Law in Contemporary Society

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ZebulunJohnsonFirstEssay 6 - 16 May 2017 - Main.ZebulunJohnson
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Negligent Knowledge of the Law

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Introduction

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Better that ten guilty persons escape than that on innocent suffer.
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Better that ten guilty persons escape than that one innocent suffer.
 Ignorantia juris non excusat.

ZebulunJohnsonFirstEssay 5 - 10 Mar 2016 - Main.EbenMoglen
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Negligent Knowledge of the Law

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Reasonable Legal Mistake and Lack of Intent to Cause Harm as a Legal Defense

By using terms such as “good faith” and “reasonable belief,” the MPC already accepts the idea that sometimes people are not blameworthy for their ignorance. However, there appears to be a justification gap in the MPC's punishing of reasonable efforts to follow the law with no intent to harm. Without a rationale based on justice to support the idea that such acts are blameworthy, the MPC violates one of the basic tenets of criminal law: criminal liability falls only on those at fault for their conduct. Due to these reasons, reasonable efforts to follow the law with no intent to harm should not give rise to criminal liability.

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But there are juries and prosecutors as well as law books. Why should the law itself make provision in a mechanical fashion for the decisions that human prosecutors possessed of discretion and responsibility not to prosecute, and jurors possessed of the absolute power to acquit, are perfectly capable of making?

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ZebulunJohnsonFirstEssay 4 - 05 Mar 2016 - Main.ZebulunJohnson
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Negligent Knowledge of the Law

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 This paper assumes at least a novice understanding of the Model Penal Code’s philosophy and workings.

Introduction

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Better that ten guilty persons escape than that on innocent suffer.
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Better that ten guilty persons escape than that on innocent suffer.
 Ignorantia juris non excusat.
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Why does the Model Penal Code (MPC) regard a mistake of fact as exculpatory but not a mistake of law? The primary answers to this question tend to focus on either the discouragement of willful ignorance or the difficulty of proving knowledge. However, as Blackstone’s formulation suggests, the criminal law system should be based on theories of justice. This is why the criminal legal system requires culpability: it is an attempt to ensure that criminal liability falls only on those at fault for their conduct. By basing the maxim that ignorance of the law is non-exculpatory (as well as non-mitigatory) on policy reasons, these rationales presume the blameworthiness of legal ignorance without examining issues of justice or fairness.
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Why does the Model Penal Code (MPC) regard a mistake of fact as exculpatory but a mistake of law as nonexculpatory? The primary answers to this question tend to focus on either the discouragement of willful ignorance or the difficulty of proving knowledge. However, as Blackstone’s formulation suggests, the criminal law system should be based on theories of justice, and for this reason I will not consider utilitarian theories to explain this different treatment. The foundational idea of justice is why the criminal legal system requires culpability: it is an attempt to ensure that criminal liability falls only on those at fault for their conduct. By basing the maxim that ignorance of the law is non-exculpatory (as well as non-mitigatory) on policy reasons, these rationales presume the blameworthiness of legal ignorance without examining issues of justice or fairness.

In this essay, I hope to show that the theories of fairness embodied in the MPC are inconsistent with the general non-exculpability of legal mistake. An approach more consistent with the MPC’s current theories is a defense of legal mistake if the defendant acted reasonably with no intent to harm.

 
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In this essay, I hope to show that the theories of fairness embodied in the MPC are inconsistent with a general non-exculpability of legal mistake. An approach more consistent with the MPC’s current theories is a defense of legal mistake if the defendant acted reasonably and with no intent to harm.
 
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Intent: The Difference between Ignorance of Fact and Law

2.04 of the MPC only exculpates from unintended harm. This principle, the lack of an intent to cause harm, is the rationale behind reducing culpability due to ignorance of fact, as it negates the mens rea of causing the harm. As an example, if Sally and Harry both have identical laptops, and Sally takes Harry’s laptop by mistake, she is not culpable for theft because she had no intent to cause harm to Harry through her actions.
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Harmful Intent: The Difference between Ignorance of Fact and Law

2.04 of the MPC only exculpates from unintended harm. This principle, the lack of an intent to cause harm, is the rationale behind reducing culpability due to ignorance of fact, as it negates the mens rea of the act. As an example, if Sally and Harry both have identical laptops, and Sally takes Harry’s laptop by mistake, she is not culpable for theft because she had no intent to cause harm to Harry through her actions. Similarly, if Sally intends to steal the laptop and upon discovering his laptop's absence Harry dies from shock, Sally is only criminally liable for theft because she only intended to cause the harm of theft to Harry.
 
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By extending this rationale to ignorance of law, we gain a consistent rationale for holding a large subset of ignorance of law as non-exculpatory: a mistake of law with an intent to harm is non-exculpatory because it does not negate the mens rea. Thus, if Sally purposefully takes Harry’s laptop, but believes that the law does not criminalize her behavior, she is culpable for theft because she intended to cause harm to Harry through the theft.
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By extending this rationale to ignorance of law, we gain a justice rationale for holding a large subset of ignorance of law as non-exculpatory: a mistake of law with an intent to harm is non-exculpatory because it does not negate the mens rea of the act. Thus, if Sally purposefully takes Harry’s laptop, but believes that the law does not criminalize her behavior, she is culpable for theft because she intended to cause the harm of theft to Harry.
 
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However, this raises the question of whether ignorance of the law that negates the mens rea requirement is exculpatory. At a minimum, the MPC allows ignorance to be exculpatory when the legislature allows it to be. Thus, in the tax code of several states, we see the term “willful” appear. In these contexts, “willfulness” adds a requirement of legal knowledge to culpability. The rationale behind willfulness is that the legislature does not wish to punish “good faith efforts” to comply with the law.
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Good Faith & Reasonableness

However, this raises the question of whether ignorance of the law that negates the mens rea requirement is exculpatory. At a minimum, the MPC already allows ignorance to be exculpatory when the legislature allows it to be. Thus, in the tax code of several states, we see the term “willful” appear. In these contexts, “willfulness” adds a requirement of legal knowledge to culpability. The rationale behind willfulness is that the legislature does not wish to punish “good faith efforts” to comply with the law.

 Why then, does the criminal system punish good faith efforts to comply with the law in other contexts?
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The most immediate concern with making good faith exculpatory is its subjectivity. Once again, imagine that Sally purposefully takes Harry’s laptop, believes that the law does not criminalize her behavior, and believes that it is her legal duty to take Harry’s laptop because doing so would benefit Harry. In this case, good faith would not exculpate Sally’s behavior, even though Sally no longer has the culpable mental state of causing the harm of theft to Harry. In this case, subjective good faith effort negates the mens rea, yet it is intuitive that the criminal justice system should punish Sally.
 
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Good Faith and Reasonableness

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This intuitiveness comes from an appeal to reasonableness. In the prior example, it would be difficult to find that Sally’s actions were reasonable. If they had been reasonable, however, would Sally still be criminally culpable?
 
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The most immediate concern with making good faith exculpatory is its subjectivity. Once again, imagine that Sally purposefully takes Harry’s laptop, believes that the law does not criminalize her behavior, and believes that it is her legal duty to take Harry’s laptop. Clearly, this does not exculpate Sally’s behavior. In this case, subjective good faith effort does not negate the mens rea, and the criminal justice system should punish Sally.
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In all but a few instances, yes, the criminal justice system would still find Sally liable for a reasonable mistake without an intent to cause harm. The MPC carves out limited exceptions to the non-exculpatory nature of legal ignorance based on a non-negligent belief in cases of inaccessibility of the enactment or reliance on an official interpretation of the law. Yet few rationales based on justice are offered as to why reasonable ignorance of the law is punished in some instances but not all.
 
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This conclusion is based on an appeal to reasonableness. The MPC already carves out a limited defense of legal ignorance based on reasonable belief in cases of inaccessibility of the enactment or reliance on official interpretation of the law. Sally’s good faith effort to follow her legal duty fails because no reasonable person would believe in a duty to steal. To state it another way, the MPC carves out limited exceptions to the non-exculpatory nature of legal ignorance based on a non-negligent belief.
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If the tax code exception is due to its complexity, then legal ignorance itself is blameworthy, and the assumption is that the entirety of the legal system is simple enough for one individual to understand. If reliance upon official interpretation or inaccessibility exception is due to an appeal to fair warning, the assumption is that citizens have ways to easily access statutes and judicial interpretations of these statutes. An analysis as to the reasonableness of these rationales for the exceptions is outside the scope of this essay, but I feel fairly confident in assuming that neither of them prevail under scrutiny.
 

Reasonable Legal Mistake and Lack of Intent to Cause Harm as a Legal Defense

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By using terms such as “good faith” and “reasonable belief,” the MPC accepts the idea that sometimes people are not blameworthy for their ignorance. Yet few rationales based on justice are offered as to why reasonable ignorance of the law is punished in some instances but not all. If legal ignorance itself is blameworthy, and the tax code is exempted due to its complexity, then the assumption is that the rest of the legal system is simple enough that it is blameworthy to not know it. If reliance upon official interpretation or inaccessibility is based on an idea of fair warning, then the assumption is that citizens have ways to easily access not only statutes, but also judicial interpretations of statutes. An analysis as to whether these are true is outside the scope of this essay, but I feel fairly certain in assuming neither of them hold together under scrutiny.

To address this inconsistency in the MPC, I propose the following: take the rationale behind the defense of ignorance of fact (intent to cause damage) and qualify it with a reasonableness standard. Thus, ignorance of law defenses where the defendant did not mean to cause damage and his legal ignorance was reasonable should be exculpatory. This should prove an inclusive framework for determining culpability in terms of justice for ignorance of law.

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By using terms such as “good faith” and “reasonable belief,” the MPC already accepts the idea that sometimes people are not blameworthy for their ignorance. However, there appears to be a justification gap in the MPC's punishing of reasonable efforts to follow the law with no intent to harm. Without a rationale based on justice to support the idea that such acts are blameworthy, the MPC violates one of the basic tenets of criminal law: criminal liability falls only on those at fault for their conduct. Due to these reasons, reasonable efforts to follow the law with no intent to harm should not give rise to criminal liability.

ZebulunJohnsonFirstEssay 3 - 23 Feb 2016 - Main.ZebulunJohnson
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Negligent Knowledge of the Law

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 By using terms such as “good faith” and “reasonable belief,” the MPC accepts the idea that sometimes people are not blameworthy for their ignorance. Yet few rationales based on justice are offered as to why reasonable ignorance of the law is punished in some instances but not all. If legal ignorance itself is blameworthy, and the tax code is exempted due to its complexity, then the assumption is that the rest of the legal system is simple enough that it is blameworthy to not know it. If reliance upon official interpretation or inaccessibility is based on an idea of fair warning, then the assumption is that citizens have ways to easily access not only statutes, but also judicial interpretations of statutes. An analysis as to whether these are true is outside the scope of this essay, but I feel fairly certain in assuming neither of them hold together under scrutiny.

To address this inconsistency in the MPC, I propose the following: take the rationale behind the defense of ignorance of fact (intent to cause damage) and qualify it with a reasonableness standard. Thus, ignorance of law defenses where the defendant did not mean to cause damage and his legal ignorance was reasonable should be exculpatory. This should prove an inclusive framework for determining culpability in terms of justice for ignorance of law.

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One of the primary rationales behind the Model Penal Code is the retributivist idea that society needs to punish certain antisocial behavior, as the punishment is morally just in and of itself. This rationale focuses on the individual’s crime. A classical illustration of this rationale is the rapist who, before his sentencing, develops a disease that physically incapacitates his ability to rape. Punishing the rapist will have no deterrent effect on the individual, as it is impossible for the rapist to commit his crime again. However, under this rationale, punishment is its own justification and the rapist will still be punished.

The secondary rationale behind the Model Penal Code is the utilitarian idea that society needs to punish certain antisocial behavior, as the punishment will lead to deterrence of that behavior. This rational focuses on the societal impact of punishment. Under a utilitarian viewpoint, the aforementioned rapist would be incarcerated due to the deterrent effect on others. The deterrent effect is the justification for punishment.

The Problem of Punishing Ignorance

The penal system focuses on both an actus reas and a mens rea, or a guilty act and a guilty mind. Thus, the criminal law system punishes only if an individual's act is morally blameworthy both objectively and subjectively. To punish behavior that an individual has purposefully performed, but that the individual did not know was criminal, seems irreconcilable with either of the rationales given for criminal law. The retributivist rationale focuses on the moral blameworthiness if the act, and the moral rightness of the punishment. By punishing an individual who is ignorant of the law, we are punishing the ignorance rather than a morally blameworthy mental state. That is, unless we have decided that ignorance is morally blameworthy. The criminal law system has carved out several exceptions to culpability for a physical inability to understand or follow the law, as there is no culpable mental state and thus no morally blameworthy behavior. The distinction between physical inability to follow the law, and the inability to follow the law due to ignorance, seems too small to be meaningful. In both instances, the punished act would lack knowledge of legality. The utilitarian rationale also fails to justify punishing ignorance, as it leads to fair warning problems. If we justify punishing ignorance on the basis of deterring others from committing the crime, our justification is based on others learning of the punishment. But if the theory of deterrence is based on notice, how does the utilitarian rationale support punishment of an individual who did not have prior notice? It seems inconsistent that a rationale based on deterrence does not concern itself with whether an individual had the opportunity to be deterred.

Criminal Negligence Standard as a Reconciliation

A way around these problems would be to create a negligence standard as to questions of law. A criminal negligence standard asks the question if the behavior “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Under such a standard, the assumption that ignorance is morally blameworthy transforms into an assumption that unreasonableness is morally blameworthy. Although this still does not entirely comport with the aims of retributivism, it lessens the tension considerable. For utilitarian aims, deterrence applies to all potential actors, and not only those who would receive notice of the first actor’s punishment.

Applying a criminal negligence standard to questions of law would also preserve the practical aspect of the criminal justice system not wanting willful ignorance as an affirmative defense. Criminal negligence is a deviation from the standard of care, and would only apply in limited situations. Every reasonable citizen can be expected to understand that theft is a crime, so no thief could claim ignorance of the law as a defense. Every industry actor should be expected to understand (or have legal counsel that understands) the laws surrounding that industry, thus ignorance of the law could not be claimed as a defense in that situation either. However, actors that rationally consult with legal counsel and then follow the law to the best of their abilities should not be punished for their misunderstanding of how a given court will construe the law. We already have exceptions in some jurisdictions for mistakes of law based on a government official’s explanations. Similarly, mistakes of law that could be made by reasonable individuals should not be punished.

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ZebulunJohnsonFirstEssay 2 - 22 Feb 2016 - Main.ZebulunJohnson
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META TOPICPARENT name="FirstEssay"

Negligent Knowledge of the Law

-- By ZebulunJohnson - 19 Feb 2016

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This paper assumes at least a novice understanding of the Model Penal Code’s philosophy and workings.
 

Introduction

Changed:
<
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Both civil and criminal law abide by the principle ignorantia juris non excusat, ignorance of the law excuses not. This principle imputes knowledge of the law onto every citizen, making citizens unable to defend themselves through a claim of legal ignorance. Though the actual ability for any one citizen to thoroughly know the laws is an impossibility, the primary reasoning behind this doctrine is to prevent willful ignorance from becoming a basis of exculpation. Although this principle might (or might not) comport with the civil law traditions, the principle is contradictory with the two rationales underlying criminal law: retributivism and utilitarianism. It is my view that a criminal negligence standard should be used to determine whether ignorance of the law proves exculpatory.
>
>
Better that ten guilty persons escape than that on innocent suffer.

Ignorantia juris non excusat.

Why does the Model Penal Code (MPC) regard a mistake of fact as exculpatory but not a mistake of law? The primary answers to this question tend to focus on either the discouragement of willful ignorance or the difficulty of proving knowledge. However, as Blackstone’s formulation suggests, the criminal law system should be based on theories of justice. This is why the criminal legal system requires culpability: it is an attempt to ensure that criminal liability falls only on those at fault for their conduct. By basing the maxim that ignorance of the law is non-exculpatory (as well as non-mitigatory) on policy reasons, these rationales presume the blameworthiness of legal ignorance without examining issues of justice or fairness.

In this essay, I hope to show that the theories of fairness embodied in the MPC are inconsistent with a general non-exculpability of legal mistake. An approach more consistent with the MPC’s current theories is a defense of legal mistake if the defendant acted reasonably and with no intent to harm.

Intent: The Difference between Ignorance of Fact and Law

2.04 of the MPC only exculpates from unintended harm. This principle, the lack of an intent to cause harm, is the rationale behind reducing culpability due to ignorance of fact, as it negates the mens rea of causing the harm. As an example, if Sally and Harry both have identical laptops, and Sally takes Harry’s laptop by mistake, she is not culpable for theft because she had no intent to cause harm to Harry through her actions.

By extending this rationale to ignorance of law, we gain a consistent rationale for holding a large subset of ignorance of law as non-exculpatory: a mistake of law with an intent to harm is non-exculpatory because it does not negate the mens rea. Thus, if Sally purposefully takes Harry’s laptop, but believes that the law does not criminalize her behavior, she is culpable for theft because she intended to cause harm to Harry through the theft.

However, this raises the question of whether ignorance of the law that negates the mens rea requirement is exculpatory. At a minimum, the MPC allows ignorance to be exculpatory when the legislature allows it to be. Thus, in the tax code of several states, we see the term “willful” appear. In these contexts, “willfulness” adds a requirement of legal knowledge to culpability. The rationale behind willfulness is that the legislature does not wish to punish “good faith efforts” to comply with the law.

Why then, does the criminal system punish good faith efforts to comply with the law in other contexts?

Good Faith and Reasonableness

The most immediate concern with making good faith exculpatory is its subjectivity. Once again, imagine that Sally purposefully takes Harry’s laptop, believes that the law does not criminalize her behavior, and believes that it is her legal duty to take Harry’s laptop. Clearly, this does not exculpate Sally’s behavior. In this case, subjective good faith effort does not negate the mens rea, and the criminal justice system should punish Sally.

This conclusion is based on an appeal to reasonableness. The MPC already carves out a limited defense of legal ignorance based on reasonable belief in cases of inaccessibility of the enactment or reliance on official interpretation of the law. Sally’s good faith effort to follow her legal duty fails because no reasonable person would believe in a duty to steal. To state it another way, the MPC carves out limited exceptions to the non-exculpatory nature of legal ignorance based on a non-negligent belief.

Reasonable Legal Mistake and Lack of Intent to Cause Harm as a Legal Defense

 
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Dual Rationales of Criminal Law

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By using terms such as “good faith” and “reasonable belief,” the MPC accepts the idea that sometimes people are not blameworthy for their ignorance. Yet few rationales based on justice are offered as to why reasonable ignorance of the law is punished in some instances but not all. If legal ignorance itself is blameworthy, and the tax code is exempted due to its complexity, then the assumption is that the rest of the legal system is simple enough that it is blameworthy to not know it. If reliance upon official interpretation or inaccessibility is based on an idea of fair warning, then the assumption is that citizens have ways to easily access not only statutes, but also judicial interpretations of statutes. An analysis as to whether these are true is outside the scope of this essay, but I feel fairly certain in assuming neither of them hold together under scrutiny.
 
Added:
>
>
To address this inconsistency in the MPC, I propose the following: take the rationale behind the defense of ignorance of fact (intent to cause damage) and qualify it with a reasonableness standard. Thus, ignorance of law defenses where the defendant did not mean to cause damage and his legal ignorance was reasonable should be exculpatory. This should prove an inclusive framework for determining culpability in terms of justice for ignorance of law.
 One of the primary rationales behind the Model Penal Code is the retributivist idea that society needs to punish certain antisocial behavior, as the punishment is morally just in and of itself. This rationale focuses on the individual’s crime. A classical illustration of this rationale is the rapist who, before his sentencing, develops a disease that physically incapacitates his ability to rape. Punishing the rapist will have no deterrent effect on the individual, as it is impossible for the rapist to commit his crime again. However, under this rationale, punishment is its own justification and the rapist will still be punished.

The secondary rationale behind the Model Penal Code is the utilitarian idea that society needs to punish certain antisocial behavior, as the punishment will lead to deterrence of that behavior. This rational focuses on the societal impact of punishment. Under a utilitarian viewpoint, the aforementioned rapist would be incarcerated due to the deterrent effect on others. The deterrent effect is the justification for punishment.


ZebulunJohnsonFirstEssay 1 - 19 Feb 2016 - Main.ZebulunJohnson
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META TOPICPARENT name="FirstEssay"

Negligent Knowledge of the Law

-- By ZebulunJohnson - 19 Feb 2016

Introduction

Both civil and criminal law abide by the principle ignorantia juris non excusat, ignorance of the law excuses not. This principle imputes knowledge of the law onto every citizen, making citizens unable to defend themselves through a claim of legal ignorance. Though the actual ability for any one citizen to thoroughly know the laws is an impossibility, the primary reasoning behind this doctrine is to prevent willful ignorance from becoming a basis of exculpation. Although this principle might (or might not) comport with the civil law traditions, the principle is contradictory with the two rationales underlying criminal law: retributivism and utilitarianism. It is my view that a criminal negligence standard should be used to determine whether ignorance of the law proves exculpatory.

Dual Rationales of Criminal Law

One of the primary rationales behind the Model Penal Code is the retributivist idea that society needs to punish certain antisocial behavior, as the punishment is morally just in and of itself. This rationale focuses on the individual’s crime. A classical illustration of this rationale is the rapist who, before his sentencing, develops a disease that physically incapacitates his ability to rape. Punishing the rapist will have no deterrent effect on the individual, as it is impossible for the rapist to commit his crime again. However, under this rationale, punishment is its own justification and the rapist will still be punished.

The secondary rationale behind the Model Penal Code is the utilitarian idea that society needs to punish certain antisocial behavior, as the punishment will lead to deterrence of that behavior. This rational focuses on the societal impact of punishment. Under a utilitarian viewpoint, the aforementioned rapist would be incarcerated due to the deterrent effect on others. The deterrent effect is the justification for punishment.

The Problem of Punishing Ignorance

The penal system focuses on both an actus reas and a mens rea, or a guilty act and a guilty mind. Thus, the criminal law system punishes only if an individual's act is morally blameworthy both objectively and subjectively. To punish behavior that an individual has purposefully performed, but that the individual did not know was criminal, seems irreconcilable with either of the rationales given for criminal law. The retributivist rationale focuses on the moral blameworthiness if the act, and the moral rightness of the punishment. By punishing an individual who is ignorant of the law, we are punishing the ignorance rather than a morally blameworthy mental state. That is, unless we have decided that ignorance is morally blameworthy. The criminal law system has carved out several exceptions to culpability for a physical inability to understand or follow the law, as there is no culpable mental state and thus no morally blameworthy behavior. The distinction between physical inability to follow the law, and the inability to follow the law due to ignorance, seems too small to be meaningful. In both instances, the punished act would lack knowledge of legality. The utilitarian rationale also fails to justify punishing ignorance, as it leads to fair warning problems. If we justify punishing ignorance on the basis of deterring others from committing the crime, our justification is based on others learning of the punishment. But if the theory of deterrence is based on notice, how does the utilitarian rationale support punishment of an individual who did not have prior notice? It seems inconsistent that a rationale based on deterrence does not concern itself with whether an individual had the opportunity to be deterred.

Criminal Negligence Standard as a Reconciliation

A way around these problems would be to create a negligence standard as to questions of law. A criminal negligence standard asks the question if the behavior “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Under such a standard, the assumption that ignorance is morally blameworthy transforms into an assumption that unreasonableness is morally blameworthy. Although this still does not entirely comport with the aims of retributivism, it lessens the tension considerable. For utilitarian aims, deterrence applies to all potential actors, and not only those who would receive notice of the first actor’s punishment.

Applying a criminal negligence standard to questions of law would also preserve the practical aspect of the criminal justice system not wanting willful ignorance as an affirmative defense. Criminal negligence is a deviation from the standard of care, and would only apply in limited situations. Every reasonable citizen can be expected to understand that theft is a crime, so no thief could claim ignorance of the law as a defense. Every industry actor should be expected to understand (or have legal counsel that understands) the laws surrounding that industry, thus ignorance of the law could not be claimed as a defense in that situation either. However, actors that rationally consult with legal counsel and then follow the law to the best of their abilities should not be punished for their misunderstanding of how a given court will construe the law. We already have exceptions in some jurisdictions for mistakes of law based on a government official’s explanations. Similarly, mistakes of law that could be made by reasonable individuals should not be punished.


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