A few months ago, a boy was labelled a racist for enquiring if a school mate was brown because he came from Africa. This boy was 7.
Although in agreement that racism is a form of abuse that has to be heavily minimised and stamped upon, is it really legitimate to categorize this young boy’s curiosity racism?
Perhaps it is too pedantic to look to legal maxims as an illustrative point in this matter taking into consideration that the boy was only 7 and no charges were brought but it got me thinking. If we are to assume for the time being that the boy was 17; looking strictly at the maxim: ignorance is not an excuse; this comment would be deemed an offense and possible charges could be brought. There does not seem to be any indication of a malicious intent. A boy at 17 would be held to possess a more in depth knowledge of what is racist or not, but this is purely assumption. An understanding of such concepts as racism or disability will mostly come from experiences. A child unexposed to such matters will be more likely to say something offensive and perhaps even, unintentionally. Is it fair for a child or in fact anyone that is ignorant to breaking the law to be guilty if they do not know what they are doing is wrong?
I realise that this maxim serves a fundamental function within the legal system. It encourages knowledge in the law; an understanding of it and therefore a stricter application leading to more equitable decisions and therefore transparency of the law. All very important. I don’t dispute that. But there is food for thought in whether applying this maxim religiously is in fact serving the best interests of the public. It is a tall feat to ask of lawyers never mind of the general public to remain up to date in an ever changing and evolving society with laws being proposed and passed most days. It is the job of the lawyer to remain up to date, but is it the job of the average person? Is it the job of the lawyer to educate them? It seems that the Government may be navigating cleverly around the colossal task of providing a system whereby before anyone may be subjected to a law; they must be made aware and understand such a law failing which would result in new laws probably never being passed. So it is understandable, but is it right?
It is worth considering that with this maxim cemented within our legal system, we are bound by any laws that Parliament seek to pass; anything at all despite not knowing of it or understanding it. I find that thoroughly disconcerting. I guess we should all have studied Law.
I can’t help but think, though more difficult, looking to intent in circumstances such as this would serve a better picture of justice than wholly relying on “ignorance”. Quoting from the infamous case of Cadder, Lord Hope said “... there is no room... for a decision that favours the status quo simply on grounds of expediency.” Although this is in reference to another matter altogether, the same thought process should be applied to that of this maxim. Simply because it has been rooted in our legal system for years and that the alternative would require a more rigorous analysis of the matter is not excuse enough for the blind adherence to customary practice.