| | |
|
JessicaHallettFirstPaper 5 - 27 Feb 2010 - Main.JessicaHallett
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | | | | Following All of the Rules
-- By JessicaHallett - 25 Feb 2010 | | | What can be drawn from these inconsistent decisions? The law holds us to a double standard in which sometimes we are expected to know the law, and other times are punished for reliance. The purpose of a theory of presumed knowledge might be to encourage people to actually know¬ and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal. In doing so, people rely on their own sense of right and wrong. In this way, the law relies on people filling in the gap of knowledge with some form of morality or a sense of what “should” or “probably” is illegal (which can only come from some inner conscience, if not external rules), or assumes that there are circumstances under which it is universally true that a person would be inclined to investigate the law further. The problem there is that this assumes some universal moral sense, or universal code of ethics that is untenable.
As a result, there is punishment when a person acted seemingly lawfully, and exculpation at times when a person behaved in ways that were clearly beyond the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. This combination of legal fictions, inconsistent requirements, and the substitution of law with morality in cases where lack of knowledge leaves a gap to be filled combine for an unclear system. If there is to be no punishment without law, the law must speak clearly: the legal fictions need to be eliminated, and a clear, practical development of what we are expected to know and are entitled to rely on needs to emerge. If, like Mr. Stack, we follow all of the rules, and still get burned, the law sets forth an impossible double standard. | |
>
> |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JessicaHallett
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |