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1994 Wis. L. Rev. 29 (1994)
Wilful Ignorance, Knowledge, and the Equal Culpability Thesis: A Study of the Deeper Significance of the Principle of Legality

handle is hein.journals/wlr1994 and id is 45 raw text is: ARTICLES WILFUL IGNORANCE, KNOWLEDGE, AND THE EQUAL CULPABILITY THESIS: A STUDY OF THE DEEPER SIGNIFICANCE OF THE PRINCIPLE OF LEGALITY DOUGLAS N. HUSAK & CRAIG A. CALLENDER This Article challenges the traditional understanding of the principle of legality-nulla poena sine lege. Conventional wisdom concerning the principle fails to express the full range of values at stake in preserving the rule of law. In order to appreciate the deeper significance of these values, this Article considers an application of the principle of legality to a dispute about mens rma rather than to a controversy about actus reus. This discussion helps to reveal some of the larger issues that are involved in protecting the principle of legality. In addition, a focus on mens rea indicates the limitations of statutory solutions to some of the problems raised by the principle. Finally, thisperspective demonstrates how the rule of law serves to protect law-abiding persons, and not only scoundrels. The most general conclusion drawn is that fidelity to law cannot be construed merely as fidelity to statutory law, but must be understood as fidelity to the principles of justice that underlie statutory law. The deeper significance of the principle of legality is revealed in the context of a discussion of the problem of wilful ignorance. The discussion begins by clearly characterizing the culpable mental state associated with wilful ignorance. The unsatisfactory treatment of wilful ignorance by both courts and commentators is then reviewed. This Article shows that some (but not all) wilfully ignorant defendants are held liable despite their failure to satisfy the mens rea requirement of the statutes under which they are convicted. After considering whether the culpability of such defendants is equal to that of defendants who actually satisfy the mens rea of these statutes, this Article argues that the problem of wilful ignorance should not be assessed apart from the larger political significance of drug policy. Finally, this Article discusses the limitations of proposed statutory solutions to the problem of wilful ignorance, and defends a preferable alternative. * Professor of Philosophy, Rutgers University. Ph.D. (Philosophy), Ohio State University (1976); J.D., Ohio State University, (1976); B.A., Denison University (1970). ** Ph.D. (Philosophy), Rutgers University (expected 1995); B.A., Providence (1990).

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