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Published online by Cambridge University Press: 15 June 2016
In most common-law and civil-law jurisdictions, mistakes of law do not excuse. That is, the fact that one was ignorant of the content or requirements of some law does not excuse violations of that law. Many have argued that this doctrine is mistaken. In particular, many have argued that if an individual's ignorance or false belief is blameless, if she held the false belief reasonably, then she ought to be able to use that ignorance as an excuse for violating the law. It is much harder to find defenders of the doctrine, despite its prevalence. Pragmatic considerations are occasionally offered on its behalf, but these are generally not impressive. In this paper, I consider a more direct kind of justification for the doctrine, one that attempts to identify something more immediately normatively objectionable about being ignorant of the law. In particular, I consider an argument that suggests that legal ignorance is more like moral ignorance than like nonmoral ignorance and maintains that even nonculpable moral ignorance does not excuse.
1 Grace, Bruce R., Ignorance of the Law as an Excuse, 86 Colum . L. Rev. 1392–1416 (1986)Google Scholar (“due process requires a defense of reasonable mistake regarding laws that criminalize ordinary behavior”); Douglas Husak, Philosophy of Criminal Law (1987), at 56–58 (“perhaps ignorance of the law should constitute a defense when it is reasonable or without fault”); Husak, Douglas & von Hirsch, Andrew, Culpability and Mistake of Law , in Action and Value in Criminal Law 157–174 (Shute, Stephen, Gardner, John & Horder, Jeremy eds., 1993)Google Scholar, at 173 (“a defendant who is ignorant of the applicable legal rule, and has a bona fide belief that his conduct is not injurious or wrong, should ordinarily be excused if his legal mistake was a reasonable one in the circumstances”).
2 One recent but, I think, ultimately unsuccessful attempt to defend the doctrine is provided in Yaffe, Gideon, Excusing Mistakes of Law , 9 Philosophers’ Imprint 1–22 (2009)Google Scholar. For discussion of why I think this attempt is unsuccessful, see Guerrero, Alexander A., Deliberation, Responsibility, and Excusing Mistakes of Law , 6 Jurisprudence 81–94 (2015)Google Scholar.
3 I make this point in Guerrero, Alexander A., Don't Know, Don't Kill: Moral Ignorance, Uncertainty, and Caution , 136 Phil. Stud. 59–97 (2007)CrossRefGoogle Scholar.
4 Zimmerman, Michael, Moral Responsibility and Ignorance , 107 Ethics 410–426 (1997)CrossRefGoogle Scholar.
5 Rosen, Gideon, Culpability and Ignorance , 103 Proc. Aristotelian Soc'y 61–84 (2003)CrossRefGoogle Scholar.
6 Nomy Arpaly, Unprincipled Virtue (2003), at 77–104.
7 Hieronymi, Pamela, Reflection and Responsibility , 42 Phil. & Pub. Aff. 3–41 (2014)CrossRefGoogle Scholar, at 19.
8 Harman, Elizabeth, Does Moral Ignorance Exculpate? 24 Ratio 443–468 (2011)CrossRefGoogle Scholar, at 460.
9 Hieronymi, supra note 7, at 35.
10 Harman, supra note 8, at 459.
11 Elizabeth Harman, Ethics Is Hard! What Follows? (unpublished manuscript), available at: https://web.archive.org/web/20160111150356/http://www.princeton.edu/~eharman/Ethics%20Is%20Hard%20020714%20For%20Web.pdf.
12 These are both from Harman, Ethics Is Hard!, supra note 11, at 4–5.
13 This example is discussed at length by, among others, Moody-Adams, Michelle, Culture, Responsibility, and Affected Ignorance , 104 Ethics 291–309 (1994)Google Scholar; and Rosen, Gideon, Culpability and Ignorance , 103 Proc. Aristotelian Soc'y (2003)Google Scholar, Part I.
14 Yaffe, supra note 2, at 13.
15 Travers, Michael L., Mistake of Law in Mala Prohibita Crimes , 62 U. Chi. L. Rev. 1301–1331 (1995)Google Scholar; Kahan, Dan N., Ignorance of Law Is an Excuse—But Only for the Virtuous , 96 Mich. L. Rev. 127–154 (1997)Google Scholar.
16 Discussed at length in Yaffe, supra note 2, at 13–17.
17 John Simmons, A., Justification and Legitimacy , 109 Ethics 739–771 (1999)CrossRefGoogle Scholar, at 746.
18 Ronald Dworkin, Law's Empire (1986), at 191.
19 Jeremy Waldron, The Dignity of Legislation (1999), at 2.
20 It seems more promising, for example, than the idea that avoiding ignorance of the law is a duty of citizenship. See Andrew Ashworth, Principles of Criminal Law (1991), at 209, for this suggestion. In particular, it avoids positing an additional moral duty, which then raises the question of whether the agent was reasonably ignorant of that duty. Instead, it looks to what might be directly morally objectionable about blamelessly violating the law or having a false belief about the law and suggests that individuals can be held morally blameworthy for failures in that regard, even if they were blamelessly ignorant. As Douglas Husak puts the objection to the duty of citizenship view:
Ultimately, this strategy holds someone blameworthy for violating a moral requirement of which he is unaware. If it is fair to blame an agent for not complying with a duty of which he is unaware, why not appeal to a dismissive strategy at the outset? An earlier appeal would avoid the need to posit controversial and ill-defined duties of citizenship that appear to do no real work inasmuch as agents are eventually held blameworthy for violating requirements of which they are ignorant.
Husak, Douglas N., Ignorance of Law and Duties of Citizenship , 14 Legal Stud. 105–115 (1994)CrossRefGoogle Scholar, at 110. The Arpaly, Harman, and Hieronymi constitutivist approach can be seen as a way of supporting the strategy that Husak outlines.
21 For discussion of this point, see Alexander A. Guerrero, Intellectual Difficulty and Moral Responsibility, in Responsibility: The Epistemic Condition (Philip Robichaud & Jan Willem Wieland eds., forthcoming 2016).
22 George Fletcher, Rethinking Criminal Law (2000), at 731–732 (“in a pluralistic society, saddled with criminal sanctions affecting every area of life, one cannot expect that everyone know what is criminal and what is not”).