In Ignorance of Law Is an Excuse -- but Only for the Virtuous,(1) Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages.
In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan never acknowledges that the "legal moralism" he endorses has long governed when mistakes of fact which bear at least a family resemblance to mistakes of law -- can excuse us from responsibility for what we have done. Second, the real power and demands of Kahan's essay are only hinted at. While the implication of his thesis -- "that law is suffused with morality and . . . the making of moral judgments(2) -- is profound, Kahan stakes out no moral positions. This strikes me as a gap in a theory that allows ignorance of law as an excuse only for those agents whose "underlying conduct violates no moral norms independent of the law that prohibits it."(3) Kahan certainly is free to consign to courts the task of establishing criteria for evaluating whether, for example, possessing firearms,(4) failing to pay taxes,(5) illegally transporting wildlife,(6) and failing to report campaign contributions(7) are matters of morality as well as of law. Still (and this may be more personal than dialectical), I felt deprived by his refusal to answer what, at least to my mind, had provided the occasion for his essay: Is it moral to obey the law? Immoral to break it?
KAHAN'S POSITION AND ITS CONTRIBUTION
Kahan's intention is to get to the bottom of both why "ignorance of the law is no excuse," and why sometimes it is. The conventional position, which Kahan dubs "Holmesian," cannot adequately explain either. The Holmesian position is based on a sense of "liberal positivism," which presupposes -- mistakenly in Kahan's view -- a disconnection between law and morality. In other words, the Holmesian position holds, "even the bad man can be a good citizen so long as he lives up to society's rules."(8) One need not be moral -- one can "lack the values that would have motivated a good person to perceive the real value of things"(9) -- in order to live a legally trouble-free life.(10) Because the Holmesian position "disclaims any reliance on the moral knowledge of citizens, as well as any ambition to make them value morality for its own sake,"(11) it celebrates the "utility of legal knowledge."(12) Since it is merely law-abiding (not necessarily good, or right, or true, or just) conduct that the law intends to inspire, the Holmesian position "shows no mercy for those who claim to be ignorant of what the criminal law proscribes."(13) This, in turn, "maximizes citizens' incentive to learn the rules that `the law-maker has determined to make men know and obey.'"(14)
Kahan does a superb job of demonstrating that the Holmesian position does a lousy job of backing up its belief in the virtues of legal research. "[I]f the goal is only to protect society from the legally stupid," Kahan argues, then the Holmesian position is inverted.(15) In a strict liability regime -- one in which the but-I-thought-it-was-legal defense is always denied -- there is no payoff for legal research: break the law and go to jail, even after diligent ex ante efforts to verify the lawfulness of an action. But in a negligence regime, Kahan concludes -- one in which reasonable steps to ascertain the law are rewarded -- more legal research will occur because mistaken researchers can get off scot-free.(16)
So too, if fear of the "strategically heedless" explains why Holmesians repudiate ignorance-as-excuse, Kahan makes clear that the intentional head-burier is at most "a bit player in the mistake of law drama."(17) Kahan emphasizes this point through a close reading of People v. Marrero,(18) in which a federal prison guard was prohibited from pleading his quite reasonable but mistaken belief that he was a "peace officer" exempt from New York's concealed-weapons law. While New York's highest court insisted that excusing Marrero would encourage mistakes of law and depreciate the utility of knowledge, Kahan insists that Marrero was far from heedless. Rather than "deliberately shield himself from legal knowledge," Marrero "had tenaciously attempted to ferret it out."(19) As for other would-be head-buriers, Kahan continues, they hardly would have been helped had Marrero's request for a reasonable-mistake defense been accepted.(20) Ultimately, therefore, Kahan is convinced (and now so am I) that Marrero botches its stated intention of endorsing the utility of knowledge, not by denying a defense to the strategically heedless, but by denying a defense to "the impudently inquisitive" who pay "exacting attention to the law's fine points."(21)
Kahan then deftly rehabilitates Marrero. Legal research performed by someone who is contemplating action of questionable legality is far from an unalloyed good, Kahan tells us. Whether we are talking about Marrero or a possessor of "designer" drugs, to condition the excuse on reasonable efforts to learn the law is to institutionalize "loopholing."(22) For example, drug manufacturers can avoid a jurisdiction's controlled-substances list simply by "alter[ing] the composition of... a substance slightly without changing its pharmacological effects."(23)
One way to fix the inevitable incompleteness of statutory definitions of crime is to draft laws at a level...