Rethinking Presumed Knowledge of the Law in the Regulatory Age

30 Pages Posted: 24 Mar 2015  

Date Written: Winter 2015

Abstract

In this article, I will examine the doctrine of ignorantia legis, or presumed knowledge of the law, as it functions in the current milieu of American criminal justice, the age of the regulatory crime. Much ink has been spilled over this doctrine, and many pieces argue against ignorantia legis, hinting at normative values of fairness and economic efficiency. With this article, I intend to formalize and synthesize these discussions, approaching the problem explicitly from both perspectives. As a framework for evaluating the doctrine, I will apply both Lon Fuller’s idea of “internal morality of the law” and general principles of economic analysis of law. While I do not subscribe completely to either view for all purposes, my intent is to demonstrate that the current application of presumed knowledge of the law is extremely troublesome under at least two distinct methods of evaluating law, indicating a strong need for reconsideration of the doctrine. Part II of this article gives an overview of the doctrine of presumed knowledge of the law in the context of the regulatory state, ultimately arguing that it pervades the current legal system. Part III contains the two critiques of the doctrine based on Fuller’s “internal morality of the law” and on the economic analysis of law, determining that the current application of ignorantia legis is suspect under both. Finally, the Article concludes by synthesizing these arguments and offering a few thoughts on the doctrine moving forward.

Keywords: regulatory crime, Fuller, economic analysis of law, ignorantia legis, presumed knowledge, internal morality of the law, strict liability

JEL Classification: K14, K2, K20, K4, K40, K41, K42

Suggested Citation

Cottone, Michael Anthony, Rethinking Presumed Knowledge of the Law in the Regulatory Age (Winter 2015). Tennessee Law Review, Vol. 82, No. 137, 2015. Available at SSRN: https://ssrn.com/abstract=2584034

Michael Anthony Cottone (Contact Author)

Independent ( email )

No Address Available

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