Ignorantia juris non excusat and the internet

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drunken
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Ignorantia juris non excusat and the internet

Postby drunken » Sun Dec 27, 2009 12:30 am UTC

Ignorantia juris non excusat http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat is the concept that ignorance of the law is not an defence for breaking it. With this concept in every legal system comes a provision that the governing body provide access to the law so that people aren't forced to be ignorant of it.

My main question here is does anyone know what the wording of this obligation to provide access is?

In my country, New Zealand, there is a central library of some kind that has copies of all statutory law and is theoretically accessible to the public. I assume this fulfills the governments obligations under law to provide access but I would like to argue that it shouldn't. Traveling to another city and reading through thousands of pages of hard copy documents does not seem all that accessible to me. In New Zealand the government also has an obligation to provide free education, but it would be laughable if their obligation to free education were fulfilled simply by having a giant room in wellington with a single copy of each required textbook in it.

My follow up question then is given that the internet now exists, should or can the definition of the governments obligations of accessibility be extended to require them to put the information on the internet without actually rewording the piece of legislation dealing with this obligaiton?

The idea occurs to me that by way of protest (not as a way to get away with crimes or as a successful legal defence) that anyone who is being tried for a crime should claim that the government is in breach of it's Ignorantia juris non excusat obligations and therefore until the problem is rectified (ie all statutory law in your country is made available on the internet) that ignorance is a valid defence.

My main goal here is to make the law more accessible, not to allow ignorance as a defence. I think it is hugely important that the law is universally accessible and I am dumbfounded as to how the internet can have existed this long without this simple measure being implemented.
***This post is my own opinion and no claim is being made that it is in any way scientific nor intended to be construed as such by any reader***

stevey_frac
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Re: Ignorantia juris non excusat and the internet

Postby stevey_frac » Sun Dec 27, 2009 2:07 am UTC

I believe there is a flaw in your argument. It would be laughable indeed if education were provided by a single set of text books in a central location. However, as harmless as it would be to provide all those documents on the internet (I believe Canada does do this) that really doesn't help most people. Have you ever read a law in the original? It is nearly indecipherable. Written in a form of English that is nearly another language. Telling people they must learn of the law in this manner would be like telling gr. 1 students they must learn math by reading Newton's Principia.

People know enough of the law for the capacity they operate in. Common people know which side of the road to walk on, and not to j-walk. Engineers know about design liability. Doctors know what laws apply to them. Farmers know they aren't allowed to dump fertilizer into the stream.

And if you want to know of the law, there is probably someone you could ask. For instance, a child can ask his/her parents. An adult a police officer, lawyer friend, or someone in a field related to their question.

I'm not arguing against making those documents more public. I would just question if legally and practically there is a difference between having indecipherable documents in a library across the country, or online.
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hidden.ips
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Re: Ignorantia juris non excusat and the internet

Postby hidden.ips » Sun Dec 27, 2009 5:18 am UTC

It would be a very lengthy and very expensive undertaking to make the laws available over the internet.

Furthermore, I read this on the wiki page you posted:

In addition, there were, particularly in the days before satellite communication and cellular phones, persons who could genuinely be ignorant of the law due to distance or isolation. For example, in a case in British Columbia, a pair of hunters were acquitted of game offenses where the law was changed during the period they were in the wilderness hunting.


I would imagine that if you could prove beyond reasonable doubt that the defendent did not have access to the laws that they could be acquitted. Granted, this would be a very difficult if not impossible argument to sell in this day and age.

I agree with stevey_frac's sentiments. The average person would not need to seek legal guidance to go about their day in a law abiding way. If you were going to, say, start your own business, then you would most likely seek the advice of a lawyer instead of attempting to troll through legal labriynths describing god knows what.

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Re: Ignorantia juris non excusat and the internet

Postby Azrael » Sun Dec 27, 2009 4:30 pm UTC

hidden.ips wrote:It would be a very lengthy and very expensive undertaking to make the laws available over the internet.

The argument breaks down significantly when countries have already posted their general code -- even my state does as well.

drunken wrote:... and I am dumbfounded as to how the internet can have existed this long without this simple measure being implemented.
A whopping 10 years for all practical matters, or maybe as much as 15 if you're being really, really generous? Your dumbfounded threshold is far, far too low.

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Re: Ignorantia juris non excusat and the internet

Postby drunken » Wed Dec 30, 2009 12:08 am UTC

I have been guilty once again of that most common of internet sins, assuming that everybody else has the same views/ideas/understanding of an issue as myself. For this reason I put forward no arguments as to why universal publication of statutes is a good idea. I will rectify this now.

Firstly, a minor matter,
hidden.ips wrote:It would be a very lengthy and very expensive undertaking to make the laws available over the internet.

In terms of governement expenditure, not really. It would be a few thousand hours at secretarial wages. A minor expense when compared to other bureaucratic budgets, especially if there is a real advantage to be gained.

Which brings me to the second matter.
stevey_frac wrote:However, as harmless as it would be to provide all those documents on the internet (I believe Canada does do this) that really doesn't help most people.

This is a much more complicated issue. In direct terms I agree with this, most people. But lets say that 5% of people would actually bother reading the statutes in some depth, not all of them, but spending some significant length of time. I would be one of these people, mostly from curiosity, both of my own rights and obligations, and of political theory and practise in general. I further believe that there would be other people, say 20% (the numbers themselves are not important for my subsequent arguments I just made them up, divide by 10 or 100 if you think they are too generous) might at some point in their lives read certain sections or acts because they related to them directly, often through business or crime. For example a retail store owner might very well make the time to read the consumer guarantees act(nz), or someone being accused of indecent assault might read whatever act pertains to public decency, and also assault.

Direct results.
The result of 25% of people being better educated about the law is that these people are more able to follow the law with a real understanding of what they can and can't do. Another result is that when new laws are proposed these people will have some practice at reading and understanding the language of law. stevey_frac's point about legal english being nearly another language supports my point, in that making it more available to the public gives them access to resources for learning this strange language in a direct way which relates to their own lives. This better understanding supports the democratic process making this new group of people better informed and better able to judge the merits of proposed new legislation. Helping a small percentage of the population better participate in democracy and also live in more harmony with the state and it's laws is a an excellent and desirable result.

Indirect results.
stevey_frac wrote:And if you want to know of the law, there is probably someone you could ask. For instance, a child can ask his/her parents. An adult a police officer, lawyer friend, or someone in a field related to their question.

The fact that people ask other people for this information makes it asolutely neccessary that at least some small percentage of the population actually know the law. Police are an excellent source but they are often very busy when you see them around and may not necessarily give you the full picture (which could take hours to explain in full), the police also rarely know about laws outside the field of criminal law. Lawyers are also excellent sources of legal information and a lawyer can be found who will patiently explain to you any nuance of any given law. But lawyers are very expensive, and as knowledge of the law is assumed in our justice system, expecting everybody to pay several hundred dollars an hour to learn about it is not acceptable. This is another reason I wanted the wording of the obligation to provide access, I would at least hope that it stipulates the information be free of charge, therefore excluding lawyers. If I ask my parents they have the same dilemma, how did they get their information about the law? Police, a lawyer or their own parents? Maybe a friend told them, is their information accurate? How can I verify the accuracy of the legal advice I am given? The answer is, again, several hundred dollars an hour. The benefit of the small percentage (be it 25% or 2.5%) mentioned in the preceeding paragraph being able to read the law themselves also extend to the rest of society who don't read the law. The general advice given by parents and friends will be of better quality and accuracy and will be verifiable for anyone who has doubts. This has all the direct results of the preceeding paragraph but now for the whole population, in an indirect way. Facilitating general increase in the understanding of the laws themselves, the language they are written in, and the general process whereby they are made, and thereby increasing informed participation in both the selection of candidates and the formulation of laws in a democratic system. There is also the possibilty that increased interest and understanding of statutory law might prompt the media to start covering more of what the governement is really doing in this field, further increasing participation and level of public awareness.

This was the line of thinking which has lead me to believe that making legislation universally available to the public is not only a good idea, but a necessary step in ensuring a healthy democratic process. Sorry for the omission earlier.

I would also like to point out that no one has answered my question:
drunken wrote:My main question here is does anyone know what the wording of this obligation to provide access is?
***This post is my own opinion and no claim is being made that it is in any way scientific nor intended to be construed as such by any reader***

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Re: Ignorantia juris non excusat and the internet

Postby amyweaver29 » Wed Dec 30, 2009 3:26 am UTC

I would also like to point out that no one has answered my question:
drunken wrote:My main question here is does anyone know what the wording of this obligation to provide access is?
[/quote]

Do you mean to inquire how is access provided for laws to be known to everybody?

In our country, it is a requirement that all laws approved should be published in an official gazette of national circulation. With the advent of internet, still the laws are published, as provided in the law, via the official gazette, at the same time, that can also be accessed via the net.

It simply means, read the paper.

Laws are really wordy and at times difficult to understand - we also have to consider the intention of the framers of the law. Nonetheless, I found that the safest things to do not to be ignorant of the laws are the following:
1.) The right to do something does not mean doing it is right.
2.) Your right ends when the right of others begin.
3.) Do not do unto others what you don't want others do unto you.
4.) If you do not like it, most likely others don't like it, too.
5.) Anything excessive is bad.
6.) What is of God is always right, so follow the 10 Commandments.

God bless.

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Re: Ignorantia juris non excusat and the internet

Postby drunken » Wed Dec 30, 2009 11:07 pm UTC

Thankyou amyweaver29. Could you also add to that what country you are from (your .de website makes me assume German) and the name of or possibly a link to the gazette in question?

If it is Germany then the actual law in question is Article 82 of the German Federal Constitution http://www.iuscomp.org/gla/statutes/GG.htm#82 (english translation)
Section 1) (1) Laws enacted in accordance with the provisions of this Basic Law shall, after countersignature, be certified by the Federal President and promulgated in the Federal Law Gazette. Statutory instruments shall be certified by the agency that issues them and, unless a law otherwise provides, shall be promulgated in the Federal Law Gazette.

All of Germany's laws and also those of the European Union are already on the internet, which is good for me as I plan to move there next year. I am still very interested to hear the answer to this question for the USA and England, and also for my home country whos laws are mostly based on the US and UK.
***This post is my own opinion and no claim is being made that it is in any way scientific nor intended to be construed as such by any reader***

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Re: Ignorantia juris non excusat and the internet

Postby Azrael » Thu Dec 31, 2009 12:31 am UTC

drunken wrote:I am still very interested to hear the answer to this question for the USA ....
Then read the third post, where is it explained that the US Federal code is already posted online.

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Re: Ignorantia juris non excusat and the internet

Postby drunken » Thu Dec 31, 2009 2:49 am UTC

Azrael wrote:Then read the third post, where is it explained that the US Federal code is already posted online.


I know I just didn't want to read the entire code just to find one section and i thought someone might know where it is located. That hope having been found to be in vain I have read a certain amount fo the code and so far found some details.

http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc1.wais&start=107473&SIZE=1168&TYPE=TEXT
Title 1 Chapter 3 section 205:

The publications provided for in sections 202, 203 of this title
shall be printed at the Government Printing Office and shall be in such
form and style and with such ancillaries as may be prescribed by the
Committee on the Judiciary of the House of Representatives. The
Librarian of Congress is directed to cooperate with such committee in
the preparation of such ancillaries. Such publications shall be
furnished with such thumb insets and other devices to distinguish parts,
with such facilities for the insertion of additional matter, and with
such explanatory and advertising slips, and shall be printed on such
paper and bound in such material, as may be prescribed by such
committee.

and also
http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc1.wais&start=107473&SIZE=1168&TYPE=TEXT
Title 1 chapter 3 section 210

Copies of the Code of Laws relating to the District of Columbia, and of the supplements provided for by sections 202, 203 of this title shall be distributed by the Superintendent of Documents in the same manner as bound volumes of the Statutes at Large: Provided, That no slip or pamphlet copies of the Code of Laws relating to the District of Columbia, and of the supplements provided for by sections 202, 203 of this title need be printed or distributed.

The superintendent of documents http://www.access.gpo.gov/su_docs/fdlp/pubs/explain.html is a system of classification but it also means that the copies will be distributed to certain libraries and the national archives. This seems to be the obligation as I asked for it. The provisions in chapter 3 go into a lot of detail about what is to be published, and how.

I imagine this system or something similar is typical of most countries, at least of the countries that I was specifically asking about. If anyone knows otherwise then let us know.

I apologise for the links formatting strangely, I am not sure why
***This post is my own opinion and no claim is being made that it is in any way scientific nor intended to be construed as such by any reader***

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Re: Ignorantia juris non excusat and the internet

Postby AJR » Thu Dec 31, 2009 6:23 pm UTC

drunken wrote:Firstly, a minor matter,
hidden.ips wrote:It would be a very lengthy and very expensive undertaking to make the laws available over the internet.

In terms of governement expenditure, not really. It would be a few thousand hours at secretarial wages. A minor expense when compared to other bureaucratic budgets, especially if there is a real advantage to be gained.

I'd like to respond to this point.
The UK Statute Law Database has, as an electronic system, been in development since 1991 when work began on a version that would be distributed on CD-ROM. In 1995 it morphed into a pilot version of a website that was only ever available to some government users, a project which was delayed and changed over the years, until in 2004 a new version (the one which currently exists) was announced which was launched in 2006. (Timeline from Wikipedia article.) According to the current site's FAQ, only about half of the content is completely up-to-date, with many amendments since 2002 not yet included.
In other words, they've been working on it for 18 years, and the current version for six years, and it still isn't finished.

As for where the obligation to provide this comes from, I suspect that in the UK it's not written down anywhere - we do after all have an unwritten constitution and lots of common law. When the SLD website was being launched in 2006, the government were considering making it a commercial offering, but were convinced otherwise.

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Re: Ignorantia juris non excusat and the internet

Postby stevey_frac » Thu Jan 28, 2010 1:13 am UTC

drunken wrote:This is a much more complicated issue. In direct terms I agree with this, most people. But lets say that 5% of people would actually bother reading the statutes in some depth, not all of them, but spending some significant length of time. I would be one of these people, mostly from curiosity, both of my own rights and obligations, and of political theory and practise in general.


I would like to address this. The problem here is that the general public is not in a position to correctly understand and interpret the law.

Point in case. I have a dream of owning a steam-powered boat. Now, i wanted to ensure that I had all the proper licences and was following any pertinent regulation. I googled around, and found the act that pertains to boiler construction, safety, and operation in Canada. It states I need a certain licence, and the boiler itself must be safetied and inspected every year or two at the inspectors discretion, along with a host of requirements for the boiler itself. I spent 2 or 3 days trolling through this one not all that complicated piece of law (as far as these things go) to reach this conclusion. Satisfied with my result, I contacted the appropriate ministry to apply for the operators licence. At which point I was promptly told that this particular act had no relevance to marine boilers and that I needed to refer to some subset of another act, and a completely different ministry. Now imagine that instead of 2 days of wasted time, your missed conclusion leads you to do something highly illegal, despite your research. (it also turns out that marine boilers under a certain size are virtually unregulated.... scary stuff for all 3 of us that are into that kinda thing)

The requirement to make this stuff available is only so that people can't make laws up, then claim that you should have known. If you don't know, your peers don't know, and you need to know (which generally means you are in some extraordinary situation), you can pay a lawyer to decipher it for you, which if it's important you should do anyways.
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Re: Ignorantia juris non excusat and the internet

Postby mythago » Thu Jan 28, 2010 6:14 am UTC

drunken wrote:The idea occurs to me that by way of protest (not as a way to get away with crimes or as a successful legal defence) that anyone who is being tried for a crime should claim that the government is in breach of it's Ignorantia juris non excusat obligations and therefore until the problem is rectified (ie all statutory law in your country is made available on the internet) that ignorance is a valid defence.


What about common law (case law)? If we don't make that available on the Internet is the government in breach? And how does putting it on the Internet necessarily mean that everybody knows exactly what the laws are? As you yourself found out, the fact that a law is buried on page 3,294,193 of some Federal code is no guarantee that people will be able to find it.

The penalty for a government branch failing to comply with its disclosure requirements (not "its ignorantia juris non excusat obligations") is not "all crimes become legal."
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Re: Ignorantia juris non excusat and the internet

Postby sikyon » Thu Jan 28, 2010 2:50 pm UTC

I actually find that ignorance of the law not being a defense to be quite unusual.

Consider: The vast majority of the population does not read law books, nor do they have a full understanding of the law. It has not, like mathematics or reading, been taught in school.

Consider: Laws are supposed to be reflections of society - they are supposed to be based off of what society considers correct, and incorrect. Therefore, we have trial by a jury of your peers.

And yet, if your peers are ignorant of the law... what right then do you have to be judged by a law both you and your peers were ignorant of? While laws must of course be rational, I feel that they should also be logical - that even if you were not aware of the law, it should have been obvious you were doing something wrong. This is not always the case.

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Re: Ignorantia juris non excusat and the internet

Postby stevey_frac » Thu Jan 28, 2010 7:14 pm UTC

Ignorance of the law is no excuse because otherwise, the pot dealer can say "I honestly thought this was legal!".

If ignorance of the law was a valid excuse, it would pay to be as ignorant of the law as possible, in order to never be held accountable to anything.

That being said, I submit that if you made an honest error on your taxes, someone called you on it, and you said, 'oh right, crap..' and paid the man... that you would not be jailed for tax fraud, but perhaps charged interest.

Despite the law being quite binary and unforgiving, implementation of law can be fairly fluid. That's why we have judges, police officers, and such that are capable of making judgement calls.
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Re: Ignorantia juris non excusat and the internet

Postby Ryan T. Noble » Sat Jan 30, 2010 4:37 am UTC

haHA! The REAL answer to the question you ask exists within the tortured language of the law, made so as to be unintelligible to all but legal scholars.

Fortunately, I happen to be one of those.

Regarding ignorance of the law, it depends on whether or your "crime" is a penal, criminal offense or an intrusion of an individual's civil rights actionable in civil court. Basically, to be a penal crime (what is in the common sense a breaking of the law, i.e. murder, theft, robbery) the actor must, in most cases, be aware that they are committing some wrong. The Model Penal Code, a guideline which is enacted in every state in the U.S. in some form, defines several mental states of the actor which punishes a crime in various degrees according to whether the actor purposefully committed the act, i.e. I premeditate killing someone, or knowingly committed the act, i.e. I didn't want anyone to die I just felt like detonating this grenade for funzies. The punishment for a crime typically decreases as one's mental state towards the act decreases. For example, if you are totally unaware that your action may cause harm, and you in no way intended to perform the act, and it was an honest mistake, you will not be imprisoned for that act.
The trick is, your "ignorance" regards the act itself, not the statute or law behind it. For example, lets say there is a statute which makes it a criminal offense punishable by prison time to intentionally shoot your neighbor's dog with a gun. You have no idea this statute exists. One night you see a dark, hulking shape creeping through you neighbor's yard. Earlier that day you read a local newspaper article about a hyena infestation that was afflicting the town. You assume this creeping creature is a hyena and shoot it dead. Turns out it was the neighbor's dog. You are not criminally punishable because you did not intend to kill your neighbor's dog, in fact you intended to protect your neighbor by killing a wild animal. Note that the "ignorance" regards whether the creature was a dog or a hyena, not the existence of a statute.

The same theory does not apply to civil actions like breach of contract, personal injury torts, malpractice, etc. But for these kinds of actions there are rarely statutory published law, only case law precedent that exists within the writings of judges when they publish court opinions.

Also, there are certain penal codes which cite "strict liability." This means you are guilty of the crime, and incarceration is possible, regardless of whether you were aware your act was wrong or not. The most common example is statutory rape. Even if the hot date told you they were 18 years old...if they're really 16 you are boned.

Regarding the public's ability to access and understand the law...good friggin luck. See, once the legislature enacts a law which is published in the state code as a statute the court judges will interpret the language of the statute to mean different things, sometimes completely opposite of what the statute appears to mean when read by a layman. So your best bet is to play it safe...or shell out for legal counsel.


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Re: Ignorantia juris non excusat and the internet

Postby Plasma Man » Tue Feb 09, 2010 12:22 pm UTC

sikyon wrote:...if your peers are ignorant of the law... what right then do you have to be judged by a law both you and your peers were ignorant of?
In the UK, the judge presiding over the court explains the law to the jury and informs them of what criteria need to be met for them to convict someone under that law. It is then up to the jury to decide whether the evidence presented to them allows them to conclude that these criteria have been met. Interestingly, a conviction has been quashed due to the way the trial judge explained this to the jury. "...at his appeal hearing in January Lord Osborne criticised the way the trial judge explained the main Terrorist Act charge to the jury. The judge, sitting with Lords Reed and Clarke in Edinburgh, said the "material misdirection" amounted to "a miscarriage of justice"."
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