Thanks for the info. I'm interested in checking out that book. I'm sort of shocked how naive I was about this aspect of law. I knew of common/case law, but I suppose I didn't think it was quite as explicit as this.
This deeply bothers me. Judicial precedent is one thing when it consists of interpretation, influenced by previous decisions and historical context, of existing written law. It is an entirely different thing when it consists of literally legislating from the bench and fabricating new law that doesn't exist. I understand that this probably happens gradually over the course of many cases.
All I can think of now are the ways in which it can be abused.
Additionally, it sort of gives a whole new spin on the idea of ignorance of the law not being an excuse. How is one supposed to know and follow a set of laws that don't exist anywhere but in the imaginations of a set of judges and lawyers? Are people expected to dig up every relevant course case, read the decisions, and try to piece together the "common law" themselves? And of course hope that they aren't subject to a brand new precedent in their own case?
I'm not an expert but did some Googling:
That "ignorance of the law is not an excuse" is really only the case for common law crimes and their derivatives. These are crimes, such as murder, that offend general communal moral standards. In your case, you knew that killing people is usually wrong, that it's ok in self defense, and you realized that it's not immediately obivous when you can use lethal force, so you figured you should investigate. And you found some answers (compiled from statutes and case law) in the form of jury instructions and a book written by a lawyer. That's exactly how it's supposed to work: after living in our society long enough to become an adult, you know in broad strokes the difference between right and wrong, so you also know when you're in the gray area and need to ask questions.
This stuff goes back to the old Greece and Rome, wherepeople learned the law by participating in the culture and customs of the community. Thus it was unreasonable to believe a person could have avoided learning the. Cicero wrote the following in
On the Republic:
"There is a true law, right reason, agreeable to nature, known to all men, constant and eternal, which calls to duty by its precepts, deters from evil by its prohibition. This law cannot be departed from without guilt. Nor is there one law at Rome and another at Athens, one thing now and another afterward; but the same law, unchanging and eternal, binds all races of man and all times."
Plato wrote similarly in
Minos:
"What’s right is right and what’s wrong is wrong. And isn’t this believed by everyone ... even among the Persians, and always? ... What is fine, no doubt, is everywhere legislated as fine, and what is shameful as shameful; but not the shameful as fine or the fine as shameful."
For statutory requirements that do not offend general communal moral standards, due process requires notice, particularly when passivity or failure to act constitutes the criminal act. (This stuff is actually touched upon in the recent response to Comm2A's complaint in Draper v Coakley.) Ignorance of the law is an excuse when the law is a little known statutory command that can only be discovered by reading the statute. An exception exists where the crime involves activity that is inherently dangerous.
