Juris North 2025 Annual Lecture

Wednesday 26th November, 1pm, at Aberdeen Law School (online participation will be available for those who may not be able to join us in person).

• Keynote Speaker: Luís Duarte d’Almeida (NOVA School of Law, Lisbon; University of Edinburgh).
• Chair: Peter Cserne (Aberdeen Law School)

Abstract

How can you know how you ought legally to behave? The answer may seem simple: just look at the laws of your country. If a law requires some action, you legally ought to perform it. If a law forbids it, you legally ought not to perform it. And if no law either requires or forbids it, you neither ought nor ought not to do so. This answer may well reflect most people’s views about the law. Yet it is not how lawyers think or courts decide. When lawyers argue before courts, and courts argue for their verdicts, their arguments are varied and complex, and their conclusions can surprise lay people. Can it be that most of us do not really know the law?

This divide between how lawyers and lay people think about what law and how it works carries jurisprudential implications. Some are well explored. When it comes to discussing what counts as valid law in a jurisdiction, for example, many theorists think that it is the attitudes of legal officials, not those of legal subjects in general, that matter. (The view that ‘if you want to know the law’, you must look at it as a ‘bad’ person, however, has also, famously, been voiced.) But does it mean that legal subjects have a different concept of law than do officials?

As to the epistemic gap, is it simply unavoidable? After all, a proper understanding of how a law can be relied upon to justify conclusions about the legal duties, rights, and liberties we actually do have relies on a range of interpretative techniques, theories, normative commitments, and skills—and maybe even virtues­—that those without legal training cannot be expected to acquire or develop. But then what are the normative implications? If citizens are pervasively mistaken about—or ignorant of—what the law is, how does that fit with our standard views on what the rule of law requires? Is the rule of law consistent with legal subjects not being able to know what duties, rights and liberties they have under the law? And what should we make of the age-old “principle”—itself sometimes enshrined in legislation—that ignorance of the law is no excuse?

Laws themselves are often written in a way that makes it them far from accessible to citizens, and there have long been calls for laws to be more ‘plainly’ written. But these demands, too, seem predicated on the false assumption that plainly written laws would enable us, by reading them, to know the duties, rights and liberties they give us. At any rate, whatever sort of ‘knowledge’ citizens may be said to have about the law, it is typically not acquired by actually reading statutes or case law—not to mention that it might well be humanly impossible for any one person, even a trained lawyer, to track and read all laws that already do apply to them. What would further clarity achieve?

Or should we say that the law simply works very differently in its general action-guiding function and when relied upon by courts justifying judicial decisions? Is the epistemic gap a feature, rather than a flaw, of legal systems? Is law opaque by design? And if so—is it normatively a good feature? Or one we should denounce (perhaps as a strategy for promoting compliance, acceptance, and deference towards those in positions of power)?

At the same time, it is also an open question whether lawyers themselves can be said to have knowledge of the law. There are many things they can know about the law: social facts about statutes, about what courts have decided and the reasons they have given, about different possible methods of interpreting them, about the history of their legal systems, and so on. They may also be able to predict what a court will decide on any given question with a high success rate. But knowledge of such facts does not by itself amount to knowledge of what the law—normatively considered, and correctly interpreted—is; of its normative effects for us all. If there can be knowledge proper of the law, what does it turn on?

Enruires: [email protected]

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