Abstract
In this paper, we discuss the notion of inevitable ignorance that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim Ignorantia legis non excusat. In particular, we argue that the epistemic flavor of the notion extends to the notion of inevitability beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and on a discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as belief, evidence, rationality, and trust.
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Notes
The maxim is also phrased as Ignorantia legis neminem excusat, Ignorantia iuris non excusat and Ignorantia iuris neminem excusat.
According to the standard justification, the main rationale of the maxim is to make the implementation of public policies straightforward. In this justification, this straightforward implementation must be reasonably secured with some form of supremacy of the law over individual motives and states—see e.g. Hall (1957, p. 19). It is also argued that to admit ignorance as an excuse would be to encourage ignorance of the law (Holmes 1881, p. 48). Other rationales are critically discussed in Cass (1976, p. 689).
See for instance Alonso (2018, p. 182), which discusses the distinction between ‘vincible’ and ‘invincible’ errors in Argentinian criminal law; Bohlander (2009, pp. 119–121), which compares the attitudes toward errors of law in German law and English law; Mucciarelli (1996), which discusses particularly the relevance of interpretive errors and doubts in Italian law; Ashworth (2011, p. 5), which discusses the departure of South-african law from the unrestricted ILNE; Perkins (1939), which distinguishes, with respect to the US system, mistakes of law and mistakes of fact, with the latter exculpating if what was done would have been lawful had the facts been as they were reasonably supposed to be; Davies (1998), which, again relative to the US system, points out, critically, that US courts have eroded the traditional unrestricted maxim.
Pulitanò (1988) (in Italian) is a detailed comment on the decision, which also includes a discussion of the worth of legal principles that are presupposed by the decision, and an array of justifications that consistently overlap with the ones we mention in Sect. 2. Pulitanò (1988) also discusses the topic of avoidable and inevitable ignorance, but it does not provide an analysis of the two relevant notions. In particular, consideration of the array of epistemic notions that we discuss in Sects. 4–6 is missing from Pulitanò (1988).
The standard justification of the publicity principle is: in order to make plans and form reliable expectations on the legal consequences of our conduct, we need to know what the law is. And we need to know it in advance so we can act on it. See Fuller (1969), Ashworth (2011, pp. 4 and 20). As for Italian law, see Malaisi (2012).
This turns into an interesting incentive for legislatures and lawmakers in general: write provisions that are clear, unambiguous, easily understandable and available, in order not to generate uncertainty in the law’s addressees and not to unreasonably increase their information costs.
From now on, with the phrase ‘case of ILNE-restriction’ or ‘ILNE-restriction case’, we refer to those cases where ignorance of the law is at stake, and there is a question on whether restriction of ILNE applies, relative to a given standard of excusability. Since we focus on the standard set by the Italian Constritutional Court, we omit explicit reference to the standard.
This is reported in Fiandaca and Musco (2008, pp. 390, 398–399).
This and the following cases are reported in Flora (2013, pp. 68–73).
This case also presents a “cultural defense” issue. See Foblets and Renteln (2009).
From a formal point of view, a proposition P is a set of possible worlds—at least, this is the most widespread formal representation of a proposition. A proposition P is associated to a linguistic content via the sentence that expresses P—that is, the sentence that is true at all and only the worlds in the extension of P. A proposition P is true if the actual world is among the worlds where the sentence expressing P is satisfied. P is false otherwise.
In philosophy, knowledge has been for a long time identified with justified true belief. This assumption is not generally held anymore, after Gettier (1963) has challenged it with a number of convincing counterexamples.
Indeed, ignorance is either failure of true belief, or of justified true belief, or of knowledge. Since failure of true belief entails all these three failures, then lack of a true belief about a given norm will always come with ignorance of the law.
This sufficiency condition holds under the additional assumption that the agent wishes to comply with the norm, which is presupposed in every case where ignorance of the law is at stake.
Again, under the additional assumption that the agent wishes to comply with the norms.
What we are presenting in italics is actually the sentence that expresses proposition G—by contrast a proposition is, per se, an entity that has no linguistic structure. However, we can neglect the distinction for the purposes of the paper.
We follow standard set-theoretical notation and denote by \({\overline{P}}\) the complement of set P. Where P is a proposition, \({\overline{P}}\) denotes the set of worlds that are not in the extension of P—or equivalently, the set of worlds where the sentence expressing P is false.
Equivalently, she could believe that no norm was relevant to the case she was facing. There is no substantial difference between belief in this and in \(M'\), and so we will go along with the latter.
Notice that the principle is, usually, implicitly assumed in legal debates, but it is not endorsed as a general principle on human agency.
For instance, the immigrated mother entertained the false belief that ‘there is not a norm prescribing that one can exert medical activities only if she has a certified relevant qualification’.
Notice that we are not proposing this as a general take on ignorance—it would be too limited in many epistemic scenarios that have less constraints than those we deal with here. However, we feel right in claiming that this interpretation fits the purpose of the present discussion.
As we mentioned already, if the doctor believed G because a fellow doctor told him that G was true, then he would not be excused, and we would say that he should have asked for information to competent sources.
See, for instance, Kim (1988, pp. 390–391).
For instance, seeing someone that is the spitting image of his friend Smith justifies Jones in believing that he is seeing Smith.
For instance, hearing the opinion of public officials justifies the doctor in believing that G. In this case, the doctor has no access to the text containing the norm; he has just access to the testimony of the public officials about the norm.
This does not exclude that also the opinion of his tax advisor would count as evidence for the doctor’s belief. Remember that, in legal scenarios concerning ignorance of the law, the focus is on evidence as the information that the agent takes, in fact, as a justification for her own beliefs. Thus, the opinion of the doctor’s tax advisor would be evidence—bad evidence, of course.
This is natural in this context: authorities can require that you check for some relevant competent authorities, but they cannot require you that you ask to a specific individual that is acting as an authority.
Requiring this would be again requiring generic evidence: authorities would require the agent to ask for evidence from five different kinds of sources, or from five distinct specimen of the same source. The identities of the latter, however, are completely irrelevant.
We hold that some specific subjective conditions are relevant in denying that it is reasonable to demand that an agent should check for some given evidence. However, we do not hold that any subjective condition is relevant. Not all false beliefs excuse the conduct of the agent.
In the Bayesian tradition, agents are assumed to handle their confidence toward propositions in a probabilistically coherent way, and to bring on their epistemic performance by looking for evidence that confirms or disconfirm their (ideal) hypotheses on what a norm prescribes. See Bovens and Hartmann (2003), Fitelson (2001).
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We wish to thank two anonymous reviewers for their helpful comments. The initial stage of the research for this paper occurred while Roberto Ciuni was a Piscopia Fellow with the MSCA Cofund DYTEBEL Project at the Department FISPPA, University of Padova (2016–2018). Giovanni Tuzet gratefully acknowledges financial support by the Baffi Carefin Centre at Bocconi University.
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Ciuni, R., Tuzet, G. Inevitable ignorance as a standard for excusability: an epistemological analysis. Synthese 198, 5047–5066 (2021). https://doi.org/10.1007/s11229-019-02388-2
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DOI: https://doi.org/10.1007/s11229-019-02388-2