"Ignorance of the law is no defense": On State Justice and Citizen Morality

Updated: Jun 10, 2020


Anyone ever consider the assumption behind all state law, the axiom that (Canada s.19] “ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law”.

Not all western democracies have this written as a legal principle like Canada, but employ it, for centuries – as true of the Middle Ages as it is now – in the capacity of a “legal fiction” (not my term).

This fiction, rather than an occasion for condemnation, can be useful. It seems to be a place where we can identify the imprint of the state on the concept of Law, and see what this means for ethical questions, for questions of justice. Because it does look and talk like a state-institution’s requirement, one that only makes sense assuming the current separation between the legal system and the education system in the ‘State.’

Their intermingling is perhaps hard to imagine, but still possible to envision: where crime is attended-to by the entire community, and is addressed seriously, allowing an exchange of ideas, or a manner with which to gauge whether a certain legislation is outdated or had become corrupt. Somniare aude! (yes, I’m sticking it to Kant. It’s fun. You should try it sometime).

The citizen mindset that believes it is ethically absolved by stating “It’s the law” to, say, a criminal in need – which is perhaps a good example of what Hunter S. Thompson called “the fundamental decency of the white man’s culture” (#justiceasfairness) – confuses the State with the Jewish-Monotheist God; for only the latter’s commands are absolute and pre-absolved, and only as what Levinas called an infinity could the law manage that without sinning against justice.

That is why it doesn’t really make moral sense, if you stop to think about it, to try someone for breaking a law they knew nothing about, especially in a system that so crucially revolves around the criminal agent’s awareness of the details of its actions (not their meaning).

Also, it doesn’t make sense to morally allow this axiom – as a meta-legal principle it can, and I believe must, be exposed to questions of value – and still to use “you broke the law” as some impervious moral accusation, a justification for meanness, for privatizing and mistreating prisoners, for socially persecuting suspects and ex-criminals…

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