it’s all ex post facto

On the About page, I mentioned the idea that, for most people, the law is determined only in retrospect.  That is, we don’t often decide how to act based on what we know the law is, but we act first and find out later if we screwed up.   I’m not the first person to point out the issue.  William H. Simon spends a few pages on it, in one of the interesting bits of The Practice of Justice: A Theory of Lawyer’s Ethics:

“Explicitly retroactive laws are sometimes unconstitutional and usually suspect.  But for most people most law is implicitly retroactive.”  He goes on (quoting John Chapman Gray), “When a man marries, enters into a partnership, or buys a piece of land, or engages in any other transaction, he has only the vaguest possible idea of the law governing the situation, and with our complicated system of jurisprudence, it is impossible it should be otherwise.”

To summarize, the Constitution forbids new criminal laws applied after the fact, but most law, criminal and civil, is “implicitly retroactive.”  There’s a couple reasons. First, laws are complex.  Most aren’t built around a coherent and unified structure, but consist of layer upon layer of “fixes” and “improvements” handed down by fickle legislatures, applied through a system of judge-made law (“case law”) which is hard to find, let alone interpret, without special training.  Second, even a lawyer who knows the written law can’t tell for sure how a judge will decide a given case with new facts.

William H. Simon is cool with it, though.  He argues that “to a large extent, the law coincides with ordinary morality with which most people are familiar.  (Where law departs from ordinary morality, we sometimes make exceptions to the ignorance-is-no-excuse principle).”  So, as this argument goes, it doesn’t matter if we understand the law or not, because the law usually coincides with what we know already is good and bad, moral or immoral.

True that, the law “usually” coincides with morality, though I doubt Mr. Simon has ever been convicted of DUI for sleeping off about 10 beers in the bench seat of his pickup truck in front of a the Quality Inn in rural Utah–behavior that is not especially classy, but arguably not “immoral” either (and DUI is not one of those criminal laws that we make exceptions for).

Simon would respond that “where morality is out of tune with what judges or legislators feel is an important public principle, the liberty interests protected by the accessibility of the law are outweighed by the principle.”  In the example above, one could argue that the “public principle” is that law enforcement shouldn’t have to wait until drunk drivers put the public at risk by actually driving, but should be able to stop them before they get on the road by arresting them ahead of time, and if they end up arresting a few people before they’ve done anything morally wrong, well, it’s probably worth it.

It’s a valid point, but Simon’s argument is about the relative value of abstract principles. There’s no easy math to decide if he’s right, and the question of whether a given benefit is “worth it” always depends on who’s paying.  I don’t think anyone could argue that we shouldn’t endeavor to lower the price, through education and refining the criminal code.

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