The Paradox Of Legality: Can A Law Be Illegal?

The concept of legality is a complex and dynamic topic that varies across different legal systems and jurisdictions. In the context of whether a law can be illegal, it is essential to understand the underlying principles and frameworks that govern the creation and enforcement of laws. In Australia, for example, the rule of law is a fundamental aspect of its democracy and legal system, emphasizing the equality of all citizens before the law, including those who make the laws. This principle, established in the Australian Constitution, ensures that laws are accessible, understandable, and applicable to everyone, with the High Court of Australia serving as the ultimate arbiter of the limits of parliamentary power. Similarly, in the United Kingdom, the former Ram Doctrine suggested that public authorities were limited to the powers explicitly granted to them by law, implying that any action not expressly permitted was forbidden. However, this doctrine has been criticized and largely superseded by subsequent legislation and interpretations. These examples highlight the evolving nature of legal doctrines and the ongoing debate surrounding the boundaries and limitations of legal authority.

Characteristics of 'Can a law be illegal'

Ignorance or mistake of the law

While it is generally true that ignorance or mistake about the existence or application of legislation creating an offence is no excuse, there are certain circumstances in which a person's ignorance or mistake of the law can absolve them of criminal responsibility.

For example, if a person is ignorant or mistaken about an Act that directly or indirectly creates an offence or affects the scope or operation of an offence, they may not be criminally responsible if the Act is expressly or impliedly to the contrary effect, or if their ignorance or mistake negates a fault element that applies to a physical element of the offence.

Additionally, there are two provisions that allow for mistake or ignorance of the law to defeat criminal responsibility. The first is that Parliament might provide a defence, excuse, or exception to liability for individuals whose breach of a statutory prohibition results from mistake or ignorance of the law. The second provision reiterates the "truism" that a defendant's mistake or ignorance of the law might make it impossible for the prosecution to establish fault. This is particularly relevant in offences requiring proof of conduct affecting "property belonging to another".

Furthermore, while ignorance or mistake of fact is generally not a valid defence, there are instances where it can be considered. For example, Section 9.4 provides a defence for individuals who commit offences as a consequence of inadequate publication of subordinate legislation. Similarly, Section 9.2 - Mistake of fact (strict liability) - allows for a defence of reasonable mistake of fact, provided it meets the requirements of conscious inquiry and the exercise of reasonable judgment.

Criminal responsibility

To establish criminal responsibility for an illegal act, the prosecution must prove that the person either acted with the intention of performing the act, or that the person acted recklessly or negligently. A person acts with intention when they do so purposely and knowingly. Recklessness refers to taking risks that are objectively unjustifiable given the circumstances of the act that the person is aware of. Negligence, on the other hand, involves taking risks that are objectively unjustifiable considering the circumstances the person is aware of, even if the person is not cognizant of all the risks involved.

In certain situations, an action that would otherwise be deemed a crime may be lawful. Among the defences the accused can raise to avoid criminal responsibility are self-defence, necessity, intoxication, duress, mistake of law or fact, and mental incompetency. Mistake of law is a defence against criminal responsibility in four specific circumstances: when the law hasn't yet been published, when the law was later overturned or deemed unconstitutional, when the judicial decision the defendant relied on was later overturned, and when the law is unclear or confusing.

If the person didn’t act with the intent to break the law, or in a way that showed reckless and willful disregard for the safety of others, then their act can’t be labelled criminal. However, even if the person wasn’t aware that their action was against the law, if they intended the action, then the person possessed the mens rea required to be convicted of the crime.

Rule of law

The concept of the "rule of law" is a political and legal ideal that can be traced back to ancient civilisations, including ancient Greece, Mesopotamia, India, and Rome. The idea is that all people and institutions within a political body are subject to the same laws, including lawmakers, government officials, and judges. This is often stated as "no one is above the law" or "all are equal before the law".

The rule of law is not just about government, but also about citizens' respect for and compliance with the law. This respect for the law can be undermined if laws become too difficult or impossible to follow. The law should be clear, publicised, and stable, and it should be applied uniformly and predictably. It is also important that the processes by which laws are made and enforced are accessible, fair, and efficient.

In the United States, the federal courts were designed to be an "intermediate body" between the people and their legislature, ensuring that the people's representatives act within the authority granted to them by the Constitution. The U.S. Constitution is the nation's fundamental law, codifying the core values of the people, and the courts are responsible for interpreting its meaning, as well as the meaning of any laws passed by Congress.

The rule of law is the foundation for communities of justice, opportunity, and peace, and it affects everyone, underpinning development, accountable government, and respect for fundamental rights. It is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.

The Ram Doctrine

The restrictions on local authorities were lifted by the Localism Act 2011, which granted a "general power of competence" to local authorities. This act abrogated the principle of the Ram Doctrine in the United Kingdom. A 2013 House of Lords Constitution Committee report suggested that Ram's memorandum is not an accurate depiction of the law today and that the phrase "the Ram doctrine" is inaccurate and should no longer be used.

In German law, a similar argument is made that a juristic construction is not applicable if the law does not state its existence. This argument is supported by the German constitution, which protects the general freedom to act.

Public authorities and sovereign states

The concept of a "sovereign citizen" is a belief system held by a number of extremist groups and individuals in the United States. Sovereign citizens believe that the legitimate government and legal system have been replaced by illegitimate authorities, and that the state is not an actual government but a corporation. They believe that statutory law is a contract binding people to the state, and that people are tricked into this contract through various methods such as Social Security numbers, fishing licenses, or ZIP codes. Sovereign citizens believe that they can opt out of this contract and make themselves immune from the laws they do not wish to follow. They often attempt to negate the authority of police officers or other officials by saying "I do not consent".

The sovereign citizen movement has no central leadership, established doctrine, or defining text. However, there are common themes and beliefs, including that taxes and licenses are illegitimate. The movement's theories are influenced by a variety of sources, including the Uniform Commercial Code, the Articles of Confederation, the Magna Carta, the Bible, and foreign treaties. Some sovereign citizens are affiliated with a group within the movement, while others follow the teachings of a specific "guru" or act on their own.

Sovereign citizens regularly come into conflict with government institutions, particularly law enforcement. They often cite the US Constitution or common law statutes that they interpret as supporting their anti-government and anti-authority agendas. The Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS) track sovereign citizens to some degree and consider them a terrorist threat. The DHS defines sovereign citizen extremists as "groups or individuals who facilitate or engage in acts of violence directed at public officials, financial institutions, and government facilities in support of their belief that...they are immune from federal, state, and local laws".

In summary, the sovereign citizen movement in the United States is a collection of extremist beliefs and groups that reject the legitimacy of the government and legal system. Sovereign citizens believe they are immune from the laws they do not wish to follow and often come into conflict with public authorities. The movement is considered a terrorist threat by the FBI and is tracked by both the FBI and DHS.

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