… is from page 1871 of the late William Stuntz’s November 2000 Virginia Law Review article, “Self-Defeating Crimes” (footnote deleted):
Ordinary people do not have the time or training to learn the contents of criminal codes; indeed, even criminal law professors rarely know much about what conduct is and isn’t criminal in their jurisdictions. Criminal codes therefore do not and cannot speak to ordinary citizens directly. The mass of the population avoids seriously bad behavior not because they know it can be found in the codes, but because they know the behavior is thought to be seriously bad (and only secondarily because seriously bad behavior can often get you thrown in jail). For the most part, criminal law regulates actors in the legal system, while popular norms – morals – regulate the conduct of the citizenry.
DBx: The state – even the democratic state – creates legislation rather than law. Law, in contrast to legislation, emerges undesigned from human interactions and the expectations that thereby arise.
Individuals who are popularly identified as “lawbreakers” might indeed be lawbreakers, but, if so, these individuals are lawbreakers not merely because they violate legislation (which does exist in many instances to codify – but never to create – law). Violating the law requires acting contrary to the widely shared expectations of the members of the community in which the action occurs.
For Jones to be a genuine lawbreaker does not require that there be a statute on the books that Jones’s actions violate. Also, Jones’s violation, even when done intentionally, of a statute is not a necessary condition for Jones to be a lawbreaker. If you doubt me, ask yourself if you consider yourself to be appropriately described publicly as a “lawbreaker” because you often knowingly drive your automobile at speeds in excess of the posted speed limits.
No legislation is literally more ‘black letter’ than posted speed limits on roads, yet I – and the vast majority of other drivers – regularly and knowingly drive at speeds in excess of these posted speed limits. Are we American drivers villainous scofflaws unfit for society? Or is the actual law of the roads different from, and more nuanced than, the black-letter “law” of posted speed limits?
