B. The Concept of Notice

Why do societies adopt systems of law? Why do we need law? The most logical answer is that law promotes an orderly society. When members of a society know what is expected of them, they can tailor their behavior accordingly.

One of the most profound concepts in American jurisprudence is due process. Your right of due process entitles you to all the steps or rights that the law allows (you are "due" all the "process" of the law). The constitutional right of due process ensures that you are given all your other constitutional rights.

A major component of due process is the concept of notice. Notice means many things, but includes the ideas that the government cannot pass laws in secret; that you are entitled to know the laws that apply to you, and that you are entitled to know what violation of law you are being charged with. Why are you entitled to notice? So that you can tailor your behavior accordingly.

There are two kinds of notice—actual notice and constructive notice. Actual notice means that you actually know what the law says. Whether you have read the law, been told of it, or read an account of it in the newspaper—you know about the law. When you have driven by a sign that says, "Speed Limit 45 MPH", you have gained actual notice of that law.

Since you are entitled to notice, does this mean that if you don't know the law it cannot be applied to you? Of course not. Remember the saying, "Ignorance of the law is no excuse?" No person can actually know all the law that exists. This brings us to the concept of constructive notice. You are expected to educate yourself about all the law that applies to you. If you take up the hobby of hunting, you are expected to learn all the laws that pertain to hunting and gun ownership. Even if you do not do so, knowledge of those laws is imputed to you. You are on constructive notice that those laws exist and apply to you.

In order for constructive notice to work, you need access to the laws that exist. Therefore, a requirement of notice is that the government publish all the laws that are passed. If the government has passed a law that is constitutionally sound and has published it, you have notice of that law—even if you do not actually know that the law exists.