Chapter 5: The Fundamental Theoretical Underpinnings of the Right of Free Access to Public Legal Information eBook and Book (Paperback)

The study focused on the first three concepts (the ascertainment of indigenous customary law and the other two concepts are discussed in volumes 2 and 3 of the Human Right of Free Access to Public Legal Information Book Series). A doctrinal analysis of Lon Fuller’s theory of legality, which is the preferred version of the theory of legal certainty because of its comprehensive coverage, revealed that six of his eight principles of legality (i.e. those on secret laws, retroactive laws, unintelligible laws, laws that command the impossible, non-existent laws, and laws that change every minute) underpin the concept of the right of free access to public legal information. The study also found that the ancient and modern doctrine of ignorance of the law is no excuse for violating any provision of the law is based on the presumption that every person knows the law, and that presumption is itself based on the existence of free adequate access to all categories of law. The provision of such access to law is every government’s exclusive moral and legal duty under the rule of law, and that duty precedes the citizens’ duty to obey the law, thus making it a condition precedent to the just application of the doctrine of ignorance of the law is no excuse. To remedy the grave injustice in the unjust application of that doctrine, the study proposes the counterbalancing defence of ignorance of inaccessible law is an excuse and makes the appropriate law-reform recommendation for an international human rights legal framework that can promote its universal recognition and application in the global system of criminal justice. That framework should be such that can create and enforce, within the limits of international law, the international human rights obligations of all governments worldwide to provide the required adequate access to their public legal information.

Keywords: Human right of free access to public legal information (Theoretical framework), Right of free access to law (Theoretical framework), Huricompatisation customary law ascertainment, Proposed doctrine of ignorance of the law is an excuse, Theory of legal certainty (Lon Fuller’s theory of legality), Duty-right relationship between the state and the people (The rule of law)