Kahan on Mistakes

In Ignorance of Law Is an Excuse – but Only for the Virtuous, 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” – 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.” Kahan certainly is free to consign to courts the task of establishing criteria for evaluating whether, for example, possessing firearms, failing to pay taxes, illegally transporting wildlife, and failing to report campaign contributions 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?