Ignorance

IGNORANZA. – In the broadest sense, it is the deprivation of knowledge or science in a subject capable of possessing II. If the subject is incapable, one speaks rather of nescience. Thus understood, i. is first and foremost a deprivation. In Latin there are two words for indicating this state of the thinking subject: ignorantia indicates the habitual state; ignoratio, the actual state of one who does not know.

In a more restricted sense, the term i. is generally understood to mean a culpable lack of knowledge. The concept of i. therefore includes a second aspect: culpability for one’s habitual or actual state. I. is distinct from error, which is an inaccurate or deficient cognition, or, better, the taking as true of something objectively false (false judgment); from inadvertence, which is the momentary failure to consider something known by the person; and from forgetfulness, whether temporary or permanent, 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 applies to them. For particular aspects and considerations, V. ERRORE.

SUMMARY:

I. Divisions of i

II.

I. in canon law

III.

I. in Italian law

IV. Observations on canon and state criminal law

V.

I. 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 as that which is absolutely impossible to eliminate (the moralists say, physically impossible) or can be eliminated only through an extraordinary effort, to which the person is not bound: whoever applies morally sufficient diligence in seeking the truth that he must know—that is, diligence proportionate to the gravity of the matter—and nevertheless fails to know it, is in a state of invincible ignorance. Vincible ignorance, on the other hand, is that which exists because the person has failed to undertake a proportionate and obligatory search for the truth. It is subdivided into affected ignorance, that is, deliberately chosen in order to avoid observing the law; gross or supine ignorance, the effect of the person’s complete disregard in seeking the truth; simply vincible though grave ignorance (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 inquiries); and vincible ignorance that is only lightly culpable. Naturally, although the concepts are clear and well differentiated, it is easy to understand that in practice it will not always be easy to distinguish one kind of ignorance from another, for example, gross or supine ignorance from simply grave ignorance, or lightly culpable ignorance from that which is not culpable at all.

With regard to the influence of ignorance on action, there are antecedent, concomitant, and consequent ignorance. Antecedent ignorance is that which exists in a person without any fault or intention on his part and is the reason why he acts differently from how he would have acted had he known the matter; consequently, antecedent ignorance is not only the effect of neither ill will nor negligence in seeking the truth, but is a wholly involuntary cause of human action. Concomitant ignorance denotes the state of one who, although for other preceding reasons desiring the effect that he has in fact obtained through his action, nevertheless, in acting, achieved that effect through ignorance and therefore, in fact, involuntarily: that is, the effect that the agent desired in acting did not occur because ignorance existed in him; another effect nevertheless resulted, which he did not desire at the time but which, had it been foreseen (if the supposed ignorance had not existed), the agent would have desired. It must be repeated, however, that in fact he did not desire it or intend it when he performed the action from which it resulted. Therefore, 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 desired by the person and at the same time both the cause and the motive of the action. It is called consequent because it is the consequence of an act of the person’s will by which he chose to remain ignorant.

With regard to the object unknown to the will, a distinction is made between ignorance iuris, that is, of the law; ignorance poenae, that is, of the penalty; and ignorance facti, 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 scope of a law, whether natural, divine, ecclesiastical, or civil: the person is unaware that a particular law exists or has an inaccurate understanding of the content or extent of the law itself.

Ignorance of the penalty occurs when the subject, although knowing the law, is unaware that a penalty is attached to its violation.

Ignorance of fact, on the other hand, presupposing knowledge of the law and, where applicable, also of the penalty attached to its violation, occurs in cases in which the person believes that the act he performs is not covered by it, because some essential element required by the law escapes him, for the object of the action to fall under its authority.

II. IGNORANCE IN CANON LAW

In its general norms, the CIC lays down a principle that has, in part, a relative value and, in part, an absolute value. In can. 16 § 2 it expressly states that ignorance or error concerning the law or the penalty, or concerning one’s own act (that is, one concerning the person herself or himself), or concerning a notorious act of another (that is, universally known), is generally not presumed. Thus it is

only as a general rule (relative value) that knowledge or awareness of the aforementioned matters is presumed in law. On the other hand, the canon goes on to state that ignorance concerning an act of another that is not notorious is presumed (always understood, with absolute value) until the contrary is proved. Thus, according to the CIC, although it is not presumed, the possibility of ignorance of the law and of the penalty is expressly admitted. This principle must always be borne in mind, especially because of the conflict it creates with the civil and penal laws of many States, according to which ignorance of the law and of the penalty is not only not presumed, but never excuses. Consequently, in Book V of the CIC (on offenses and penalties), although it enacts (can. 2200 § 2) that, once an external violation of the law has been established, in foro externo intentionality is presumed, until the contrary is proved, it nevertheless peremptorily establishes in can. 2202 that an ignored violation of the law is in no way imputable if the ignorance was inculpable, whereas imputability itself decreases proportionally as culpability decreases (§ 1); with regard to ignorance of the penalty alone attached to the violation, it states that this does not remove imputability for the offense, but only diminishes it (§ 2). In any case, for the CIC too it is an axiom that ignorance must be proved by whoever alleges it, and that the imputability of the offense also depends on the fault that the person incurred in ignoring the law (v. 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); there are, however, also particular provisions concerning marriage, successions, donations, and certain other matters. It must nevertheless not be forgotten, as a general principle, that state laws, although they generally take error and ignorance into consideration, prefer to safeguard the certainty and stability of legal relationships. Despite this, there is one case in which error is entirely irrelevant and therefore affords no excuse: that contained in art. 483, first paragraph: “Acceptance of an inheritance cannot be challenged if it is vitiated by error.”

With this premise, the following is what civil legislation provides concerning ignorance: a) in legal transactions, ignorance does not render the act null (with absolute nullity), but merely subject to rescission (annulability). This follows from art. 1427: “the contracting party whose consent was given through error ... may seek annulment of the contract”; such annulment, however, is granted only by law, that is, when the error “is essential and recognizable by the other contracting party” (art. 1428). The Civil Code itself determines when ignorance is essential. With regard to error in calculation, it is established that this constitutes grounds for annulment only if, relating to quantity, it was determinative of the consent; otherwise, only the possibility of rectification is granted (art. 1430). In other cases, even if ignorance directly influenced the determination of the will, it is not grounds for annulment of the transaction, since what is relevant is not error concerning the motive that led one to contract, but only the unlawfulness of that motive (Barassi); b) with regard to wills and succession, it is established that a testamentary disposition may be challenged by anyone who has an interest only if it is the effect of error (art. 624, second paragraph), which evidently means that in this case the will is not rescindable (annullable) but absolutely void (absolute nullity). The same article, second paragraph, contrary to the ordinary rule admitted for legal transactions, provides that an error of law or of fact, including one concerning the (impelling) motive, is grounds for annulment, provided that the motive appears from the will and was the sole motive that determined the disposition. It is furthermore admitted that a testamentary disposition remains effective even if the person was erroneously identified, provided that it is clear beyond doubt whom the testator intended to name

(art. 625, first paragraph); the same applies to the object of the dispositions, if this too was erroneously identified (cited article, second paragraph); c) with regard to donations, contrary to the general rule concerning legal transactions, it is established that a donation may be challenged for error concerning the motive, whether of fact or of law, if the motive appears from the instrument and was the sole one that determined the donor (art. 787); d) with regard to settlement agreements, it is expressly established that they “cannot be annulled for an error of law relating to questions that were the subject of dispute between the parties” (art. 1969); e) finally, with regard to confession (cf. art. 2730 for the definition), it is established that it “may be revoked only if it is proved that it was determined by an error of fact” (art. 2732).

2. In the Criminal Code

The distinction between ignorance of law and ignorance of fact is even more essential in Italian criminal law; in this respect it is diametrically opposed to the CIC, since art. 5 categorically establishes that “no one may invoke ignorance of the criminal law as an excuse.” The extremely grave conclusion therefore appears in all its starkness: in this matter, any distinction between culpable and blameless ignorance is useless.

Article 5 in fact constitutes, according to the entire body of jurisprudence, an absolute rule, required by compelling reasons of public and political order, a rule which, in turn, creates for many at least a presumption iuris et de iure. It may therefore easily happen that, once the rule has been applied, the injustice or at least the inappropriateness of that law, and the enormous contrast between it and psychological reality, remain apparent: moreover, the impossibility of knowing the entire mass of today’s indefinite laws is obvious, at least on the part of the general population. In practice, therefore, it is better to speak of a legal fiction rather than of a presumption that the criminal law is known. It is perhaps as a result of this observation that, in Italian scholarship too, the view is gaining ground that, at least in certain cases, due account should be taken of ignorance of the criminal law. Nevertheless, as art. 5 itself observes, the ignorance that cannot be pleaded as an excuse is ignorance of the criminal law alone. In truth, it is not even so easy to distinguish between criminal and non-criminal laws; the term is in fact somewhat vague and permits various interpretations. It may be said, broadly speaking, that every provision providing for an offence, whether a felony or a contravention, is to be regarded as criminal, even if it is found outside the sphere of the provisions of the Criminal Code (for example, in special laws); this also applies to every provision that has an supplementary function in relation to them, and to the various precepts, even if they are civil in character. The only provisions excluded are those of a purely civil, commercial, administrative, constitutional, and similar nature; in cases of violations of these, ignorance iuris excuses from punishment if it has produced an error concerning the fact constituting the offence. Nevertheless, as mentioned, current thinking is moving toward the rigorous application of art. 5 only in cases of felonies, whereas in contraventional offences the tendency toward greater mitigation is already evident.

The Criminal Code is more lenient with regard to error and ignorance of fact. Article 47 indeed states: “Error concerning the fact constituting the offence excludes the agent’s punishability.” Therefore, since ignorance facti, for art. 47 to apply, must concern an essential element, it cannot even be regarded as an axiom that ignorance facti affords an excuse: ignorance, for example, concerning accessory or accidental elements is not protected by this article. Nor is culpable ignorance protected when the concrete act committed is defined by law as a negligent felony (art. 47 itself): a physician who performs an autopsy on a person believing him to be dead will be liable for negligent homicide; he will likewise be liable for personal injury if he performs an operation which, through culpable ignorance, he considers necessary when it is not. If, however, the law does not define the act even as a negligent felony, ignorance excuses the entire act (art. 47 itself): thus, a person who steals while believing, even through culpable ignorance, that he is in a state of necessity is not subject to any punishment, since under the law theft is punishable only if it is the result of intent, whereas in this case it is merely negligent; the same applies to a person who inadvertently takes another’s suitcase on a train, believing it to be his own, even if the inadvertence is culpable.

Naturally, “error concerning the fact constituting a particular offence does not exclude punishability for a different offence” (art. 47, second paragraph), provided that the essential elements of the latter are not lacking: a person who insults a public official, believing him to be an ordinary citizen, is not liable for contempt but is liable for insult; a person who kills his father without recognizing him does not commit parricide but is punishable for ordinary homicide.

Other particular provisions are contained in arts. 48, 49, 59, 60, 82, and 83. Article 539 is of considerable importance; it establishes that, for the offences provided for in title IX of the Criminal Code (arts. 519–44, offences against public morality and good morals), the offender may not invoke ignorance of the victim’s age as an excuse if the latter is under fourteen years of age. This applies not only when age constitutes merely an aggravating circumstance (for example, in art. 531, first paragraph), but also when it is a constituent element of the offence (for example, art. 519): ignorance facti concerning an essential element which, exceptionally and contrary to the general rule, affords no excuse.

IV. OBSERVATIONS ON CANON AND STATE PENAL LAW

The CIC certainly reflects natural law better than civil laws with regard to the influence of ignorance on the acts performed by man. Already by defining a delict 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 inconceivable that a person should be held answerable for what he has done while ignorantly violating the law through no 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 as a matter of law (can. 16 § 2), thereby leaving the judge a certain freedom, which does not occur in the Italian Penal Code or in those of many States. Nevertheless, it must be acknowledged that, for the penal laws of the State, it is more difficult to set aside 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 possessed by the Church. Moreover, various other States follow a much more moderate approach, originating in fairly significant historical precedents. Some remain completely silent, for example, the German and Dutch Penal Codes, whereas others, for example, the Austrian Code, establish that, although ignorantia legis penalis does not excuse in delicts, it nevertheless excuses in contraventions.
V. L'

I. NELLA MORALE

Let us now turn our attention to morality, which, while safeguarding natural law, seeks to probe the true import of human acts, considering them more from their real aspect, that is, from the standpoint of conscience, than from their apparent aspect. Greater unanimity characterizes the moral doctrine concerning i. Keeping in mind the notion and divisions set out at the beginning, an attempt will be made to formulate clear principles, naturally valid for the internal forum, even if they differ from those of the external forum.

Of the various kinds of vincible i. (that is, culpable ignorance): a) affected i., rather than diminishing responsibility, may be said in a certain sense to increase it, at least in many cases, insofar as it denotes the perverse will deliberately to ignore what ought to serve to make one act rightly or to change the incorrect and immoral conduct maintained by the person; b) crass or supine i., although less grave than affected i., is nevertheless very serious, insofar as it indicates the absence of any good will in knowing the law, and, being almost equivalent to absolute disregard, leaves the responsibility for one’s actions complete; c) even gravely culpable i., without other aggravating circumstances, creates grave responsibility in the subject; d) as has already been mentioned, slightly culpable i., whatever effect it produces (even if objectively morally grave), constitutes a venial sin, although the law takes no account of it whatsoever. Invincible i. (antecedent)

on the other hand excuses from all responsibility, since a person who acts in that state lacks, through no fault of his own, knowledge of the possible immorality of the action: and it is a principle of natural law that no one can will what he does not know.

Therefore, with regard to moral theology, the following principles may be briefly formulated: antecedent i., being invincible and therefore free from any guilt, completely excuses from all responsibility for the effects produced by it; concomitant i., since it has no influence on the action, can neither excuse nor accuse, insofar as in relation to the action it is simply ineffective; consequent i. always accuses, because it is the fruit of guilt in the person: affected i. in particular, but also crass or supine i. and any other i. that is gravely or slightly culpable. Finally, it should be borne in mind that any i., with the partial exception of affected i., diminishes responsibility for the human act, insofar as one who violates a law of which he is ignorant, despite grave or very grave guilt in this i., violates it only indirectly: and it is a moral principle that direct voluntariness is more grave than indirect voluntariness.

VI. QUESTIONI VARIE

Si deve accennare pure, brevemente, alla relazione tra l'i. e alcuni stati della persona o degli atti umani: a) per un uomo normale che abbia raggiunto l'uso completo della ragione, non pare possibile l'i. invincibile (ossia non colpevole né in sé, né in causa) dell'esistenza di Dio nel senso che egli lo possa semplicemente ignorare; b) quanto alle norme morali che regolano gli atti umani, è comunemente ammesso che non è possibile ignorare i primi principi fondamentali morali (il male si deve evitare; il bene si deve fare; bisogna amare Dio; non bisogna fare ad altri ciò che non si vuole ci si faccia; ecc.); alle volte, molto raramente però, è possibile l'i. delle conseguenze immediate di detti primi principi; più facilmente se ne possono ignorare le ultime conseguenze (ad es., se in questo o quel caso vi sia l'obbligo di restituire; se vi sia l'obbligo di amare i nemici); c) per i Sacramenti, operando essi per intrinseca virtù e forza (ex opere operato, dicono i teologi), non v'è dubbio che essi vengano validamente confezionati anche da chi ignora che cosa siano i Sacramenti, purché si abbia l'intenzione di fare quanto intende fare la Chiesa (ad es., il Battesimo può essere validamente dato da un infedele che non conosce affatto la religione cristiana; il Matrimonio tra due cristiani è Sacramento anche se essi ignorano che sia un Sacramento); d) chi ignora che in un dato giorno v'è l'obbligo di ascoltare la Messa perché festivo, soddisfa egualmente al precetto se di fatto l'ascolta.

Una particolare attenzione merita l'i. circa l'oggetto del contratto matrimoniale, come vizio di consenso; su cui V. ERRORE.

723-38; id., Le problème de l'ignorantia iuris de Gratien à St Thomas d'Aquin, in Rech. de théol. ancienne et médiév., 5 (1933), pp. 345-68; C. Esposito, La conoscenza della legge nel diritto e nella morale, in Rivista intern. di filosofia del diritto, 15 (1935), pp. 407-19; O. Lottin, Principes de morale, II, Lovanio 1947, pp. 185-90. Lorenzo Simeone