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.