Abstract
In Ignorance of Law, Douglas Husak’s main thesis is that ignorance of the law typically provides an excuse for breaking the law, but in the case of recklessness he claims that the excuse it provides is only a partial one, and in the case of willful ignorance he claims that it provides no excuse at all. In this paper I argue that, given the general principle to which Husak appeals in order to support his main thesis, he should revise his position on the exculpatory significance of both recklessness and willful ignorance.
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Notes
This and all other such unattributed page references refer to Husak (2016).
A word on terminology. Husak does not use the term “partial excuse” and has told me that he is suspicious of it. What he says is this (p. 1): “Persons who breach criminal laws of which they are unaware deserve some degree of exculpation in nearly every case. Defendants are fully responsible only when their wrongful actions are akratic.” Cases such as those of Juan* and Carlos*, which I am about to discuss, are among those cases in which Husak claims that the agent in question deserves some degree of exculpation even though he is not (wholly) blameless. It is in such cases that I will say that, according to Husak, the agent has a partial excuse.
“Some degree of exculpation” contrasts not only with “total exculpation” (i.e., blamelessness) but also with “no exculpation.” The latter is what Husak intends when he writes of “full” responsibility. It is perhaps worth noting that this idea of full responsibility is not straightforward, if (as I suspect) there is in principle no upper limit to how blameworthy someone can be. What Husak has in mind is this (p. 11): a defendant is fully responsible for her conduct when she is “eligible for the maximum sentence authorized by law for her offense,” provided that “the sentences the law actually imposes …approximate justice.” (A slight complication arises in cases of “formal mitigation” in which some mitigating factor renders the defendant ineligible for the maximum sentence for the offense with which he was originally charged but eligible for the maximum sentence for a lesser offense. [See Hart 1968, p. 15.] In such cases, the defendant would seem, intuitively, to have a partial excuse for his behavior, and yet, formally, he is being held to be not responsible at all for the original offense while being fully responsible for the lesser offense.).
532 F.2d 697 (9th Cir. 1976).
For an insightful discussion of some of the difficulties in distinguishing between moral and non-moral propositions, see Prior (1960).
Another possibility is this: Carlos* flat-out believed that there was a probability of 10 percent that it was morally wrong to kill innocent people. I won’t pursue this possibility, which complicates matters even further.
Does the second stipulation follow from the first? I suspect not, but I won’t pursue this issue, either.
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Acknowledgements
Thanks to Doug Husak for checking an earlier draft for possible misrepresentations of his view and, more broadly, for writing such a stimulating book.
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Zimmerman, M.J. Recklessness, Willful Ignorance, and Exculpation. Criminal Law, Philosophy 12, 327–339 (2018). https://doi.org/10.1007/s11572-017-9424-y
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DOI: https://doi.org/10.1007/s11572-017-9424-y