Law in Contemporary Society

Negligent Knowledge of the Law

-- By ZebulunJohnson - 19 Feb 2016

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


Better that ten guilty persons escape than that one innocent suffer.

Ignorantia juris non excusat.

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.

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.

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.

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?

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.

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?

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.

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

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.

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?


Webs Webs

r6 - 16 May 2017 - 23:17:20 - ZebulunJohnson
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM