Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Tuesday, June 14, 2011

Ignorance of the Wrong-Development of an Idea, Part 1

IT IS COMMON TO SPEAK OF A DISTINCTION between ignorance of the law and ignorance of fact, ignorantia iuris and ignorantia facti. But it was not always common to make this distinction between law and fact, and the concept arose rather late and then went through a process of development. Rev. Stanley Bertke has a quick excursus on the development of this idea in pages 52 through 58 of his excellent little work, The Possibility of Ignorance of the Natural Law, and it merits being summarized here.

At the outset, the canonist Gratian (mid-12th century)* mentions the distinction between ignorance of fact and ignorance of law:

Est enim ignorantia alia facti, alia iuris. Facti alia quod non portuit eum scire quod oportuit cum scire . . . Quod oportuit eum scire . . . haec neminem excusat. Item ignorantia iuris alia naturalis, alia civilis. Naturalis omnimbus adulties damanbilis est; ius vero civile aliis permittitur ignorare, aliis non.

For there is one ignorance of fact, and another of law. The [ignorance] of fact may be that of which there was no need to know and that which was necessary to know. That which is is necessary to know. . . . [Ignorance] of that which is necessary to know excuses no one. There is also ignorance of the natural law and [ignorance] of the civil law. [Ignorance] of the natural law in adult is damnable; of the civil law, some are permitted to be ignorant, others not.

C.XII, C.1, q. 4. Gratian's distinction appears to be a common starting point for the scholastic theologians who reviewed and later systematized the matter over a period of time.

Simon of Tournai (1130-1201) focuses on Gratian's distinction, and, following the canonists, he advanced the view that ignorance of fact excused from sin. Thus, if someone unknowingly hurled a stone and it struck another and killed him, the lack of knowledge excuses from the thrower of the rock from sin. Simon of Tournai also distinguished between ignorance of the natural law and ignorance of positive law. A knowing violation of the positive law is, in addition to a legal infraction, also sinful. However, ignorance of the positive law excuses one from sin (though not necessarily from the legal infraction). Thus someone who travels through a foreign jurisdiction ignorant that a certain act is unlawful, is excused from sin even if he breaches the positive law. However, ignorance of the natural law never excuses from sin in Simon of Tournai's view. This is because natural law is so innate to human reason, and so readily known that noluit enim scire quod naturaliter posset, it is impossible for one not to know that which he naturally possesses.** "Simon of Tournai would therefore hold that ignorance of the natural law never excuses from sin for the very ignorance is a sin in itself." Bertke, 52. Simon of Tournai's view suffers from an excessive inatism as it relates to the natural moral law.

William of Auxerre (c. 1150-1231) was perhaps the first Scholastic theologian to handle in a systematic way the natural law (in his Summa Aurea). In his treatment of ignorance, William of Auxere elaborated a three-fold distinction in ignorance
[William of Auxerre] distinguished a triplex ignorance: ignorantia simplicis negationis, which is the absence of knowledge when there is no obligation to know; ignorantia privationis, which is the absence of knowledge one is obliged to possess; and ignorantia dispositionis qua quis aliter opinatur de re quam sit, which implies not only the absence of knowledge but a positive error to the contrary. Though the latter may excuse from win when it cannot be overcome, the former is always culpable.
Bertke, 53. For William of Auxerre ignorance of the natural law was always sinful--ignorantia iuris neminem excusat, and that without any exception. Although the speculative knowledge of the law might not be sinful without an act, the moment that speculative error was put into play in an erroneous practical judgment which, by definition, was against the virtue of prudence, that act (as long as it was free) was sinful. Bertke, 53. William of Auxerre thus advanced a rigoristic notion of ignorance of the natural law. It simply did not exist.

The Meeting of St. Dominic and St. Francis by Benozzo Gozzoli c. 1452

The first softening of this position was seen among the Dominicans. So Roland of Cremona (1178-1259), Hugh of Saint Cher (ca. 1200-1263), Richard Fishacre (or Fitzacre) (ca. 1200-1248), and John of Treves, while they follow William of Auxerre generally, they seem to reject the absolute principle that ignorance of the law never excuses one from fault. They do so, not by expressly rejecting that teaching, but by more or less suppressing the absolute formula of William of Auxerre. On the other hand, the Franciscan school, at least as it may be found in John of La Rochelle (also known as Jean de La Rochelle, or Johannes de Rupella, died 1245), appears to have maintained the original rigor of William of Auxerre. For John of La Rochelle, "[t]he natural law is written on the hearts of men; therefore, ignorantia iuris naturalis nullum adultum excusat, sicut dicit Decretum." Bertke, 54 (citing to Summa de Vitiis, 228, f. 11).

Similarly, Alexander of Hales (1185-1245) follows the rigoristic line. In answering questions on the issue of the levels of ignorance and the concomitant level of excuse, Alexander of Hales "holds that the more one is held to know the law, the less ignorance and excuse for transgressions." Bertke, 54. It follows from this that since all have the obligation to know the natural law, no one who is ignorant of the natural law can be said to be excused of it. Ignorance of the natural law is, in all cases, imputable to the actor and sinful, at least insofar as one has the use of reason and is not mad or lacking reason. "Ignorantia enim iuris naturalis neminem excusat qui usum potest habere sciendi, sicut dicitur, 'ignorantia iuris naturalis omnibus adultis damnabilis est,' adultis dico, qui habent usum rationis, propter furiosos et huiusmodi." Bertke, 54.

And so the issue seemed to be: the early Dominicans seemed sub silentio to soften William of Auxerre's rigorism, while the Franciscans "resolutely adopt it." Bertke, 54. Unlike St. Dominic and St. Francis, who so touchingly met and embraced as shown in Gozzoli's artwork, on the matter of ignorance of the natural law, there was no such embracing among the theologians.

In the next blog posting, we will see what effect the Aristotelian revolution had on development of this issue. We shall review the work of the great Dominicans, St. Albert the Great and St. Thomas, and the great Franciscan, St. Bonaventure.
*Lex Christianorum has handled Gratian's contribution to the natural law and his Decretum before. See Gratian and the Natural Law: Concordance and Discordance in the Natural Law, Part 1 and Gratian and the Natural Law: Concordance and Discordance in the Natural Law, Part 2.
**Bertke, 52 (quoting Paris Nat. Lat. 14886, f. 29, cited by Lottin, D.O., "Le Probleme de Ignorantia Iuris," Recherches de Théologie Ancienne et Medievale, Vol.5, 1933, p. 352.

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