Gold-Scales | OPED COLUMN LAW

You Accidentally Broke a Law which You didn’t Know was a Law. What happens?

[ by Justin Schwartz ]

It actually normally doesn’t much matter whether you know the law to whether you broke it or not. The usual maxim is “ignorance of the law is no excuse.” That is generally if not universally true. To break a law, what you have to do is to satisfy the elements of the offense or wrong.

For example, murder is usually defined as intentionally killing someone without lawful justification. If you killed someone, and you meant to do it, and you didn’t have lawful justification (e.g. self defense) then you have satisfied the elements of murder, and committed the crime. It is not a defense to say, I didn’t know that was against the law.

There are a number of narrow exceptions. The law itself may say that ignorance is a defense. Some tax law is presumed to be so complicated and hard to understand that if you got advice from an expert such as a tax lawyer or a certified accountant, and that advice was wrong, so that you made false statements on your tax returns, thinking that they were correct because of the incorrect expert advice, that is a defense to some violations of the tax code.

Similarly, some laws involve a bad mental state called willfulness, Which is different from knowledge – knowing that you are doing the thing the law forbids, whether or not you know the law forbids it; or intent – intending to do the thing the law for bids, again whether or not you know the law forbids it.

With willfulness, as it is usually understood, you don’t have to know that there actually is a law, or what it says, but that kind of thing that you did was bad enough that you should have known that there would be a law against it.

However, here ignorance is not a defense, because it is presumed that a reasonable person would have known that there was some law against it, and you are presumed to be a reasonable person, or anyway held to that standard.

The long and short of it is that normally you do not have to know that what you were doing is illegal for it to be illegal. You just have to do the thing that is forwith the appropriately bad state of mind.

And in some cases, strict liability offenses like speeding, you don’t even need to have a bad state of mind. All you have to do is do the thing that is forbidden. And of course you do not have to know that it is forbidden.

Since the laws are complex, often obscure, not necessarily consistent, and not just what you would read in a statute book, but also are understood as they are interpreted by the courts in your jurisdiction, and in many cases people don’t even know what jurisdiction they are in, or as they are interpreted by the agencies that make rules with the force of law and interpret The regulations that they administer and sometimes create, like the statutes, are written in a kind of code language with special meanings attached to words that ordinary people would not necessarily know. That’s for example,The word “reasonable” usually invokes and objective standard independently of whatever a person might actually think.

These kinds of things can lead to unfairness, but in some ways it is hard to see how that could be avoided without sending everybody through three years or anyway several years of law school, and giving them the resources they need to find and interpret the law. That is why in encounters with the law, it is highly advisable to have a licensed attorney who has that sort of training to help you out. And if you think you might be encountering the law, to consult an attorney before hand about what you’re doing and what the law requires. That is why businesses of any size have legal departments or general counsels to give him that sort of advice. Most citizens of course cannot afford to consult a lawyer even on important matters and therefore are just out of luck.

Justin Schwartz is a lawyer working at Law Office of Justin Schwartz. He is an ex-law professor, ex-philosophy professor, ex-Biglaw, independent scholar and idiosyncratic leftist.

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