Following All of the Rules

Yes, probably, but this isn't that situation. Mr Stack was one of innumerable purchasers of a snake-oil product: the claim that the US income tax law contains its own nullification. Mr Stack was told that anyone can become tax exempt religious organization, sheltering all income from taxation on that basis. As I mentioned when we discussed this in class, Mr Stack was more susceptible to this scam because—like many other people with engineering educations—he believed that a literal reading of statutory material, plus logic but minus context, will allow a layman to understand "the law."

This belief was not enough to result in the costs he details. Unwavering persistence in the belief, despite increasing, graduated efforts by the IRS to awaken him to the obvious fact that the income tax law cannot be so flagrantly evaded, and is not built in a flimsy fashion out of mere language and logic, produced his suffering. If Mr Stack had received, and heeded, sensible legal advice, he could have solved his problems peacefully and at far lower cost. The IRS is not a punitive service: its job is to gather the taxes legally due, but any taxpayer not engaged in deliberate attempts to evade tax payment—willing to file returns and to enter into payment arrangements for taxes due—will prevent the sort of cataclysm that happened to Stack.

The fiction of knowledge, like all fictions, "contains tension." Obviously there is always a contradiction between a fictional assertion and reality, or the fiction would be unnecessary. If factual ignorance of law were an acceptable defense, law enforcement in general would become impossible, as every enforcement action would either have to begin with proof of knowledge or a "first bite is free" theory that no one could be held liable for violation of law until put on specific personal notice.

Of course, what the law really does isn't to assume knowledge. The fiction is functionally equivalent to a rule requiring every person to inform himself sufficiently to engage in those activities in which he routinely or profitably engages. This can be enforced through licensure. In order to drive, or sell insurance, or practice "cosmetology," the state requires, among other things, that one prove a sufficient knowledge of the applicable rules to ensure accountability for compliance. Or it can be posed as a general obligation. The presence of an obligation to inform is not in conflict at all, logically or socially, with liability for misfeasance.

In the area of income taxation, the state does not even hold parties responsible for self-education to insure compliance. The complexity of the subject makes the imposition of such a burden unreasonable, and the result is a rule entitling a party to escape penalties for non-compliant behavior if they rely on the services of specialists in doing what they do. If Mr Stack had secured a legal opinion stating that his filings were compliant with the Code, although the Service could have forced him to pay taxes due, it could not have prosecuted him for what he filed, and he would have had an action against his lawyers for any penalties the advice imposed on him. Even the signature of a paid tax preparer on his returns would have provided insulation against anything other than the original tax liabilities.

Mr Stack's obligation is to comply with the law that exists. Not the law he personally believes exists, or that some other non-responsible party has asserted exists. In this respect, his obligation is precisely the same as every other person bound by law of any kind. He was in no way punished for "reliance on the very law he was supposed to know." He suffered the consequences of insisting that the law he was supposed to obey was one he made up based on legal materials he did not understand.

This is wrong, fundamentally, for the reasons I just stated.

This is a quick and to some extent reliable summary of cases to be found in a criminal law casebook, but it doesn't make the necessary distinctions, between, for example, the authoritative construction of a statute to include a scienter requirement in the definition of an offense, and the determination that a statute is void for vagueness. In the first case, the issue is whether the legislature intends that only parties who have actual knowledge of predicate facts can be liable (must you actually know that the feather you are selling comes from a bald eagle?) In the second, the issue is instead whether—by a standard of judgment having nothing to do with any individual's actual mental states—it would be adequately evident to a trained reader what conduct the law actually forbids. Moreover, these are all issues of criminal liability, an area in which the rules confining the state are particularly restrictive, and in which individual cases near any boundary should be decided in favor of the defendant. That in itself would ensure "inconsistent" decisions from the point of view of a casebook, a law professor of the usual unimaginative stamp, or a professionally unimaginative collection of law professors, such as the American Law Institute. Given, however, that courts do not actually resolve all factually close cases in favor of the defendant, "inconsistency" is even more an attribute of the appellate record on matters of criminal doctrine. So?

That's the original assertion repeated, but the argument advanced didn't actually demonstrate it (unless "sometimes" means nothing stronger than "cases are sometimes decided wrongly"). And some of the arguments on which you relied are themselves legally wrong.

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.

Why would that not be also the aim? And would the coincidence of the aim and the effect not be an instance of entire legal success.

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.

This argument concludes wrongly because it begins with a fallacious premise that was not identified when you edited the essay. A legal system such as the one being described does not rely on gaps being filled by the moral sense. The most likely thing for human animals, who are primates practicing imitative learning, is the imitation of what other people do. The obligation to inform becomes an implicit reinforcement of the existing tendency to imitate. This is how the law achieves spontaneous compliance: in states where it is highly visible that other people cheat on their taxes, such as Italy, voluntary compliance is notoriously low. In states, like the US, where the April 15th ritual is made extremely public and the filing process is seen to be "what everybody does," voluntary spontaneous compliance is extraordinarily high. Voluntary willingness to comply with copyright rules concerning entertainment bitstreams has dropped near zero in the younger segment of the world's populations, now that young people realize that other young people no longer comply. Entertainment industry efforts rest on "educating" children into the belief that the rules are a good idea, while maintaining enough pressure through harsh treatment of a tiny number of non-compliant persons to discourage large-scale imitation. Merely stating the strategy is enough to explain why it cannot work, and why any business remaining dependent on its success is doomed.

So the premise of the argument above is faulty: the law assumes that gaps in knowledge are filled not from a universal moral sense (which, whatever its qualities, would be a poor guide in answering such questions as whether it is wrong to drive 58 in a 55 MPH zone, or whether it is wrong not to post calorie counts on a luxury restaurant menu), but by imitation, leading to conformity, leading to spontaneous compliance. This requires no dependence on untenable assumptions, and is in accord with a view of human behavior justified by consilient argument across disciplines from biology through social psychology to sociology and comparative literature.

Because the two parts of the argument on which it relies are each unestablished, this conclusion falls too. What the revision has to do is to re-edit the argument to put in place something that relies on solid premises. If the resulting essay is about Stack, it needs to lose the "reliance" defense aspect. If the essay turns out to be about the social roots of compliance, Stack might be one illustration, but I don't think I see how he could be the only one, and some of the arguments here would need to be reconsidered entirely.