Wednesday, May 23, 2018
Paul J. Larkin (The Heritage Foundation) has posted The Folly of Requiring Complete Knowledge of the Criminal Law (Liberty University Law Review, Forthcoming) on SSRN. Here is the abstract:
Some hoary criminal law maxims still are sensible today. The presumption that everyone knows the full corpus of the criminal law, however, is not one of them. The larger and more complicated a subject matter becomes, whether that subject is the penal code or something else, the smaller will be the number of people who understand it. No one can know every provision in the criminal code, especially when you consider that administrative agencies can promulgate regulations that make conduct a crime. No criminal justice system worthy of that name can demand more knowledge of the penal law than what can be expected of the average person. The existence of the necessity and duress defenses proves that the criminal law accepts the reality that average individuals will break the law because they lack the fearless honesty of George Washington or self-sacrificing character of Sydney Carton. If so, the criminal law should also accept the reality that that the average person has less knowledge of the law than William Blackstone. Honesty and humility demand at least that much.