You're doing the exact thing I and drzaiusapelord are complaining about. No, what you're describing is not 'one of the most basic expectations of the legal system'. How would it be possible to capture social rules that have evolved over centuries and are supposed to cover an almost infinite set of circumstances and boundary conditions, and on which huge economics interests and grave personal consequences depend, in a couple of paragraphs of legislation? How would the case law fit into that? How could that work in a society where understanding the cooking instruction on a bake-it-yourself cake set are too difficult for a sizable part of society to understand? Law is not an algorithm that you can apply to a set of perfectly quantified variables. Nerds like to think it is, or at least that it should be, but that's just not how society (and by extension, law) works.
(I've been a nerd my whole life, professional programmer for 15 years and I did a law degree next to my job. I spend thousands of hours over the last 9 years studying law, and I still don't know shit, or at least not enough to write opinion pieces on it without supervision of someone more experienced. At least I've gotten to a point now where I recognize that I don't, and where I recognize bullshit when I see it).
Yes, of course it's still a basic expectation: http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat. Granted, it's been somewhat weakened nowadays, but the default is still that we're held responsible for compliance whether we know the law or not.
Really? Every society has always had every non-specialist in violation of some law despite their efforts to learn what was illegal? And this is an unavoidable aspect of reality?
Ah, the false dichotomy, another pinnacle of nerd legal reasoning :) (not using nerd as an insult, just as a general description of a too strictly logical frame of mind)
The point is not that everybody is always in some form of violation, the point is in uncertainty. There are always cases where to facts don't clearly map to the rules as they are written down, or where the facts are unclear or open for interpretation. In those cases, even specialists can't say if something is 'illegal', for a broad definition of the word 'illegal'. Despite the huge amount of legislation and case law we have nowadays, still not everything is covered; in the past, there was much more uncertainty than there is today, because much less was codified. And to answer your question, yes, uncertainty at the margins is an unavoidable aspect of reality.
This is also what bugs me about the commentary on the Megaupload case: people claiming that Dropbox might be next, because they too allow for sending data and don't have a way to search what's available. The fact of the matter is that it's about intent - the Megaupload people encouraged copyright infringement while hiding behind a thin layer of compliance veneer, whereas Dropbox doesn't, their main use truely is 'personal document storage'. Everybody who visited the Dropbox and Megaupload websites a few weeks ago could see so. Now the nerd reaction to the legal aspect is 'oh but there is no law that indicates the exact boundary between the two, so the Megaupload bust is illegal'. Back on planet reality however, softer interpretations of 'intent' and 'reasonable' etc. decide what crosses the line and what doesn't. Could Megaupload know in advance exactly how far they could go? No. Is that proof that our legal system doesn't work? No. If anything, it shows that people can get away with much, and that only egregious abuses wrt copyright infringement are prosecuted.
Yes, there was a false dichotomy, but it was on your side; I was just objecting to it.
Me: People should be able to tell with confidence (not perfect 100% confidence) whether they're breaking the law, yet today, nobody can have anything close to this.
You: That's an impossible ideal, the law performs about as well as it can be expected to.
Me: It's unreasonable to expect better? So everywhere people have been that uncertain of having violated the law?
You: False dichotomy! You prove I was right all along!
"Every society has always had every non-specialist in violation of some law" (emp mine)
The false dichotomy is in the absolutist phrasing of the question. Because obviously, the answer is 'no, not every society, always and every non-specialist'. The more nuanced answer is 'yes, at the margins in every legal system there is some sort of uncertainty'.
You claim
"yet today, nobody can have anything close to this."
which is nonsense. When I shoot somebody in the face because they took my parking spot yesterday, I can be as close to 100% sure as possible that I am guilty of 1st degree murder.
But for cases where either the law or the facts can be explained in several ways, or where there is simply so much factors to consider or things to know about to have a reasonable idea of what a 'just' outcome is, there is some uncertainty, which cannot be avoided. Your original claim was "One of the most basic expectations of the legal system is that a citizen should be able to know, with confidence, whether they're breaking the law based on a reasonable search of available resources on the matter, without having to contact a specialist (lawyer)." Which of course depends on your definition of 'reasonable search', but which for an 'average' definition of 'reasonable' (i.e., of you ask 100 people, the average of those), is not true. For example there are many tax related matter that are highly specialized, and for which it is completely reasonable to expect people to use professional services to make sure they get it right. Or, as another example, legal procedure - there are so many rules and customs that it's perfectly reasonable to not expect an average citizen to be able to figure it out, and require a licensed lawyer be used to perform certain tasks in legal proceedings. Etc.
You're showing the same kind of insubstantive pattern-matching I've come to see and expect from supposed legal experts. Here, you see an "extreme" argument and assume, purely on that basis, that there must be something wrong with it, and the truth is in some kind of "middle". But let's trace back what the actual exchange was.
1) I said (trying to start from a more general, uncontroversial figure of merit) that one sign of a bad legal system is that it fails to let people know, with (imperfect) confidence, and without "experts", whether they're breaking the law. This means breaking any law: remember, it's not praiseworthy that people can be certain about one particular law. What matters is whether they're certain they're not breaking any law, because you only need to break some law to be punished, not a particular one. It's little consolation that my interpretation of the murder laws was correct if they string me up on bizarre endangered species ones!
(Already you should see the irrelevance of your invocation of "but you can tell that killing over a parking spot is illegal", but perhaps I go that far given your legal expert self-identification and your contempt for the "geek" view!)
2) I then pointed out that currently, you can have no such confidence. This would be confidence that, "for all people, it is not the case that there exists one law that they are currently breaking (or breaking on a regular basis)". I substantiate this by pointing to the standard recommendation from experts.
3) You claim that it would be unreasonable to expect this of a legal system. (You further ignore the citing of the principle of "ignorance of the law is no excuse".) This would suggest that no society has pulled it off. But obviously, you can't defend such a position, so you substitute it (per the pattern-matching I mention at the beginning of the post) with the weaker standard that there is some uncertainty at some margins. But that was never in dispute!
4) So, it is clear that a) the standard I cited is reasonable, and b) many current legal systems violate it, making them no better at "the law" than the geeks whose legal expertise you ridicule,
At this point I should add that geeks already have set up existing systems for "how to do it right". Rather than, say, expect that everyone should closely follow libraries of laws and cases, they have the RFC system, which provides a public, since point of reference that is constantly, pro-actively reconciled with conflicting notions, rather than waiting years for the supreme court to have someone go through the dance to get a case before them and give them an excuse to talk about it.
No, it's not perfect, but it satisfies the basic requirements one ought to expect, in that it allows people to actually learn how to stay clear of conflict with a reasonable amount of effort and time.
Your claim was that in our current systems 'law' fails to be 'law' because one cannot be sure (with some margin) not to be breaking any law without contacting specialized advise. (the 'without specialized advise is irrelevant btw, because even with such advise one cannot be sure). The only situation that can be under discussion is at the margins. If you meant that nobody can ever be sure, then we're arguing different points - but in that case your argument is so trivial that I don't see why you'd bring it up in the first place.
My point is that 'law' is not a set of 100% clear rules that can mechanically be applied to any situation, after which the 'just' result will come out (to frame this within more common academic terms, I oppose Montesquieu's 'bouche de la loi' theory of law finding). There will always be cases where a 'reasonable' interpretation of the word of the law needs to be used. For people at the margins of the known rules (Megaupload), this means they cannot be sure how far they can go before they break the law. Nor, which is related but not the same, how far they can go before being prosecuted. This is not a symptom that law is failing. I'm not sure what your point is with other societies; if you think there are any that have completely closed systems, please name it, otherwise I will assume that we agree that there haven't been any.
The "ignorance of the law" comment is irrelevant, which is why I ignored it. It's a procedural principle, it has little to do with this discussion. It just means that you can't use ignorance about the law as an excuse to not be convicted. It doesn't mean that everybody needs to know everything about the law.
Finally, if you're suggesting that the RFC process is anything similar to law, you're basically making my point of you not understanding the profound nature of law for me. RFC's describe a very narrow, technical, deterministic aspect or format of internet-related concepts and formats. RFC compliance is voluntary and there are little to no consequences when people don't follow them or implement them wrong. The process is opaque, considers only the interests of those motivated and intelligent enough to participate and the results still are full of ambiguities and wrong choices. This is like saying 'oh the infrastructure for Google search can't be that hard, after all I can host a Wordpress blog on the Pentium 3 in my basement'. Even if, for the casual observer, the two look the same from the outside, their nature is fundamentally different.
(I've been a nerd my whole life, professional programmer for 15 years and I did a law degree next to my job. I spend thousands of hours over the last 9 years studying law, and I still don't know shit, or at least not enough to write opinion pieces on it without supervision of someone more experienced. At least I've gotten to a point now where I recognize that I don't, and where I recognize bullshit when I see it).