Table Of Contentoxford legal philosophy
Series Editors: TIMOTHY ENDICOTT, JOHN GARDNER, and
LESLIE GREEN
Ignorance of Law
ii
Oxford Legal Philosophy
Series Editors Timothy Endicott, John Gardner, and Leslie Green
Oxford Legal Philosophy publishes the best new work in philosophically- oriented
legal theory. It commissions and solicits monographs in all branches of the
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ALSO AVAILABLE IN THIS SERIES
Allowing for Exceptions
A Theory of Defences and Defeasibility in Law
Luis Duarte d’Almeida
Corrective Justice
Ernest J. Weinrib
Why Law Matters
Alon Harel
The Nature of Legislative Intent
Richard Ekins
The Ends of Harm
The Moral Foundations of Criminal Law
Victor Tadros
Conscience and Conviction
The Case for Civil Disobedience
Kimberley Brownlee
Ignorance of Law
A Philosophical Inquiry
Douglas Husak
1
iv
1
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Library of Congress Cataloging-i n- Publication Data
Names: Husak, Douglas N., 1948- author.
Title: Ignorance of law : a philosophical inquiry / Douglas Husak.
Description: New York : Oxford University Press, 2016. | Series: Oxford legal philosophy |
Includes bibliographical references and index.
Identifiers: LCCN 2016001845 | ISBN 9780190604684 (hardback : alk. paper)
Subjects: LCSH: Ignorance (Law)—Philosophy.
Classification: LCC K5083 .H87 2016 | DDC 340/.1—dc23 LC record available at
http://lccn.loc.gov/2016001845
9 8 7 6 5 4 3 2 1
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To the international community
of criminal law theorists
vi
Contents
Series Editors’ Preface ix
Acknowledgments xi
Introduction 1
1. Methodological Assumptions: How to Approach a
Philosophical Inquiry Into the Topic of Ignorance of Law 17
A. The Basic Question 18
B. Critical Morality and the Criminal Law 33
C. Intuitions and Their Limitations 51
2. Existing Law, Scholarly Commentary, and What to Learn
From It 67
A. Selected Cases and Commentary 69
B. Notice 88
C. Fact and Law 98
D. The Structure of Exculpatory Claims: Ignorance of Law
as a Denial of Mens Rea 113
3. Responsibility 135
A. The Capacity for Responsibility 137
B. Responsibility for Conduct 145
C. Culpable Ignorance and a Duty to Inquire 170
4. Refinements, Qualifications, Complexities 191
A. Knowledge of Wrongdoing 193
B. Hard Cases and Possible Exceptions 216
C. The Doubly Problematic Case of Mala Prohibita 226
D. Negligent Mistakes of Law 247
5. The Real World 253
A. Implementation and Practical Realities 255
B. Consequences and Compromises 270
References 283
Index of Authorities 295
Index 297
viii
Series Editors’ Preface
“Ignorance of the law is no excuse” is a venerable legal maxim, one
that is well known among laypeople as well as lawyers. It is mentioned
by Aristotle and observed, with few qualifications, in Roman as well
as common- law systems. But is it a good principle? As the number
and technicality of statutory offenses continues to grow in most coun-
tries, the ability of people, even lawyers, to have a good command of
what the law requires of them declines. Douglas Husak is inspired by
this worrying aspect of contemporary life to offer a wide- ranging re-
evaluation of the old maxim, exposing its troubling presuppositions
and implications with characteristic wit and style as well as rigor
and insight. In the process he introduces us to many interrelated and
crosscutting themes that no other author has brought together. The
book opens up numerous avenues of further exploration for the reader,
and luminously explains the relations among them. The work is a
major contribution to the study of legal and moral responsibility more
widely, and not only a searing critique of received legal wisdom on the
subject of how to deal with understandable ignorance.
February 2016 Timothy Endicott
John Gardner
Leslie Green
