It has always been my contention that, if two different judges have come down on opposite sides of the question of what the law means and whether it applies to a particular defendant, then said defendant ought to be held at that point, by definition, not responsible for having followed the law. A disagreement among judges — our designated experts on the meaning of law — makes it inarguably obvious that the defendent had no clear way of knowing what the law actually required: if two judges, whose primary and formal function is to know what the law requires, can’t agree, then how is some random citizen supposed to know?
I would also extend that beyond judges to other actors within the legal system whose responsibility it is to know what the law says and requires. I would not include individual policemen in that, since they operate in the field without direct access to the law books (and typically without formal training on the content of law) and often on an emergency time-frame. But prosecutors — who are making their decisions with direct reference to the statute books and prior precedents, and with plenty of time in which to ponder the nuances — and executive branch regulators who have been given authority to enforce regulatory rules, rather than statutory ones — but with the same time for reflection and the same ability to examine the text of the regulation and any applicable precedents — have the same formal responsibilities as judges do: to know what the law requires so that they may apply it. As with judges, if different prosecutors and/or regulators can’t agree on what the law requires, then why is it reasonable to expect some random citizen to know?Continue reading