Ignorance as an Excuse

Robert Bass

A Rationale for a No-Excuse Requirement

Consider the maxim that ignorance of the law is no excuse. (Call it the No-Excuse Requirement.) This or something very much like it is part of most legal systems.¹ How might this be regarded? There are at least three fairly obvious responses. First, it may seem so familiar as not to be worthy of attention. Most of us have heard it repeated many times since childhood and, often enough, have had first-hand experience of its application. Thus, we are unsurprised to hear it and raise few questions about it.

A second response, if it does strike our attention, may be surprise. Just why doesn't ignorance excuse? In the case of moral responsibility, ignorance, if it is not culpable, is normally taken to be a completely satisfactory excuse. In fact, it may be an understatement to call it an excuse. I may, for example, be in a position in which there is nearby a child drowning whom I could easily save. If I knew that she was there, I would have an obligation² to make the attempt to save her. If, however, I do not know that she is there, I have no obligation to save her (not merely an excuse - such as fear of the water - for not saving her.) There are, of course, numerous difficulties in spelling out what are and are not cases of culpable ignorance, but there is no reason to doubt that, culpable ignorance excluded, one is not morally responsible for failing to fulfill an obligation of which one is ignorant.³ But if this is the case with moral responsibility, why does it not apply in law?⁴

Having considered the question why ignorance does not excuse in law, a third response seems appropriate: There are powerful consequentialist reasons for not counting ignorance as an excuse. It is, in general, difficult to disprove ignorance. If ignorance were (generally) allowed as an excuse, it may safely be predicted that judicial process, at least in the criminal courts, would slow or stop. The courts would be swamped with claims that accused offenders were unaware of the law prohibiting some action to or requiring some performance of them.

It is worth asking if a legal system could work (without unacceptably costly delays) in the absence of the No-Excuse Requirement. If we could be satisfied with nothing less than a conclusive answer ... we will probably have to go unsatisfied. However, if we focus on the particular disadvantage avoided by way of the No-Excuse Requirement, costly or paralyzing delays in (at least) the criminal courts, some reason can be provided for thinking that alternative sets of rules would do no better. Suppose, for example, that ignorance is allowed as an excuse but that the burden of proof for ignorance is placed upon the defendant. If reasonably high standards of proof are required, it will not be significantly easier for defendants to prove ignorance than for the state to prove knowledge. In that case, presumably, most defendants would not try. Still, it seems likely that if standards of proof are not set impossibly high - which would amount to a de facto No-Excuse Requirement - there would be delays in cases in which large penalties could be imposed (and, therefore, possibly avoided), for then, even a small chance of succeeding with a plea of ignorance could seem worthwhile to a defendant.

On the whole, my guess would be that legal systems that allowed a plea of ignorance would, other things being equal, be slower in dealing with (at least) criminal cases and would have no compensating advantages. If this is correct, then the consequentialist case for imposing the No-Excuse Requirement stands.

Background Assumptions

What I wish to consider is the conditions under which it is reasonable to impose such a requirement. That is, taking it for granted that some version of the No-Excuse Requirement will be imposed in a legal system that is meant to apply to the actions and interactions of large numbers of normal human beings, what else needs to be true in or characteristic of that system of law to prevent it from being the case that disallowing ignorance as an excuse imposes an unreasonable requirement?

Two questions might be raised about this. First, what sense is to be attached to "what needs to be true"? I take the relevant sense to be closely akin to what James Child has called "practical necessity" in discussing the relation between the rule of law and liberalism. As an attempted gloss, I would say that what needs to be true for it to be reasonable to impose the No-Excuse Requirement is what needs to be true if the law is to meet standards of moral acceptability that are (I take it) the subject of a broad consensus. Since I take that consensus to be correct, I would say that a system of law that did not meet those standards would not be morally acceptable.⁵

Second, what kind of argument do I aspire to provide? For the most part, I shall try to offer arguments that make it plausible that the No-Excuse Requirement could not be reasonably imposed if the system of law did not meet some further condition, but there will typically be much more that could be said (I think) to strengthen the argument. What I hope to do here is not to provide an airtight case for any of the conditions but to sketch a number of arguments that, if fully developed, would show (if I am correct about where they lead) that quite a lot can be "derived" from the simple assumption that it must be reasonable to impose the No-Excuse Requirement.

There are a couple of further presuppositions that need to be mentioned at somewhat greater length - which may be called the Good Faith Assumption and the General Welfare Assumption.

When speaking of the conditions under which it is reasonable to impose the No-Excuse Requirement, I am invoking the Good Faith Assumption. I mean to refer to the conditions under which it is reasonable to impose it upon those, presumably the bulk of the citizenry to which a system of law applies, who are in general disposed to obey the law. Under normal circumstances, they will make good-faith efforts to comply with legal requirements and are thus specially burdened by the fact that they can be held liable for acts which they did not know to be legally forbidden. Such persons can correctly claim that, had they known the law, they would have obeyed. For those who are not disposed to comply, the No-Excuse Requirement may make it more difficult for them to avoid punishment or penalty, but they would have broken the law whether or not it was in place.

I am also assuming that this group, the portion of the citizenry generally disposed to obey the law, has good reasons for supporting and being disposed to comply with the law and that those good reasons are not simply a matter of being faced with overwhelming power on the part of the state. This is a General Welfare Assumption, that there is some good reason, expressible somehow in terms of contribution to general welfare, for having a system of law. If there is not, there is also, of course, no reason for having the No-Excuse Requirement (except perhaps that it might be convenient to authorities).

What I shall claim is that a surprisingly large amount is needed for it to be reasonable to impose the No-Excuse Requirement. Specifically, many, though hardly all, of the conditions usually associated with the rule of law can be "derived" as reasonability-conditions for the imposition of the requirement.


If the No-Excuse Requirement is Reasonable ...

We can begin with the obvious. For it to be reasonable to impose the No-Excuse Requirement, the law must be promulgated.⁶ It would be unreasonable to reject ignorance as an excuse if there were no way that a citizen could remedy his ignorance. The law must be available to be known.

For essentially the same reason or perhaps as an aspect of the same requirement, there can be no ex post facto laws. There is a slight difference in that ex post facto laws may be promulgated. A legislature could certainly publish one in whatever is considered to be an appropriate medium. The problem is that some actions occurring before such publication would be covered by it, and, in the case of those actions, the citizenry would have no way of knowing that they were acting in violation of a yet to be published (or enacted) law.

Third, in order for it to be reasonable to impose the No-Excuse Requirement, the law must be unambiguous. It must be sufficiently clear that citizens cannot reasonably interpret the law in two or more divergent ways. If they can interpret the same law differently so that what is required on one reasonable interpretation is not required on another equally reasonable interpretation, then they do not know what the law requires of them. And since at least one other interpretation is as reasonable, they cannot know. Whether they then comply or fail to comply with legislative intention or with the way in which it is enforced by the courts is a matter of chance.

Fourth, it seems that it would be unreasonable to impose the No-Excuse Requirement if the laws are not, in general, stable. Change in the law must be relatively slow. A citizen who makes a good-faith effort to find out what the applicable law is and to comply with it should, generally, be able to count upon it not having changed since he found out. There will be exceptions to this, of course, for otherwise, law once enacted could never be changed. But if the exceptions are not relatively rare, then it would not be reasonable to hold citizens to the No-Excuse Requirement.

Fifth, if stability is important in the system of law, there is an indirect argument for generality in the law. If the law is to be stable and also important in the sense of dealing with a wide class of actions in which citizens engage, then there is little alternative but for it to be general, to apply the same rules to many abstractly characterized situations. Perhaps, if there were an extraordinarily wise, benevolent and well-informed legislator it is conceivable that the law should consist of nothing but particular commands, directing this or that person to some specific performance. But, in the absence of such improbably and reliably wise, benevolent and well-informed legislators, it seems that the only way to deal with large numbers of cases is in terms of general rules.⁷

Conclusion

There is certainly more that could be said with respect to any of these conditions. There are also, I think, likely to be further arguments of the same sort in favor of additional conditions. What is interesting is that from what appears to be so minimal a starting point, so much can be gotten, especially when the "so much" looks very much like a number of standard conditions for the rule of law: that law should be promulgated, in advance, that it should be unambiguous, stable, and general in form.
What is doing the work here? How is it that we can get so much? I suspect that the answer is that the starting point is actually quite a strong assumption. It is true that there are powerful consequentialist reasons for imposing some form of a No-Excuse Requirement. However, there are deep tensions between a No-Excuse Requirement and what we ordinarily take to be morally appropriate or acceptable. Moreover, these are not simply resolvable tensions. There is not available a clever reconciliation which will reveal that if only we understand things properly, we will see that there is no conflict. Instead, as long as there is a system of law incorporating a No-Excuse Requirement, we can expect that there will be cases in which persons are subjected to punishment or penalty entirely in accordance with the legitimate rules and procedures of the legal system, although they have not in any way morally deserved it, have not been derelict in any duty, have not failed to make any reasonable efforts to discover what they were legally required to do. It is the attempt to resolve such tensions, to make the imposition of a No-Excuse Requirement as morally acceptable as possible, that generates the further conditions.

Comments? I'd love to hear.

1 There may be and are some fairly tightly circumscribed exceptions. There may also be some fuzziness in distinguishing cases in which ignorance may be an excuse from those in which it may not. But my concern is with the broad class of cases in which it is not permitted as an excuse and it is to such cases that I will be referring in the remainder of this paper.

2 I am using "obligation" here to indicate what one has some moral responsibility to do. Finer distinctions between, say, obligations, duties, requirements, supererogatory acts, etc., are not needed for present purposes.

3 Perhaps it is better to put this in the form that if one is non-culpably ignorant, one is not morally responsible for fulfilling the obligation that one would have had if one were not ignorant in that way. For the sake of less cluttered prose, I will continue to speak of ignorance of obligations rather than of ignorance of subjunctive obligations.

It might be noted that there are three ways in which one could be non-culpably ignorant of an obligation. One could be ignorant that one has an obligation of a certain sort, for example, by not realizing that it follows from correct moral principles (or, perhaps, from principles one accepts). One could be ignorant of circumstances that make it the case that one has the obligation. And, of course, one might be ignorant of both together.

4 There may be a hint of paradox here. If, in accordance with correct moral principles (whatever they are), one has as a moral obligation the fulfillment of all of the obligations imposed upon one by an ideal legal system, and if an ideal legal system would impose some obligations on those who are ignorant but not culpably ignorant of its requirements, then it will turn out that there may be some obligations which one both has, due to the legal system, and lacks, due to one's non-culpable ignorance.

However, there are at least three ways to avoid the conclusion corresponding to different ways of denying at least one of the premises. It can be denied that an ideal legal system would impose such requirements (not likely to succeed in my judgment), denied that non-culpable ignorance excuses under correct moral principles (less likely to succeed), or denied that we are morally obligated to fulfill all the legal obligations of even an ideal legal system (which I think is correct).

5 Whether the moral unacceptability of a system of law is a sufficient reason for opposing it, trying to reform it, disobeying its requirements, etc., is a separate question which I will not address.

6 Strictly speaking, I think we can imagine an exception to this. It may be that some requirements or prohibitions are so obviously reasonable that any citizen could be expected to recognize and comply with them whether or not he was aware of any law imposing them. A prohibition of murder might serve as an example. (If, as some philosophers and anthropologists might contend, there are no truly obviously reasonable requirements, even when relativized to people who share a common culture, that is a further reason for a promulgation requirement.)

7 Remember that I am assuming that the legal system is somehow contributory to the general welfare. Many systems with broad scope but few general rules can be imagined if there is no requirement that the system contribute to general welfare.