علم به قانون، تفاوت بین جهل به قانون و عدم علم به آن
Knowledge of law is recognized as a principal element including “mens rea” that constitutes part of a crime. Thus, lawyers and legal academics are struggling to line a precise border between the ignorance and mistake about the law. Consequently, they are in deep conflict to accept this tenet as a legal defense excusing any crime commitment. A critical point discussed controversially in academic communities is about to what extent defense based on the ignorance and mistake about the law is accepted generally for people who are living in the cities or villages.
Necessities and Criminal Policies
Historically, lawmakers make a sustained effort to dispute any settlement between crime and social necessities by declining any excuses based on the lack of knowledge. This concept is taken as a given in criminal law for the whole of law history. Many reasons have been cited in the literature of law. Article (155) Iranian Islamic Criminal Code like many penal codes has refused any accuses based on the ignorance of knowledge.
All proponents claim that the ignorance of the law principally is likely to involve societies in juris dynamic. Obviously, it causes widespread damages on a society as a whole, if the majority of people have been motivated to get rid of their shoulder responsibilities. Consequently, citizens will get involved in more and serious crimes committed by criminals have a group of reasons for their anti-social behavior. Researches have been done by bar associations in the Middle East in 2020 point out that juvenile delinquencies have increased when the schools have not justified teenagers about the ignorance of law and its consequences. In addition, it is not legally possible to assess the honesty of the accused about his mistake, ignorance or unawareness. The border between objective and subjective criteria is controversially thin. Last but not least, the proponents have abdicated any excuse attacking “mens rea”. It is not just a claim that we are faced to a considerable consensus among lawyers and policy makers, whereas this mindset seems arid by new expanding revolution observed in the four corners of the globe.
To guarantee the achievement such of a principal goal in criminal field, lawyers have defended vastly = this fundamental rule in the context of mens rea. Therefore, to make sure about the right of citizens objectively, they believe that it is a must to publish all kinds of laws and regulations officially in media. No difference is recognized among dukes, earls and other members of aristocracy. Hence, this approach also is a vastly accepted reason to apply for both the poor and all people who claim that they do not have any reasonable access to the knowledge. For example, those who are living in a village without the internet access cannot be eligible to use this defense. Also, the elderly who have not enjoyed any schools in their lives may claim the lack of knowledge about law. Primary notion does not authorize others to make any exception. Even if the primary defense approving “not-guilty” has been accepted exceptionally and applying the lack of knowledge excuse, individual and social necessities do not allow decision makers to ignore this rule. In comparative law, the majority of legal systems in both western and third world societies vastly accepted such an attitude. Iranian Civil Law has recognized this rule in article 2, for example. Consequently, it is constitutionally presumed that all people know all published laws and they are aware about their duties and rights.
Fair Trials and Human Rights
Inadequate access to public legal knowledge has been raised as a persistent global problem denying the right of persons to know the laws regulating the person’s conducts and activities. It violates the rule of law and several human rights, including the right of access to justice, and criticizes the application of the ignorantia juris non excusat doctrine. It refers to the situation where the law is inaccessible and unknowable. The problem exists in both developed and developing countries and it has all the existing ancient and modern efforts to solve it.
The vast acceptance of this rule cannot forbid lawyers to take a different look at the lack of knowledge. It depends on different situations or persons. For example, some people like the insane or children who are under legal age, are conspicuous exceptions. It is legal and logic. In addition, different objective criteria are mentioned controversially. One of them is related to persons who claim their lack of knowledge about the law. The trend of development of the international human rights puts the fair trial in the center of global attention. As a result, civil societies and NGOs protecting people who are on the verge of the ignorance of the fair procedures instructions have serious concerns about the expanded view breaching the rights of accused persons. The use of the Internet has increased globally and no one can put that he or she does have no access to it. But it is not necessarily to decline absolutely the right of the accused about his or her ignorance.
This challenge attracts international attention and nominates it in the context of human rights and fair trial standards. UN and other annual sessions of member states of international instruments of human rights takes a look at the people’s rights on free access to information including laws and regulations. In addition, CCPCJ and UNODC play a vital role to make a stable stage in criminal trials. Therefore, limited mechanisms have specifically presented a serious need of governments worldwide to provide adequate access to their public legal information, protect the people’s right to know the law, and remedy the said injustice in applying the ignorantia juris non excusat doctrine wrongly. This is a subject rising with a constant growth.
It seems logically no authorization approved by constitutional rights in order to prohibit people absolutely from any defense basing on the lack of knowledge. The increasing trend of human rights and fair trial standards motivate lawmakers to consider more rights preserving the right of the accused and facilitating the achievement of justice.