IGNORANCE. - In its broadest sense, it is the privation of knowledge or of science in a subject capable of having it. If the subject is incapable, one speaks rather of nescience. Understood in this way, i. has the character first of all of privation. In Latin there are two words to indicate this state of the thinking subject: ignorantia, which indicates the habitual state; ignoratio, the actual state of one who does not know.
In a narrower sense, by the term i. is usually meant the culpable defect of knowledge. Thus a second aspect enters into the concept of i., the culpability of one's own habitual or actual state. I. is distinguished from error, which is an inexact or deficient cognition, or rather the holding as true a thing that is objectively false (a false judgment); from inadvertence, which is the momentary failure to consider what the person knows; and from forgetfulness, temporary or perpetual, of knowledge previously possessed. Nevertheless, for moral and juridical purposes, error, inadvertence and forgetfulness are equivalent to i., and consequently what is said of the latter holds for the former. For particular aspects and considerations, see also ERROR.
I. DIVISIONS OF IGNORANCE
With respect to the agent's responsibility, a distinction is drawn between invincible and vincible ignorance. By invincible ignorance is meant that which is absolutely irremovable (physically, as the moralists say) or is removable only by an extraordinary effort, to which the person is not bound: whoever brings to the search for the truth that he must know a diligence that is morally sufficient, that is, proportionate to the gravity of the matter, and nevertheless fails to know it, is in invincible ignorance. By vincible ignorance, on the other hand, is meant that which exists through a lack of proportionate and dutiful search for the truth on the part of the person. It is subdivided into affected ignorance, that is, deliberately willed in order to be exempted from observance of the law; into crass or supine ignorance, the effect of the person's complete carelessness in the search for the truth; into ignorance that is simply vincible though grave (insofar as the disproportion between the search and the gravity of the duty to know what one must know remains grave even after insufficient searches); and into ignorance that is vincible though lightly culpable. Naturally, although the notions are clear and well distinguished, it is easy to understand that in practice it will not always be easy to distinguish between one ignorance and another, for example, between crass or supine ignorance and simply grave ignorance, or between lightly culpable ignorance and ignorance that is not culpable at all.
In relation to the influence of ignorance on the action, there is antecedent, concomitant and consequent ignorance. Antecedent ignorance is that which is found in the person without any fault or will of his own and is the reason why he acts in a manner different from how he would have acted had he had knowledge of the matter; for this reason antecedent ignorance is not only not the effect of a bad will or of carelessness in the search for the truth, but is an entirely involuntary cause of human action. Concomitant ignorance denotes the state of one who, while willing for other preceding reasons the effect that he has in fact obtained by his action, nevertheless in acting has attained that effect through ignorance and therefore, in fact, involuntarily: that is, the effect that in acting the agent willed did not come about, because ignorance was present in him; but another effect came about which he did not then will but which, had it been foreseen (had the supposed ignorance not been present), the agent would have willed: it is repeated, however, that in fact he did not will it and did not intend it when he performed the action from which it derived. Accordingly, concomitant ignorance is ineffective and in fact bears no relation to the human act performed by the subject.
Consequent ignorance is ignorance directly or at least indirectly willed by the person and at the same time the cause and motive of the action. It is called consequent because it is the consequence of an act of the person's will, who willed to remain ignorant.
As to the object unknown to the will, a distinction is drawn between ignorance of law, that is, of the law, ignorance of penalty, that is, of the penalty, and ignorance of fact, that is, ignorance concerning the nature or an essential element of the object pursued by the will. Ignorance of the law concerns the existence or the extent of a law, whether natural, divine, ecclesiastical or civil: the person is ignorant that a particular law exists or is inexactly informed about the content or the scope of the law itself.
Ignorance of the penalty occurs when the subject, while knowing the law, is ignorant that a penalty is attached to its violation.
Ignorance of fact, on the other hand, presupposing knowledge of the law and possibly also of the penalty attached for violators, occurs in those cases in which the person believes that the act he performs is not included under it, insofar as some essential element required by the law escapes him, so that the object of the action may be comprehended under its sway.
II. IGNORANCE IN CANON LAW
In its general norms the CIC lays down a principle that has in part a relative value, in part an absolute value. In can. 16 § 2 it states expressly that ignorance or error regarding the law or the penalty or regarding a fact of one's own (that is, concerning the very person in question) or regarding a notorious fact of another (that is, universally known) is generally not presumed. It is therefore only a general rule (relative value) that knowledge or awareness of the aforesaid matters is presumed by law. In the remainder of the canon, however, it is stated that ignorance regarding a non-notorious fact of another is presumed (always understood, absolute value) until the contrary is proved. For the CIC, therefore, although it is not presumed, the possibility of ignorance of the law and ignorance of the penalty is explicitly admitted. This principle must always be kept in mind, especially because of the contrast it creates with the civil and penal laws of many States, for which ignorance of the law and of the penalty is not only not presumed, but never excuses. Consequently the CIC in book V (on crimes and penalties), although it lays down (can. 2200 § 2) that, once the external violation of the law is established, in the external forum malice is presumed until the contrary is proved, nevertheless by can. 2202 it peremptorily establishes that the violation of a law that was ignored is in no way imputable if the ignorance was inculpable, while imputability itself diminishes proportionally with the decrease in culpability (§ 1); for ignorance of the penalty alone attached to the violation, it is stated that it does not remove the imputability of the crime, but only diminishes it (§ 2). In any case, even for the CIC it is an axiom that ignorance must be proved by the one who alleges it, and that the imputability of the crime depends also on the fault the person had in ignoring the law (v. also ERRORE; PENA).
III. IGNORANCE IN ITALIAN LAW
1. In the Civil Code
Error or ignorance occurs above all in the book of obligations (in contracts); nor are particular rules lacking concerning marriage, successions, donations, and a few other points. It must not be forgotten, however, as a general principle, that state laws, although they generally take error and ignorance into consideration, prefer to protect the certainty and stability of legal relationships. Nevertheless there is only one case in which error is totally irrelevant and therefore grants no excuse, and it is the one contained in art. 483, para. 1: "The acceptance of an inheritance cannot be contested if it is vitiated by error."
This premised, here is what civil legislation provides regarding ignorance: a) in juridical transactions ignorance does not render the act null (of absolute nullity), but only rescindable (voidable). This is deduced from art. 1427: "the contracting party whose consent was given by error ... may request the annulment of the contract"; which annulment, moreover, is granted only in accordance with the law, that is, when the error "is essential and is recognizable by the other contracting party" (art. 1428). And it is the Civil Code itself that determines when ignorance is essential. In relation to error in calculation it is established that this is a cause of annulment only if, referring to quantity, it was determinative of the consent; otherwise only the possibility of rectification is granted (art. 1430). In other cases, even if ignorance has directly influenced the determination of the will, it is not a cause of annulment of the transaction, inasmuch as what is relevant is not the error as to the motive that induced the contracting, but only its unlawfulness (Barassi); b) for wills and succession it is established that the testamentary disposition may be contested by anyone who is interested, only if it is the effect of error (art. 624, para. 1), which evidently means that in such a case the will is not rescindable (voidable) but absolutely null (absolute nullity). The same article, para. 2, grants, contrary to the ordinary rule admitted for juridical transactions, that error of law or of fact even as to the motive (impulsive) is a cause of annulment, provided that the motive appears from the will and is the only one that determined the disposition. It is further admitted that the testamentary disposition has effect even if the person was erroneously indicated, provided that it appears without equivocation whom the testator wished to name
(art. 625, para. 1); this also holds in the case of the object of the dispositions, where this too has been erroneously indicated (art. cit., para. 2); c) for donation it is established, contrary to the general rule on juridical transactions, that it may be contested for error as to the motive, whether of fact or of law, if the motive appears from the act and is the only one that determined the donor (art. 787); d) in the settlement it is expressly established that it "cannot be annulled for error of law relating to the questions that have been the subject of controversy between the parties" (art. 1969); e) finally, for confession (cf. art. 2730 for the notion) it is determined that it "cannot be revoked unless it is proved that it was determined by error of fact" (art. 2732).
2. In the Penal Code
The distinction between ignorance of law and ignorance of fact is even more essential in Italian criminal law; it is at the antipodes with the CIC in that, at art. 5, it categorically establishes that "no one may invoke in his own excuse the ignorance of the criminal law." There thus appears in all its crudeness the very grave conclusion that in this matter any distinction between culpable and inculpable ignorance is useless.
Art. 5 constitutes in fact, according to all jurisprudence, an absolute norm, required by imperative reasons of public and political order, a norm that in turn creates, for many at least, a presumption iuris et de iure. For this reason it can easily happen that, once the norm is applied, the injustice or at least the inopportuneness of that law remains manifest, along with the enormous contrast between it and psychological reality: moreover, the impossibility of knowing the whole mass of today's indefinite laws, at least on the part of the masses, is evident. Practically, therefore, it is better to speak of a legal fiction rather than of a presumption of knowledge of the criminal law. It is perhaps from this observation that even in Italian doctrine the opinion is gaining ground that, at least in some cases, due account should be taken of ignorance of the criminal law. However, as art. 5 itself observes, the ignorance that cannot be adduced as an excuse is ignorance of the criminal law alone. In truth it is not even so easy to distinguish between penal and non-penal laws; the term is in fact somewhat vague and leaves room for various interpretations. It may be said that, roughly, every provision that envisages a crime, whether felony or misdemeanor, is to be considered penal, even if it is found outside the circle of the norms of the Penal Code (for example, in special laws), every provision that has an integrative value with respect to them, and the various precepts, even if of a civil nature; only norms of a purely civil, commercial, administrative, constitutional order, etc., remaining excluded, in the violations of which ignorance of law excuses from punishability if it has given rise to an error as to the fact that constitutes the crime. Nevertheless, as was hinted, today the tendency is toward the rigorous application of art. 5 only in cases of felonies, while in misdemeanors the orientation toward greater mitigation is already evident.
The Penal Code is milder as regards error and ignorance of fact. It is in fact stated at art. 47: "the error as to the fact that constitutes the crime excludes the punishability of the agent." Therefore, since it is necessary that the ignorance of fact, in order for art. 47 to apply, bear on an essential element, it cannot even be held as an axiom that ignorance of fact excuses: ignorance, for example, as to accessory or accidental elements is not protected by this article. Nor is culpable ignorance protected if the concrete fact committed is envisaged by the law as a negligent felony (art. 47 itself): the doctor who performs an autopsy on a person believing him to be a corpse will answer for negligent homicide; he will likewise answer for personal injury if he performs an operation that through culpable ignorance he deems necessary while it is not. If, however, the law does not envisage the fact even as a negligent felony, ignorance excuses from the whole fact (art. 47 itself): thus one who steals believing himself, even through culpable ignorance, to be in a state of necessity, is subject to no penalty, since theft under the law is punishable only if the product of intent, whereas in the case it is only negligent; the same applies to one who inadvertently takes on the train another's suitcase believing it to be his own, even if the inadvertence is culpable.
Naturally "the error as to the fact that constitutes a given crime does not exclude punishability for a different crime" (art. 47, para. 2), supposing that the essential elements of this are not lacking: one who offends a public official believing him to be a simple citizen does not answer for outrage but answers for insult; one who kills his father without recognizing him does not commit parricide but is punishable for simple homicide.
Other particular provisions are found in arts. 48, 49, 59, 60, 82, 83. Considerable importance attaches to art. 539, which establishes that, for the crimes envisaged in title IX of the Penal Code (arts. 519-44, on crimes against public morality and decency), the guilty party cannot invoke in his own excuse ignorance of the age of the offended person if the latter is a minor under fourteen years of age, and this not only when the age constitutes exclusively an aggravating circumstance (for example, in art. 531, para. 1), but also when it is a constitutive element (for example, art. 519): an ignorance of fact as to an essential element which, most exceptionally, contrary to the general rule, does not excuse.
IV. OBSERVATIONS ON CANON AND STATE CRIMINAL LAW
The CIC certainly reflects natural law better than civil laws do as regards the influence of ignorance on the acts that a person performs. Already by defining crime as "... moraliter imputabilis legis violatio ..." (can. 2195 § 1), it requires not only the objective responsibility but also the subjective responsibility of the person. It is not conceivable that a person should have to answer for what he has done in ignorance of the law without any fault of his own. For this reason the CIC not only frees from all responsibility the subject who proves his ignorance, but often itself presumes it by law (can. 16 § 2), leaving in this a relative freedom to the judge, which does not happen in the Italian Criminal Code and in those of many States. However, it must be recognized that for the criminal laws of the State it is more difficult to set aside the principle of art. 5 of the Italian Criminal Code than it is for the CIC: the State, among other things, lacks many of the elements that the Church instead possesses. Moreover, various other States follow a much more moderate approach, which has its origin in fairly notable historical precedents. Some are completely silent, for example the German and Dutch Criminal Codes, but others, for example the Austrian one, establish that, although ignorance of the criminal law does not excuse in crimes, it nevertheless excuses in minor offences.
V. IGNORANCE IN MORALS
Let us now turn our gaze to morals, which, while preserving natural law, seeks to plumb the true scope of human acts, considering them more from the real side, that is, of conscience, than from the apparent one. Greater unanimity characterizes moral doctrine on ignorance. Keeping in mind the notion and the divisions set out at the beginning, we shall try to formulate clear principles, valid naturally for the internal forum, even if at variance with the external one.
Of the different species of vincible ignorance (that is, culpable): a) affected ignorance, far from diminishing responsibility, may be said in a certain sense to increase it, at least in many cases, inasmuch as it denotes the perverse will to ignore on purpose what ought to serve to make one act rightly or to make one change the incorrect and immoral manner maintained by the person; b) crass or supine ignorance, though less grave than affected ignorance, is nevertheless very grave, inasmuch as it is a sign of no good will in the knowledge of the law, and, amounting almost to absolute carelessness, leaves the responsibility for actions complete; c) gravely culpable ignorance too, without other aggravating circumstances, creates a grave responsibility in the subject; d) as has already been mentioned, lightly culpable ignorance, whatever effect it produces (even if objectively morally grave), constitutes a venial sin, although the law takes no account of it at all. Invincible ignorance (antecedent)
on the other hand excuses from every responsibility, inasmuch as one who acts in that state lacks, without any fault, the knowledge of the eventual immorality of the action: and it is of natural law that no one can will what he does not know.
Accordingly, as far as moral theology is concerned, the following principles may be briefly formulated: antecedent ignorance, being invincible, and therefore free from any fault, fully excuses from every responsibility for the effects produced by it; concomitant ignorance, not influencing the action, can neither excuse nor accuse, inasmuch as in relation to it, it is simply ineffective; consequent ignorance always accuses, because it is the fruit of fault in the person: affected ignorance particularly, but also crass or supine ignorance and any other that is gravely or lightly culpable. Finally, it is to be kept in mind that any ignorance, with the partial exception of affected ignorance, diminishes the responsibility of the human act, inasmuch as one who violates a law that he does not know, despite grave or most grave fault in this ignorance, violates it only indirectly: and it is a moral principle that the directly voluntary is more grave than the indirect.
VI. VARIOUS QUESTIONS
Brief mention must also be made of the relation between i.[gnorance] and certain states of the person or of human acts: a) for a normal man who has reached the full use of reason, invincible i.[gnorance] (that is, not culpable either in itself or in its cause) of the existence of God does not seem possible in the sense that he can simply be ignorant of it; b) as regards the moral norms that govern human acts, it is commonly held that it is not possible to be ignorant of the first fundamental moral principles (evil must be avoided; good must be done; one must love God; one must not do to others what one does not wish done to oneself; etc.); at times, though very rarely, i.[gnorance] of the immediate consequences of these first principles is possible; more easily can one be ignorant of their ultimate consequences (for example, whether in this or that case there is an obligation to make restitution; whether there is an obligation to love one's enemies); c) as for the Sacraments, since they operate by their intrinsic virtue and power (ex opere operato, as the theologians say), there is no doubt that they are validly confected even by one who is ignorant of what the Sacraments are, provided there is the intention of doing what the Church intends to do (for example, Baptism can be validly administered by an unbeliever who knows nothing at all of the Christian religion; Matrimony between two Christians is a Sacrament even if they are ignorant that it is a Sacrament); d) one who is ignorant that on a given day there is an obligation to hear Mass because it is a holy day of obligation, nonetheless satisfies the precept if in fact he hears it.
Particular attention deserves ignorance regarding the object of the marriage contract, as a defect of consent; on which v. ERRORE.
Bibliography19 works
Lorenzo Simeone