There's an old saying, "Ignorance of the law is no excuse." It means the law applies whether or not you know the law exists. It's based on the idea that you have an obligation to know the law, and assumes that the law makes itself known.
But how does the law make itself known? We might say through books and official notices, which we are expected to read. But there's a difference between the law in the books and the law that is applied. We know the law that is applied from the cases where law manifests in a judgment. The cases become precedents—signposts to mark out the contours of what is legal from what is illegal.
Some years ago, sociologist Kai Erikson explored how the law makes itself known through cases. His 1966 book, Wayward Puritans, became a classic study of Puritan society in colonial New England; but his conclusions extended to all societies, all systems of conflict resolution. He said legal decision makers pick out cases that will mark the boundaries of what they consider acceptable (legal) behavior.
In earlier years, law professor Karl Llewellyn and anthropologist E. Adamson Hoebel proposed a similar understanding, based on a study of Cheyenne society. Their 1941 book, The Cheyenne Way, concluded that whatever form law takes, it always focuses on "trouble cases." The ways the Cheyenne resolve trouble is their law.
So the way we know the law is by watching decision-makers dealing with problems, starting with what they choose to call a problem. What do they do, for example, when a killing happens? Do they charge someone with murder or do they ignore it? Perhaps they actually promote the killing, or make excuses for it.
All of this discussion is a way to set the stage for a look at two recent events: an April 18 decision of the Guatemalan High Risk Court and an April 26 statement by a former prime minister of Canada. Each event tells us something about the law.
In Guatemala, the High Risk Court concluded a trial of former military dictator José Efrain Ríos Montt. The court convicted him of genocide and crimes against humanity for his actions against the Mayan Ixil population during Guatemala’s Civil War. It sentenced him to 80 years in prison.
The Guatemalan case is especially notable because it is the first time a former head of state has been tried for genocide by the state's own judicial system. This is a very high signpost about the boundaries of the law, notwithstanding the fact that there is an appeal process that will allow Montt to challenge the conviction. Criticism of the decision by current Guatemalan President Otto Perez Molina, who said that there was no genocide during the civil war, only adds to the status of the case as a boundary-marker, because Molina also said the government will respect the outcome of the legal system.
In Canada, former prime minister Paul Martin spoke before the federal Truth And Reconciliation Commission, saying, "Let us understand that what happened at the residential schools was the use of education for cultural genocide." He added, “I talked to a number of people here, to a number of members of Parliament and the question we asked ourselves was ‘how come we didn’t know.’ What made it so we didn’t know? I still can’t answer that.”
Part of the answer to Martin's question—the reason for his ignorance about the genocide—was evident in the fact that until ordered by a court the government had refused to turn over official archives of the residential school system to the Commission. When officials hide decisions, we cannot really know what the law is. In a sense, there is no law in such situations.
These events have implications for the United States. CNN reports that the Central Intelligence Agency assisted the Guatemalan military for years during the civil war, despite knowing of the atrocities being committed against the Ixil Mayans. The current State Department noted only that a "strong and transparent justice system [is] an essential component of democracy." There was no comment about U.S. support for Montt under the Reagan administration.
For reasons that remain to be explored, the U.S. Indian residential school system has not been subjected to the same intense scrutiny as the Canadian, though it operated, like the Canadian, on a policy of "civilizing" the Indians, with similar consequences. How many of us still "don't know"?
In the absence of visible legal decision-making, we may never know the contours of U.S. law about genocide, by the CIA or the federal Indian law system. We will be left to speculate about what U.S. law really is. We will have to imagine the invisible signposts. We will guess about what the law permits only by knowing what it does not prohibit.
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.