‘Ignorance of the law is no excuse.’

So say the legal textbooks, the judge’s rulings, and all the cavalcade of legal orthodoxy. Yet on the face of it, this seems unjust. How can I be accountable to a law I never learned? Is it right to arraign somebody for breaking a command never given to him? Indeed, the idea stands in apparent contradiction to the principles of Biblical jurisprudence, laid out most clearly in Romans 5 and 7: that a man can be condemned for breaking the law only once he has learned of the law. To paraphrase Romans 7:7, by knowing the law, the man becomes capable of breaking the law, which he could not before do.

Now, we can easily excuse a part of this principle. One justification for the principle is that persons have a known responsibility to check on the laws before engaging in certain actions. In other words, there is a general knowledge that certain parts of life are governed by laws, and those entering into those parts of life therefore are accountable to go and find out what the law is. Ignorance in those areas is thus negligence and recklessness, not innocent unawareness. 

The most common and least controversial example of such an area is probably driving: we all know there are rules on the road, and therefore we regard somebody who neglects to learn them as culpable for violating the laws, even if the basis of his violation was wilful ignorance, not knowing trespass. If I were to drive 90mph in a 25mph neighborhood, you’d laugh at my defense of not having seen the road signs. I had a responsibility to look for the signs, a responsibility you can properly assume me to be aware of.

This explanation, however, does not suffice for the whole of the legal maxim. It justifies only a smaller maxim- perhaps that a defense of ignorance can be dispatched or rebutted by a showing, via precedent, testimony, or common sense that the law in question is in one of those areas of responsibility-to-check or that the defendant was conscious that he might be violating the law.

Clearly this conclusion does not amount to the whole of ‘Ignorance of the law is no excuse.’ Here ignorance of the law is an excuse, but one with caveats. Places still appear where this lesser maxim does not prevent the defense of ignorance from justly applying- and probably we would still consider ignorance as a reason for leniency even in cases of negligent ignorance, particularly those cases where no actual harm was done, such as in a speeding ticket with no attached accident.

The dark suspicion which appears here is that ‘ignorance is no excuse’ operates not as a principle of justice but as a convenience for state power. Indeed, this summary seems to hint at the possibility, to the politics-jaded eye. Though I’ve not made a deep study of the matter, I’d venture that this motivation does actually underlie much of the modern understanding and promotion of the maxim.

Yet this principle is not new, coming down indeed from common law days. As seen in these quotes, one justification for it has been practicality, the problem of making so universally usable a defense into a sufficient defense. This argument I wholeheartedly reject in principle. The job of the courts is to do justice; pleading that ‘justice’ requires much travail in no way removes that duty from the courts. If they can’t convict justly, they ought not to convict at all. Further, in point of practicality, the defense of ignorance is already much curtailed by the above lesser conclusion, enough that the vast majority of cases could dismiss it with ease.

Should we dispense with the maxim as a whole, then?

Not quite. The maxim is not quite right, it is true, and its modern application is dubious at best, in too many instances. In the hypothetical that the government bans the color pink on indoor walls, the defense of ignorance should in justice be a defense usable by every man arraigned before the law, unless he can positively be shown to know the law; the law is in an area so absurd and arbitrary none could be expected (at least in a vaguely sane society) to be negligent if they are ignorant of it, not as the un-educated driver is negligent.

The remedy for this maxim lies in understanding its original context, common law, and understanding how America’s modern ‘common law’ is not the same ‘common law’ as we once had, however the trappings have changed. In the original understanding, ‘common law’ was the judges incarnating into law the customs, moral and procedural, of the people at large. Common law, therefore, was not a mass of precedent (in Blackstone’s time, in our Founders’ time, you’ll find that precedent was of much less weight than now, a source of authority but not a binding authority); it was an expression of the law of the people at large, seen in their history and moral character.

In this common law, men were accountable to the common law because they were a part of the culture it reflected. They were presumed to be aware at least of what the common law banned, if not its precise procedures and punishments, not because they went and read it (it was not truly written) but because they grew up in the culture which lived in and expected it. Foreigners, meanwhile, could be expected to do their due-diligence in entering a foreign country by researching its laws sufficiently to be good guests.

Further, the entirety of English common law’s criminal law (with scant exception; I remember no specifics, but cannot vouch for all the king/ treason adjacent laws) would be prohibited by the conscience (Rom. 1:18-25), giving the civil government Genesis 9:5 jurisdiction and responsibility. Much of the civil code would be here too. Everybody with a functioning conscience would be able to avoid trespassing the really important parts of the law (and case-by-case mercy could deal with the peripheral problems). As for psychopaths, whose guilt-faculty is mutilated by some physical-spiritual twist, the cultural consciousness of right-and-wrong would have to suffice.

(Insanity- defined as an incapability to comprehend the circumstances, such as when a man literally perceives his friend’s head to be a whack-a-mole game- of course would suffice as a defense. That additional circumstance modifies the outcome, but it does not modify the principle.)

The law, meanwhile, should regard ignorance of the law as sufficient defense, where it is actually present Knowledge of the law would likely be most made a necessary element of the crime, in assessing burden of proof, with a low standard of evidence unless the defendant objects. For many laws, those which modify the common law punishment without creating a crime, ignorance would be no issue. Ignorance of the specific punishment is not an issue, so long as the punishment is just (which is a different problem- proportionality is fundamental to justice, and a law instituting a disproportionate punishment is immoral (possibly illegal in the American federal context, due to the Eighth Amendment). The criminal, knowing the crime, was intuitively or culturally informed that a proportional punishment could be expected if he was caught.

Law within the state’s general area of administration, moreover, would have little need to worry; cultural education would provide that men have a due-diligence responsibility. A good example here, besides road-laws, would be border-control laws, such as tariffs, passports, and their ilk. If a man knows what a country is, he knows (however much he denies it) that they have borders, and minimal logic will tell him that those borders are subject to governmental administration. Justifiable and therefore vindicative ignorance of the law remains here, but only for those intellectually incapable of the logic (children, some insane persons, and some mentally disabled) or not provided with the information (most legally-relevant insanity and the man who can show he didn’t know the border was there).

As for laws which lie outside the culture’s understanding of the government’s jurisdiction, where natives do not have a culturally or intuitively informed due-diligence responsibility (and foreigners a responsibility based in their moral duty to be good guests (Ex. 12:49)), defense on ‘ignorance of the law’ ought to be robust. Government’s authority is delegated to it by the people, to whom that authority was first given (Gen. 9:5-6). If it acts outside the people’s understanding of that delegation, it acts with presumptive illegitimacy; it must prove that this law actually lies within its remit. Disadvantaging such dubious law by requiring its enactors to meet a higher standard of evidence is only prudent.

All this said, we do not now have a legal system which justifies the maxim. Our ‘common law’ bears only a proximity to the common law of Blackstone’s day, of our Founders’ day, which I have described above. That common law was understood to be the statement of the people’s customs, of the law made by the people’s consent and collective decision. Precedent therefore was useful only in showing that a custom existed; it was not authoritative in itself. Our modern ‘common law’ system has a similar aesthetic, but the essence is different. Modern ‘common law’ regards the precedent of judges as determinative, except when a later judge decides to change it. In other words, rather than being an effort to apply the custom of the land, modern common law is the accretion of judicial legislation.

As such, citizens cannot be presumed to know this ‘common law’ by cultural and intuitive (conscience-based) education. It is not their custom; it is the accumulated and intricate practice of a bunch of lawyers. This presents less difficulty for the maxim in areas of responsibility-to-research (the old common law system had its flaws in that area), but in places where men are presumed to know the law by cultural osmosis, the structure makes the presumption dubious and debatable in court (if we had justice).

The common disproportionality of punishment-to-crime also causes difficulty, though this is an old problem merely exacerbated in the modern day. If the criminal cannot expect at least rough proportionality, how can he be know of the punishment to be properly accountable to that part of the law? This is less difficult to show when the punishment is inferior to the size of the crime (as with the Supreme Court-mandated refusal to apply the death penalty to rapists), but quite difficult when the punishment is disproportionately large (say, life in prison as recompense for non-violent theft (really happened)).

Further, the sheer volume and scope of legislation creates issues, issues exponentially magnified by the hideous bulk and constant mutation of administrative law (illegal pus that such is). How is a man to be accountable to the whole law, when it bears little relation to his custom, changes constantly, and is a full-time job to be apprised of, even in part? In such circumstances, particularly with laws finding ever new areas of control (even state’s general jurisdiction is not complete but properly limited by ancient custom and by morality), justice demands that ignorance be often a sufficient defense against the law, even before the law’s immorality becomes another complete defense.

The sum of all this is: ‘Ignorance of the law is no excuse’ ought be truly just. In our current legal system, however, it is not just. Our laws do not allow it to be just, even as they demand it to be true. So we have a clear course: ignorance should be a defense, albeit one requiring proof, until our law is so thoroughly remade that the maxim can be true with justice once more (with some exceptions, as seen above).

God bless.