, this principle seems a good idea. If such a defense were valid, then anyone could break each law once for free. The ignorentiam principle seems to insist that individuals take responsibility for their own behavior, no bad thing. After all, if a man honestly does not know that rape or assault or kidnapping is against the law, then he absolutely should not be on the streets.

But that sort of reasoning assumes several things. One trouble spot is the distinction between law and morality. People really ought to know that rape, assault, and kidnapping are morally wrong first, and then deduce that they are probably therefore illegal. Another, equally important, is that the ignorentiam principle assumes that every reasonable citizen can know or deduce all laws that pertain to his activities. In other words, it assumes that the law is clear to every reasonable adult.

To know the law, though, takes one of two things. Either you look it up (in a book or through an expert), or you figure it out by reason and common sense. The latter method is probably the more frequent. For instance, how many people have actually read the statutes to see whether it's OK to sing "Louie, Louie" through a megaphone outside a hospital at 3 a.m.? Common sense should tell you it isn't. For more specialized things (like how to get an ASCAP license to record an album), experts may be needed.

Even for hiring an expert or hauling out the law books, though, the law still assumes that a reasonable person should know when to ask for expert help in the first place, and that the experts themselves can know precisely what is legal and what is not. Two problems with this occur when the law is so complex that even the experts do not know, and so illogical that reason is no help.

In these cases, it is unjust to prosecute someone for breaking a law, since there is no way he can know what the law says. Otherwise, lawmakers can become nearly all-powerful by passing so many senseless laws that just about everyone will break one sooner or later. Lawyers and government agencies can then sue and prosecute at will. If ignorance is no excuse, then citizens will be helpless.

The frightening fact is that I don't need to make up examples of this. Federal laws and rules now total about 100 million words. The Federal Register, which lists each year's proposed and enacted new regulations, was over 68,000 pages in 1993. (Philip K. Howard, The Death of Common Sense ). American for Tax Reform mentions that "government regulations on the sale of cabbage total 26,911 words." The tax code, some 9,700 pages, is so enormously complex that in 1988, when Money magazine asked 50 tax preparers to complete a fictitious tax return for a couple earning $100,000, they received 50 different tax bills. In 1989 they tried it again with the same results. (New York Times Magazine , 9/3/89.)

Besides the merely incomprehensible, unreasonable and vague laws also abound. An EEOC official, referring to the Americans with Disabilities Act, stated, "Accommodating a disabled person is very individualized. We can't tell employers, 'You must do X in this particular situation and then you'll have complied.' They have to take their best shot at it." (American Spectator , Sept. 1995). The 1989 federal definition of "wetland" included land that was dry 350 days a year, or even land with no water on the surface at all. An Army Corps of Engineers official declared that "for regulatory purposes, a wetland is whatever we decide it is. [The definition] has changed virtually every year for the last decade" (Heritage Foundation).

The dictatorial powers such laws grant are as real as the laws themselves. For scores of examples of financial ruin and innocent lives wrecked, read Heritage Foundation's Strangled by Red Tape. If America is truly to be a democracy, our laws must be direct, straightforward, and few in number, readily apparent to every citizen through reason and basic moral values. (And yes, this does presuppose a common definition of reason and of morals other key issues.) In the meantime, we must realize that if the law is unreasonable, then ignorance of the law should be a valid defense. Otherwise, we'd all better start studying for those LSATs.

John Keisling's favorite movie is the romance/suspense/comedy/thriller While You Were Sleeping With The Enemy. He is a math Ph.D. candidate whose column appears Wednesdays.

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