IGNORANZA

IGNORANCE. — In its broadest sense, ignorance is the privation of knowledge or learning in a subject capable of possessing II. If the subject is incapable, one rather speaks of nescience. Thus understood, ignorance is first and foremost a privation. In Latin, there are two terms to indicate this state of the thinking subject: ignorantia, which denotes the habitual state; and ignotatio, which denotes the present state of one who does not know.

In a narrower sense, the term ignorance is commonly used to denote the culpable lack of knowledge. Thus, a second aspect enters into the concept of ignorance: the culpability of one’s habitual or present state. Ignorance is distinguished from error, which is an inexact or deficient cognition, or rather the holding as true of something objectively false (a false judgment); from inadvertence, which is the momentary failure to consider what the person knows; and from forgetfulness, whether temporary or perpetual, of knowledge previously possessed. Nevertheless, for moral and juridical purposes, error, inadvertence, and forgetfulness are equivalent to ignorance, and consequently what is said of ignorance applies to them. For particular aspects and considerations, see also ERROR.

**SUMMARY:**

I. Divisions of Ignorance

II. Ignorance in Canon Law

III. Ignorance in Italian Law

IV. Observations on Canonical and Statutory Criminal Law

V. Ignorance in Moral Theology

VI. Various Questions.

I. DIVISIONS OF IGNORANCE

With regard to the agent’s responsibility, a distinction is made between invincible and vincible ignorance. Invincible ignorance is understood to be that which is absolutely ineliminable (as moralists say, physically) or can only be eliminated by extraordinary effort, to which the person is not bound: whoever exercises morally sufficient diligence in seeking the truth that ought to be known—i.e., proportional to the gravity of the matter—and nonetheless fails to know it, is in invincible ignorance. Vincible ignorance, on the other hand, is that which exists due to a lack of proportional and obligatory effort in seeking the truth. It is further subdivided into affected ignorance, i.e., deliberately willed in order to exempt oneself from observing the law; crass or supine ignorance, resulting from complete negligence in seeking the truth; simply vincible ignorance, though grave (inasmuch as the disproportion between the search and the gravity of the duty to know what one ought to know remains grave even after insufficient research); and vincible ignorance that is only slightly culpable. Naturally, although the distinctions are clear and well-defined, it is not always easy in practice to distinguish between one kind and another, e.g., between crass or supine ignorance and simply grave ignorance, or between slightly culpable ignorance and that which is entirely inculpable.

With regard to the influence of ignorance on action, a distinction is made between antecedent, concomitant, and consequent ignorance. Antecedent ignorance is that which exists in a person without any fault or will on his part and is the reason why he acts differently from how he would have acted had he known the matter; for this reason, antecedent ignorance is not only not the effect of bad will or negligence in seeking the truth, but is an entirely involuntary cause of human action. Concomitant ignorance denotes the state of one who, while intending by other prior motives the effect actually produced by his action, nonetheless achieves that effect through ignorance and thus, in fact, involuntarily: that is, the effect which the agent did not intend in acting was not produced because of his ignorance; yet another effect ensued which he did not then intend, but which, had he been forewarned (had there been no such supposed ignorance), he would have intended. It must be repeated, however, that in fact he did not intend or foresee it when he performed the action from which it resulted. Concomitant ignorance is therefore 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 simultaneously the cause and motive of the action. It is called consequent because it is the consequence of an act of will by the person who wished to remain ignorant.

With regard to the object of the ignorance of the will, a distinction is made between ignorance of law (ignorantia iuris), ignorance of penalty (ignorantia poenae), and ignorance of fact (ignorantia facti), i.e., ignorance concerning the nature or an essential element of the object pursued by the will. Ignorance of law concerns the existence or extent of a law, whether natural, divine, ecclesiastical, or civil: the person is ignorant of the content or scope of the law itself, while being informed of the content or scope of the law itself.

Ignorance of penalty occurs when the subject, though 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 attached penalty for violators, occurs in cases where the person believes that the act he performs is not covered by the law, inasmuch as some essential element required by the law to bring the object of the action under its authority escapes him.

II. IGNORANCE IN CANON LAW

The Code of Canon Law (CIC) sets forth in its general norms a principle that is partly of relative value and partly of absolute value. Canon 16 § 2 expressly states that ignorance or error concerning the law or penalty, or concerning a fact pertaining to oneself (i.e., one’s own person) or a notorious fact concerning another (i.e., universally known), is generally not presumed. Thus, it is only a general rule (of relative value) that knowledge of the aforementioned matters is presumed by law. However, the same canon goes on to state that ignorance of a non-notorious fact concerning another is presumed (this being, of course, of absolute value) until the contrary is proven. Therefore, according to the CIC, although ignorance of the law and ignorance of penalty are not presumed, their possibility is explicitly admitted. This principle must always be kept in mind, especially because of the contrast it creates with the civil and criminal laws of many states, for which ignorance of the law and penalty is not only not presumed but never excuses. Consequently, in Book V of the CIC (on delicts and penalties), although it is laid down (can. 2200 § 2) that, given the external violation of the law, dolus is presumed in the external forum until the contrary is proven, it is nonetheless peremptorily established by can. 2202 that the violation of a law due to ignorance is in no way imputable if the ignorance was inculpable, while imputability itself decreases proportionally with the decrease in culpability (§ 1); with regard to ignorance of only the penalty attached to the violation, it is stated that this does not remove the imputability of the delict but only diminishes it (§ 2). In any case, even according to the CIC, it is certain that ignorance must be proven by whoever alleges it, and that the imputability of the delict also depends on the fault of the person in ignoring the law (see also ENROUGE; PENA).

III. IGNORANCE IN ITALIAN LAW

1. In the Civil Code

Error or ignorance is encountered especially in the Book of Obligations (in contracts); there are, however, particular norms regarding marriage, successions, donations, and a few other points. It must not be forgotten, however, as a general principle, that statutory laws, although they generally take error and ignorance into account, prefer to safeguard the certainty and stability of juridical relationships. Nevertheless, there is only one case in which error is entirely irrelevant and therefore grants no excuse, and that is the case contained in art. 483 para. 1: “The acceptance of an inheritance cannot be contested if it is vitiated by error.”

With this premise, here is what civil legislation stipulates regarding error:

a) In legal transactions, error does not render the act void (absolute nullity), but only voidable (annullability). This is deduced from Article 1427: “the contracting party whose consent was given in error... may seek the annulment of the contract”; such annulment, moreover, is granted only in accordance with the law, namely when the error is essential and recognizable by the other party” (Article 1428). The Civil Code itself determines when error is essential. With regard to error in calculation, it is established that this is grounds for annulment only if, insofar as it pertains to quantity, it was determinative of consent; otherwise, only the possibility of correction is granted (Article 1430). In other cases, even if error directly influenced the determination of will, it is not grounds for annulment of the transaction, since what is relevant is not error regarding the motive that induced contracting, but only its illicit nature (Barassi).

b) With regard to wills and succession, it is established that a testamentary disposition may be contested by any interested party only if it is the effect of error (Article 624, second paragraph), which evidently means that in such a case the will is not merely voidable but absolutely void (absolute nullity). The same article, second paragraph, departs from the ordinary rule applicable to legal transactions by stipulating that error of law or fact, even regarding the motive (impulsive cause), is grounds for annulment, provided that the motive is evident from the will and is the sole reason that determined the disposition. It is also admitted that a testamentary disposition may have effect even if the person was erroneously indicated, provided that it is clear without ambiguity whom the testator intended to name (Article 625, first paragraph); this also applies in the case of the object of the disposition, if this too was erroneously indicated (Article cited, second paragraph).

c) With regard to donation, it is stipulated, contrary to the general rule on legal transactions, that it may be contested for error regarding the motive, whether of fact or law, if the motive is evident from the act and is the sole reason that determined the donor (Article 787).

d) In settlement agreements, it is expressly stipulated that such agreements cannot be annulled for error of law regarding the matters that were the subject of controversy between the parties (Article 1969).

e) Finally, with regard to confession (cf. Article 2730 for the definition), it is determined that it cannot be revoked unless it is proven that it was determined by error of fact (Article 2732).

2. In the Penal Code

The distinction between error of law and error of fact is even more essential in Italian penal law; it stands in stark contrast to the CIC, since Article 5 categorically stipulates that “no one may invoke ignorance of the penal law as an excuse.” The grave conclusion thus emerges that in this matter any distinction between culpable and inculpable error is irrelevant.

Article 5 is, according to all jurisprudence, an absolute norm, required by overriding considerations of public and political order; this norm in turn, for many at least, creates a presumption *iuris et de iure*. For this reason, it may easily happen that, once the norm is applied, the injustice—or at least the incorrigibility—of the law becomes apparent, as does the enormous contrast between this law and psychological reality. It is evident, moreover, that it is impossible for the average person to know the entire mass of indefinite laws in force today. In practice, therefore, it is better to speak of a legal fiction rather than a presumption of knowledge of the penal law. It is perhaps from this observation that, even in Italian doctrine, the opinion is gaining ground that, at least in some cases, due consideration should be given to ignorance of the penal law. However, as the same Article 5 notes, the ignorance that cannot be invoked as an excuse is ignorance of the penal law alone. In truth, it is not so easy to distinguish between penal and non-penal laws; the term is rather vague and admits of various interpretations. Broadly speaking, one may say that any provision that envisages a crime, whether felony or misdemeanor, is to be considered penal, even if it is found outside the scope of the norms of the Penal Code (e.g., in special laws), as are any provisions that have an integrative function with respect to such norms, as well as various precepts, even of a civil nature; excluded are only norms of a purely civil, commercial, administrative, constitutional, etc., nature, the violation of which does not excuse *ignorantia iuris* if it has given rise to an error regarding the act that constitutes the crime. Nevertheless, as noted above, today there is a trend toward the strict application of Article 5 only in cases of felonies, while in the case of misdemeanors a more mitigated approach is already evident.

The Penal Code is more lenient with regard to error and ignorance of fact. Article 47 states: “error regarding the act that constitutes the crime excludes the punishability of the agent.” Therefore, since it is necessary that *ignorantia facti*, in order to be covered by Article 47, pertain to an essential element, it cannot even be taken as an axiom that *ignorantia facti* excuses: for example, *ignorantia facti* regarding accessory or incidental elements is not protected by this article. Nor is culpable ignorance protected if the concrete act committed is envisaged by the law as a culpable felony (Article 47 itself): the physician who dissects a person believing them to be dead will be liable for culpable homicide; likewise, the physician who performs an operation that, due to culpable ignorance, they believe to be necessary when it is not, will be liable for personal injury. If, however, the law does not envisage the act even as a culpable felony, ignorance excuses the entire act (Article 47 itself): thus, one who steals believing, even due to culpable ignorance, to be in a state of necessity is not subject to any penalty, since theft is punishable only if it results from dolus, whereas in this case it is only culpable; the same applies to one who inadvertently takes another’s suitcase on a train, believing it to be their own, even if the inadvertence is culpable.

Naturally, “error regarding the act that constitutes a given crime does not exclude punishability for a different crime” (Article 47, second paragraph), provided that the essential elements of the latter are present: one who insults a public official believing them to be a private citizen is not liable for contempt but is punishable for slander; one who kills their father without recognizing them does not commit parricide but is punishable for simple homicide.

Other specific provisions are found in Articles 48, 49, 59, 60, 62, 83, and 83. Considerable importance attaches to Article 539, which stipulates that, for the felonies envisaged in Title IX of the Penal Code (Articles 519–544, crimes against public morality and decency), the guilty party cannot invoke ignorance of the age of the victim as an excuse if the latter is under fourteen years of age, and this not only when age constitutes an aggravating circumstance (e.g., in Article 531, second paragraph) but also when it is a constitutive element (e.g., Article 519)—an exceptionally rare case in which error regarding an essential element, contrary to the general rule, does not excuse.

IV. OBSERVATIONS ON CANON AND CIVIL PENAL LAW

The Pio-Benedictine Code of Canon Law (CIC) certainly reflects natural law more accurately than civil laws do with regard to the influence of ignorance (ì.) on the acts that a person performs. By defining delict as «... moraliter imputabilis legis violatio...» (can. 2195 § 1), it requires not only objective responsibility but also subjective responsibility on the part of the person. It is inconceivable that a person should be held answerable for what he has done while being ignorant of the law without any fault of his own. For this reason the CIC not only absolves the subject who proves his ignorance but often even presumes it by law (can. 16 § 2), leaving the judge a certain freedom in this matter, which does not occur in the Italian Penal Code or in those of many states. It must nevertheless be acknowledged that it is more difficult for the penal laws of the State to dispense with the principle of art. 5 of the Italian Penal Code than it is for the CIC: among other things, the State lacks many of the elements that the Church possesses. Moreover, various other states follow a much more moderate approach, deriving from quite notable historical precedents. Some, for example, the German and Dutch penal codes, remain completely silent on the matter, while others, such as the Austrian, lay down that although ignorance of the penal law does not excuse in the case of crimes, it does excuse in the case of minor offences.

V. IGNORANCE IN MORAL THEOLOGY

Let us now turn to moral theology, which, while safeguarding natural law, seeks to probe the true import of human acts, considering them more from the standpoint of reality, that is, of conscience, than from that of appearance. Moral theology shows greater unanimity regarding ignorance. Bearing in mind the notion and the distinctions set out at the beginning, an attempt will be made to formulate clear principles, valid, of course, for the internal forum, even if they differ from those of the external forum.

Of the various kinds of vincible (i.e., culpable) ignorance (ì.): a) affected ignorance not only does not diminish but in a certain sense increases responsibility, at least in many cases, inasmuch as it denotes a perverse will deliberately to ignore what should serve to make a person act rightly or to change his incorrect and immoral conduct; b) crass or supine ignorance, although less grave than affected ignorance, is nevertheless very serious, since it is a sign of no good will in knowing the law, and, being almost tantamount to absolute heedlessness, leaves full responsibility for one’s actions; c) even gravely culpable ignorance, without other aggravating factors, creates grave responsibility in the subject; d) as has already been noted, slightly culpable ignorance, whatever effect it may produce (even if objectively grave in a moral sense), constitutes a venial sin, although the law takes no account of it at all. Vincible ignorance (antecedent)

on the other hand excuses from all responsibility, since the person acting in that state lacks, without any fault of his own, knowledge of the possible immorality of his action: and it is a principle of natural law that no one can be held to will what he does not know.

Therefore, as regards moral theology, the following principles may be briefly formulated: ignorance that is invincible, and therefore free from any fault, completely excuses from all responsibility for the effects it produces; ignorance that is vincible does not influence the action and so cannot either excuse or accuse in relation to it, since in this respect it is simply ineffective; ignorance always accuses, because it is the fruit of fault in the person. Ignorance is a factor in responsibility, but so too are crass or supine ignorance and any other kind that is gravely or slightly culpable. It should finally be borne in mind that all ignorance, except in part affected ignorance, diminishes the responsibility attaching to a human act, inasmuch as a person who breaks a law he does not know is doing so only indirectly, despite the grave or very grave fault involved in that ignorance: and it is a moral principle that direct voluntariness is more serious than indirect voluntariness.