The law of ignorance

IF YOU were to ask an expert on law if ignorance of the law was an excuse for breaking the law, they’d probably say that it wasn’t. Ignorance is generally taken to be no defence in cases of apparent lawbreaking. The idea behind this prohibition on relying upon ignorance as a defence is the utilitarian fear that a licence to rely on ignorance could promote ignorance. If I can’t be sent down when it can be shown I didn’t know of a law’s application, then it’s in my interest to know as little as possible about the law. A generally ignorant citizenry has a lower overall worth than an informed one, so promoting ignorance must be avoided.

However, another commonplace of the legal profession when it comes to matters of criminal responsibility is the dictum acts non facit reum nisi mens sit rea, meaning guilt cannot be ascribed where the mind is not guilty too. In other words, to be criminally responsible you need to do something in breach of the law, and mean so to do. So if I make a mistake that leads to something outlawed as an outcome, despite my ‘committing the crime’ I am not necessarily criminally responsible. Likewise, if I fail to act when I ought to and in so failing bring about something illegal, I’m not necessarily criminally responsible. And again, if I have some sort of contraband in my possession, but am unaware of its illicit nature, I’m not necessarily guilty of a crime. Presumably, then, there is a defence of ignorance despite acts reus if there is an absence of mens rea.

In the case of committing a criminal act it would seem incumbent upon me as a citizen to be informed of exactly what is prohibited in the jurisdiction where I am at any point. This would need to be so in cases where ignorance is no excuse. Similarly, should my omission be able to stand as a guilty one then I need to always be appraised of my duties at any time. For example, should I be entering a new town, I better find out if they have a ‘Good Samaritan’ law. If I fail to act when I legally ought to, even though it is through ignorance, I’m guilty. Finally, I really should investigate what substances, books etc. are outlawed in any particular reason should I wish not to become liable through ignorance for the objects in my possession.

This sounds like a pretty big demand in terms of knowledge. It is even more so when travel between jurisdictions is considered. And there are also areas of complex law, to do with tax and finance generally that vex the minds of the finest jurisprudentists. How could anyone really be fully appraised of all of this? It would seem that not allowing ignorance of the law as an excuse would be wholly unreasonable. If I don’t intend to break a law by way of my acts, omissions or possessions then it seems utterly unfair that I should be held responsible for them. Really, if I don’t know it’s wrong, how can I be responsible?

In law, the separation between law and morality is widely held to be an important one. The law is the law, whereas value judgements are thought to be flighty individualistic things. Like taste, or style. The law needs more substance than mere value judgement. It is this that can explain the situation where I can’t rely on ignorance to get me out of trouble. The key is in the terminology. I can perfectly well rely upon ignorance of the law as an excuse for an action and can happily rest assured that I am not at fault thereby. In court, however, it will be put to me that my action is excused morally but nonetheless entails legal consequences. On at least one interpretation of the word ‘reponsiblity’ I might well not have any, but this doesn’t neatly mean I will not be held to account for what I have done. While I may be a good person despite my apparently illegal acts, I might have to be one in prison.

The separation of law and morality, however, isn’t as clear as many would make it out to be. Decisions of any sort usually involve interpretations, and how one interprets is a complex product of nature, nurture and present context. In a very real sense, then, what you determine in any decision is somewhat a reflection of you. It is a value judgement. Is this any different in law? In reaching a legal decision, a judge must interpret statute, precedent and the facts of the case. Typically, the defence and prosecution will make it their business to dispute the ‘facts’ and in looking to statute and precedent a judge will have to decide which laws and previous cases seem most relevant to the case at hand. So there are at least three domains of interpretation going on in any legal decision. Moreover, given the possibility and the history of previous decisions being overturned and new precedent being set, the objectivity of the law looks deeply questionable. If the law can deliver different outcomes in like cases over time, today’s case could in principle be settled differently to yesterday’s. What it looks like we have in legal decision-making is a special case of ordinary decision-making, special owing to the manner of circumscription and high stakes.

Characterised as a value-laden, judge made system, it might be clearer why ignorance stands as no defence. The decision-making of judges in court depends to a great extent upon the prerogative of the judge in particular. That being so, knowledge of the law might not protect you from prosecution in a particular instance, so why should ignorance be afforded the privilege?

The best advice in any case is don’t get caught.

Dr