zlacker

As a person with essentially libertarian views, this is a very interesting article. I may be too quick to applaud this article because it supports my own views, but I think it raises a number of legitimate concerns. In particular, I was struck by this point: In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased. This is a slope that we have been sliding down for some time. While ignorance of the law has generally been excluded as a defense in criminal cases, our system of laws is becoming so convoluted that it is almost impossible to know and understand the applicable law. Thus we are all at risk. It feels like we keep inching closer to a society where everyone is either a dependent of the state, or at risk of becoming one through regulation and/or prosecution.

>>Alex63+(OP)
Yea, I would generally agree with you. The problems of the law is that it's largely made and enforced in a arbitrary and over-complicated way.

On a startup side, there is actually is a big difference between common law (e.g. Anglo) and civil law (e.g. Franco) systems - with common law being more advantageous to entrepreneurship because of the reduced risk of arbitrary laws - unlike precedence in common law systems.

PDF: http://moritzlaw.osu.edu/eblj/issues/volume1/number2/Smith.p...

>>nickpi+O
But civil law more easily may degrade in a byzantine mess. Here in Italy there are more than 100,000 laws (estimated, for no one really knows, and this is just for national laws, and not including technical regulations). Which means that no one is realistically able to understand what is right and what is not. Under such a system, one lives with sort of a random fatalism.

>>blue1+q1
Not just random fatalism, but also greater acceptance of the idea that individuals can pay authorities not to enforce the vast and unknowable system of laws.

>>Alex63+F1
Italy is not corrupt enough for this. The law is more or less applied (more or less also depending on the region) but in a random, chaotic, occasional fashion, because an uniform application is really impossible. It's a bit like the idea of sin. You shouldn't do it, but human nature is what it is. Provided you keep within certain limits.

>>blue1+H2
You are much more familiar with the situation in Italy than I am. My comment was based on Codes of the Underworld (Diego Gambetta, 2009, Princeton University Press). On page 70, he says:

"The wider the range of possible transgressions, the greater the amount of potential information available for mutual blackmailing... Italy is a country with a high level of corruption that has proved hard to explain...Italy has in excess of 100,000 laws and regulations...The probability of living a life, indeed of going through the day, without incurring at least one violation must be virtually zero for Italians... It seems plausible therefore to hypothesize that the high levels of corruption in Italy could depend on the fact that everybody has some dirt on everybody else."

My apologies if I have been misled by this.

>>Alex63+(OP)
With regard to mens rea, it should at the very least apply to conspiracy charges.

>>Alex63+(OP)
I find it hard to believe that quoted statement. Although I am not an American, I think the legal system of America is very much based on the British system, thus there are very many similarities.

I think judges are very resistant to anything which tries to undermine the principle of intent. If a statute does not make it absolutely clear that the crime is of strict liability, then even the most general words would be interpreted as requiring intent in criminal cases.

Without intending something the government has no legitimacy to imprison the person in most cases. Its a fundamental principle. So, if you are going to make such a big statement concerning the fundamental principle of the criminal law, the least the article could have done is to give some examples, or to give a reference to some journal which documents such "weakening".

As they have not bothered to do either, I would take it as a generalised opinion perhaps with very little basis.

>>Alex63+T3
Actually, it strongly depends on the region. I live in one of the "lawful" ones.

>>Alex63+(OP)
> In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased.

Others have found this a surprising claim, so do I. How has it been weakened or erased? Are they talking about different mental elements or creating offences which do not have a mental element at all? The first doesn't strike me as particularly novel, or objectionable.

> This is a slope that we have been sliding down for some time. While ignorance of the law has generally been excluded as a defense in criminal cases, our system of laws is becoming so convoluted that it is almost impossible to know and understand the applicable law.

This isn't a good thing by any means, but the issue of the law being unknown or incomprehensible to laypeople is nothing new. Take common-law requirements. Honestly, how many people read the relevant case law, or even understand its general effect? People have bumped along for, literally, centuries knowing little more than the broad outline of the law.

I'd also point out that "increasingly codified" isn't synonymous with "increasingly convoluted"; common-law rules are often pretty convoluted.

> Thus we are all at risk.

I'd actually suggest that the general level of legal knowledge has improved. Thanks to the Internet it's at least possible to get at the content of laws without access to a specialised library.

>>nickpi+O
Are you saying you think common law is more advantageous than civil law, or vice versa? You said "common law" on both sides of your sentence.

I would agree that common law is more advantageous, because stare decisis ensures that the continuity of existing law is maintained, and that even new statute law must be interpreted in a way consistent with the existing system of law. Civil law, which relies entirely on statutes, allows legislatures much more leeway to make sweeping, arbitrary changes.