Laws, Promulgation, Injustice

The Founding Fathers were well-read in Roman history and law. According to Russell Kirk, the Founders looked to Rome, Athens, Jerusalem, and London for inspiration and guidance. In reading over Roman maxims today on a lark, I happened upon the following sentences from various works by Tacitus:

Auferre, trucidare, rapere, falsis nominibus imperium; atque, ubi solitudinem faciunt, pacem appellant.

Corruptissima re publica plurimae leges.

Loosely translated, the above mean the following:

They plunder, they slaughter, and they steal: this they falsely name Empire, and where they make a wasteland, they call it peace.

[And now bills were passed, not only for national objects but for individual cases], and laws were most numerous when the commonwealth was most corrupt.

The first is ostensibly from a speech of a Caledonian general to his troops, given regarding the true nature of the Romans. The second, a general observation about "special interests" of the times. The first I leave to your consideration. It is always wise to be able to consider how others view us. This need not result in a mea culpa moment so beloved by progressives. Rather, it can be an occasion for introspection.

However, I think that the second is worth considering at greater length. In various recent publications, scholars (often conservative, but not always), have noted the massive expansion of federal law in many areas, but especially the criminal law. For instance, David Boaz on the Cato website noted in 2015 that:

In his book Overcriminalization: The Limits of the Criminal Law, Douglas Husak of Rutgers points out that federal law now includes more than 3,000 crimes, and there may be 300,000 or more federal regulations enforceable through criminal punishment at the discretion of an administrative agency. Which is why criminal defense attorney and Cato adjunct scholar Harvey Silverglate titled his book Three Felonies a Day.

These statistics hedge with "more than 3,000 crimes" and "may be" because, simply put, nobody in the federal government really knows. As Glenn Reynolds noted last year:

"Regulatory crimes" of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. "Tellingly," he writes, "no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500." Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.

While, with Bolt's character Thomas More, we may say that law is a good thing:

This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

...it is also quite true that law may be a bad thing, as may any thing which is abused.

Consider the concept of "promulgation." St. Thomas Aquinas stated in his Summa Theologica  defines the essence of law as an "ordinance of reason for the common good, made by him who has care of the community, and promulgated." Further regarding promulgation, Aquinas states  that “in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation.”  Aquinas takes his definitions from the Decretum of Gratian, published by Gratian in roughly 1139 (which is, of course, debated by scholars).

Reasonably, it seems to me that there are two concepts contained in the idea of "promulgation." One is the act of making a law public, the other is the ability of the public to know and understand the law, the latter a function of the complexity of the law and the time to learn to adjust one’s behavior in accordance with the law. This occurred to me after reading the following passed, from James Madison in The Federalist, no. 62:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulgated, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow.

As diverse authorities as Jeremy Bentham and Blackstone agree with the ideas behind this statement.

Obviously then, the American political tradition is replete with the necessity for promulgation, both by announcement and by permanence. Blackstone, a jurist much admired by the American founders, cites the following anecdote by Cassius Dio regarding Caligula in his own discussion of promulgation:

But when, after enacting severe laws in regard to the taxes, he inscribed them in exceedingly small letters on a tablet which he then hung up in a high place, so that it should be read by as few as possible and that many through ignorance of what was bidden or forbidden should lay themselves liable to the penalties provided....

The difficulty of the sheer number of federal crimes, as discussed above, is the average person's ability to know them, or guide their behavior accordingly. (Note: for the purposes of this post, I am including statutes which produce fines, as well as imprisonment.) For example: in August of 2011, a girl, age 11, discovered that her cat was about to eat a baby woodpecker. In order to save the bird, she placed it in an empty cage. Traveling from her father’s to her mother’s house, she was confronted by a U.S. Fish and Wildlife employee in a Lowe’s with the bird, and the girl promised to release the bird. Two weeks after releasing it, the same employee showed up with a state trooper at the mother’s house, with a citation for the mother. She was summoned to court, ordered to pay a $535 fine for violating the Federal Migratory Bird Treaty Act; and she also potentially faced up to a year in prison. The Fish and Wildlife Service later cancelled the ticket and apologized.

In a less sanguine outcome, the Sacketts were a couple who purchased a lot near a lake in Idaho. They began grading the lot, but were suddenly ordered to cease by the Army Corp of Engineers, who claimed that a wetland was on the property, thus enabling the EPA to halt construction and demand that the Sacketts return the land to it's prior state. The EPA refused to give the Sacketts a hearing, and asserted that the EPA could extract a daily $37,500 fine, or double, if the Sacketts refused to comply with the order. The case went to the Supreme Court on the sole issue of whether the EPA could prevent the Sacketts from suing the agency until the EPA decided otherwise. The Court decided 9-0 that the Sacketts could seek judicial remedy. The case is still ongoing, so the EPA may potentially be permitted to impose the penalty for failure to comply. The Sacketts claim that there was no way to know the land they purchased was subject to EPA jurisdiction.

These are by no means isolated incidents. They show what happens both when excessive numbers of laws are passed, and when people's natural behavior becomes criminalized. In his notes on promulgation, Blackstone notes several ways that a law might be made known to people:

But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. 

The enforcement of laws of which people cannot know, and which criminalizes behavior far removed from what seems criminal is problematic. Many great legal reformers have realized this, and both simplified laws and condensed the number of laws, so that the people might know them. Aquinas himself argues that a law which fails to be promulgated loses its force, saying:

Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force.

Aquinas (and Blackstone) might say that laws which are neither knowable through natural reason due to congruency with morality, nor readable due to their voluminousness, have no force, and therefore, cannot be enforced. And the embarrassment which sometimes accompanies the enforcement (and then, withdrawal of enforcement) of esoteric laws such as contained in the scenarios above is evidence that at least some agencies realize the problems inherent in enforcement of them. I would argue that enforcement of laws which have no relation to "normal" behavior, and which are so voluminous that even federal government agencies are unable to keep a count of them, is manifestly unjust. As Cassius Dio relates regarding Caligula, in desiring to make more money from penalties related to disobedience of the tax laws, he posted them to a high pillar, therefore making them unknowable, even though he technically "promulgated" the laws.

In addition to the manifest injustice of penalizing or imprisoning people for disobedience to rules they cannot possibly know, an addition effect of these complex regulations is that they favor the wealthy and powerful over the less so. For instance, many of these regulations involve business operations. The more regulations to be obeyed, the more costly and time consuming the operation of a business. Large corporations can hire firms of attorneys to assist in navigating the regulations which might affect operations. Small corporations and other small firms cannot do so, and therefore must either hope that they obey the law, avoid business in the first place, or spend a ridiculous amount of time learning arcane regulations and laws, and hope that they get them correctly. Thus, increasing regulations on corporations to get them to "behave" in ways desired by the legislature has the odd effect of reducing competition in a sector, and helping to create de facto monopolies.

Any Congressman and President should strongly consider taking steps to reduce these burdens on individuals and small business. Respect for the law fades as it becomes unknowable, increasing disobedience through increasing indifference in the population. Thus, this is a direct affront to order and the rule of law itself. We have prided ourselves on being a nation of laws, not of whim, but so many regulations unknown and enforced becomes the same thing as caprice, for "Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed." And unruly rules, which are complex and change often, undermine the confidence in justice and fairness. If enough people no longer have confidence in courts or legislatures, then the unruly will be emboldened, perceiving that the authorities themselves know not the law, and the orderly will despair, seeing no bulwark against the instability sanctioned by the unruly.