Ignorance of the Law & Wagging the Dog

The fundamental issue in political science, the issue which drives all other issues, is the relationship between the people and the government. The American principle—not invented in America, and even there not practised with much consistency—is that the people are primary, and that the government is secondary. The people owe nothing to the government, but the government owes all to the people. There can be—and have been—people without government; there has never been a government without people. The government is always the tail, never the dog.

History proves that governments have never endured the role of the tail, and all governments have sought to wag the dog. The doctrine, that ignorance of the law excuses no one, is merely one way in which the government tries to subordinate the people to itself. Although the doctrine takes the form of a prohibition on what defendants are allowed to say in court, its real target is the jury; the prohibition exists, not to keep the defendant from saying certain things, but to keep the jury from hearing them.

For some crimes—murder, for instance—ignorance of the law is impossible for a civilized individual, and the defendant who claims ignorance of the law against murder is practicing a deception. As Spooner pointed out, the jury is free to reject the argument, just as they are free to reject the defendant's plea of innocence.

On the other hand, in the case of some infractions of the law, it is quite possible for a person to spend a substantial amount of time in a community and receive no indication that a law exists against these acts, and upon being informed that he has broken the law, his initial response will be his rightful claim that he was unaware of the statute against his behavior. A jury hearing this defense might say to themselves, "The poor fellow didn't know he was hurting anybody. If he'd known, he wouldn't have done what he did." They will grasp—whether implicitly or explicitly—that concept of justice under which the criminal justice system exists to serve the people, specifically by protecting them from those who knowingly harm, endanger, or defraud others; and from this principle they will conclude that people who are harmless should be left alone.

It is not an exaggeration to say that we can distinguish a just court from an unjust court by this principle: A just court is a servant of all of the people, whereas an unjust court is a servant of some of the people. For example, bribes are not allowed in a just court because bribery causes a court to serve some of the people, and not all of them. In a like manner, a court that is always taking the government's side serves some of the people—those who form the government—and not all of the people, and therefore is an unjust court.

When a government has abandoned the role of servant, its courts will abandon the concept of justice under which everyone has the same rights, and advance the notion that justice consists of punishing those who disobey the government, which is the same as punishing those outside of government who disobey those inside of government. This will usually be worded as, "We must uphold the law," but since the law is a creation of the government, whoever says it is really saying, "We must uphold the government."

And just as a master of slaves bases his punishments on whether his orders are obeyed, so a government that views itself as master narrows its legal concern to whether the requirements of the law were met, i.e., whether its orders were obeyed. It begins to view the obedience of the people as something to which it has a primary right, the people's wishes notwithstanding.

Now those who defend the primacy of the government will plead that laws are made for the protection of the people, and therefore whoever breaks them has harmed the people, or at least has endangered them. The rebuttal to this is that the major premise is simply not true: Laws are not always made for the protection of the people, and in fact many laws were made for the enrichment of one party at the expense of everyone else (welfare, trade restrictions) or to impose one party's concept of proper behavior on everyone (Prohibition, the Endangered Species Act, etc). Furthermore, the focus of the two ideas is different: The people's concept of justice focuses on dangerous people; the government's concept of justice focuses on disobedient people. The two are not the same. The good of the government is not necessarily the good of the people.

It is not a rebuttal of this to point out that by virtue of the right to vote, everyone is a participant in the government. Laws which take from one man what is his, and bestow it on another, do not exist for the purpose of serving all of the people, but for the benefit of the recipient. That the man was able to vote against the legislator who introduced the law under which this happened does nothing to change the fact that the government serves only some of the people, and not all of them. His vote is of no effect. He is a participant in the government in name only.

So what happens when the government's concept of justice comes into conflict with the people's concept of justice? The conflict must be resolved, and will be resolved, one way or the other. History has shown us that the officers of the court will tend to resolve these conflicts in the government's favor. They are paid by the government, and are empowered in direct proportion to the number of offenses the court is authorized to prosecute. The government is enriched and empowered beyond need when it is allowed to punish harmless people, and government has always been a haven for those who are concerned only with enrichment and empowerment.

This is where a jury—a real jury—has its most crucial function, and is the reason juries exist. The jury is that part of the criminal justice system whose interests are most closely aligned with the people in general. A jury, like the people, gains nothing from the conviction of a harmless man and nothing from the acquittal of a dangerous man; and if there is a juror who does so gain, it is precisely because he has a special interest at stake in the trial before him, and may be justly excluded from the jury on those grounds.

On the other hand, the government gains considerably from the conviction of harmless people: It is empowered to deprive them of life, liberty, or property on account of a guilty finding. Less obviously, and less directly, the government is empowered by the acquittal of dangerous people: Freeing dangerous people gives them the opportunity to commit more real crimes, making the people feel less secure and more prone to clamor for a more powerful government to combat this crime. That a government which has ceased to be a servant of the people, will find itself more in opposition to the law-abiding than to the criminal class, is not shocking news to students of liberty; there comes a point when governments which view themselves as masters actively recruit the criminal element in order to increase the degree of control.

By requiring that verdicts be rendered by a jury, we affirm that conflicts between the people and the government are to be resolved by the people. The institution of trial by jury is nothing more than the practical application of the principle that the people are primary, and the government is secondary. Or:

The doctrine, that ignorance of the law excuses no one, is an attack on the primacy of the people.

First, it prohibits the jury from considering the people's interests in rendering the verdict. If a man intended no harm, the people's concept of justice, again, is to let him go. If the jury is not allowed to hear that the defendant intended no harm, or any defense leading to that conclusion, it is directed away from the people's concept of justice, and toward the government's.

Second, it prohibits the jury from thinking independently. When the court regards the jury, not as free citizens empowered to keep the court honest (which is its original function), but as a gaggle of bumpkins to be led by the enlightened officers of the court, it will expect the jury to believe everything they are told. It will allege that the jury may have a fool in its midst, and therefore the statements made in the court need to be controlled so that these fools will not be fooled. Since the court does not deal with the problem of gullible jurors by excluding gullible people from jury duty—indeed, the shrewd are most likely to be excluded—it appears that a manipulable juror is acceptable, as long as he is manipulated in a government-approved manner. The result is that the people's part of the system (the jury) hears only what the government's part of the system wants them to hear.

Third, it asserts that the people act by permission, and not by right. If a man, contemplating a course of action, must consult with the government, and obtain its approval prior to commencing, he is acting not by right, but by permission. While this is overtly done with the system of licenses and permits, it happens covertly with laws against activities for which prior contemplation does not yield any valid rationale for a law affecting that activity. Must a man, deciding to plow his field, or build a shed in his yard, consult with the government to see if an allegedly endangered species is alleged to dwell there? Must we run to the lawbooks for each and every program of action, on the chance that some crazy law has been made against it? If the people are primary, then only activities injurious to nonconsenting participants are outlawed, and other activities will still be lawful; hence the answer to these questions is no.

Fourth, it asserts that the people have a duty to the government. This is phrased by defenders of the doctrine as a duty to know the law. Since when do the people have obligations to the government? When the people are primary, the answer is, "Not even once."

Fifth, it encourages corruption. What is to stop the government from falsely claiming a certain harmless act to be a crime, in the hope that the victim (ie., the alleged offender) will agree to some deprivation of freedom or property—such as a plea of guilt to a "lesser" charge that really is a crime—in order to avoid prosecution? To say that a corrupt government is an attack on the primacy of the people is tautological. Allowing the jury to contemplate a defendant's claim of ignorance will eliminate a potential stratgey for corrupt police activity.

In summary, the doctrine that ignorance of the law excuses no one is an attack on the jury system and on the principle of a free republic. Within the courtroom, it is the way the government seeks to wag the dog.