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 IGNORANTIA IURIS
by
P. VAN WARMELO (Pretoria).
(1) The rule of Roman law that ignorance of law does not
serve as an excuse for the person who makes such a mistake
is known in every legal system. The meaning of this rule is
perfectly clear. Whosoever makes a mistake and acts con-
trary to the precepts of law cannot, except in certain well
defined cases, make use of his bona fide ignorance as an
excuse. This rule of ignorantia iuris differs from the rule
as regards ignorantiafacti. We find in Roman law that error
is a recognised excuse in many cases. The difference between
the general rule of ignorantiaiuris and ignorantiafacti is,
therefore, striking. Accordingly it is our desire to examine
this difference and attempt to explain it as far as Roman
law is concerned.
It may be added, in the first place, that the right to use
ignorance of fact as an excuse is of comparatively recent
development in Roman law. In the ancient ius civile an error
of fact was of no importance since the formalities as such were
.stressed. The party who observed the formalities required by
civil law was bound by them, no matter what error of fact
was committed by him. At a later stage, however, the error
of fact was admitted to serve as an excuse (but to what
extent, we need hardly go into here). On the other hand,
error as to law was not admitted to serve as an excuse
although there were some exceptional cases wherein this rule
was changed as will be seen later.
To summarise briefly what we trust will appear from the
following pages:
(a) The rule ignorantiaiuris non excusatur is an ancient
rule but in substance more a philosophical concept than a
legal rule (§§ 2, 3).
(b) The rule ignorantia iuris non excusatur was recog-
nised in classical law. However, the formulation thereof as
we find it in the texts dates from post-classical times.
Furthermore, this rule is employed in postclassical times
1
 P. VAN WARMELO

as a motive for certain decisions in classical texts where this

rule is not ad rem. E.g. in regard to usucapio this rule is
introduced as a reason for decisions where actually iusta
causa is the point in question. Obviously, in such a case, the
lack of iusta causa may be due to error - but then this may
be an error iuris or errorfacti.
(c) In classical law a number of cases arose where error
was excused; that is, in certain cases where it would appear
just and equitable it was permissible to avail oneself of such
an error (iustus errorin the sense of a serious and reasonable
mistake). However, such an error may also consist in certain
cases in an erroriuris (§ 3 (a-c)).
(d) In a number of cases ignorance of law was recognised
as an excuse no matter whether it was reasonable or not.
These exceptions to the general rule increased as time went
by (§ 3 (d)).
(2) In the sources of Roman law the expression ignorantia
iuris as well as error iuris is to be found. As a rule these sour-
ces go back to a late classical period and therefore do not
give definite information as regards the rule in the primitive
law whence it comes. However, the expressons ignorantiaand
error have a certain semantic value which gives an inkling
of what the rule originally meant and why it had this
meaning. It will appear that these two expressions have
varied meanings; nevertheless, as far as the employ thereof
in regard to the law is concerned, it is clear that they had a
specific meaning which is somewhat different from the
modern meanings derived from them.
It is clear that the words errare and error are frequently
employed to express disregard for something. It is not merely
being ignorant but it is to ignore something in a fashion
which is blameworthy. Thus the words indicate a blame-
worthy state of mind in that sufficient regard has not been
given for something which should have been known. The error
can, therefore, not be excused. The errans does not know what
it is required of him to know or he does not bother to know
what everyone knows. 1)

1) See also Ehrhardt Z.S.St. 69 (1952) p. 412 sqq.

 IGNORANTIA IURIS

This may be illustrated by a few examples: Scio te sponte

non tuapte errasse, sed amorem tibi pectus opscurasse2);
Qui vel errarunt vel male fecerunt 3); Pariter te errantem
atque illum sceleratissimum persequi 4); coercitionem erran-
tium sceleratorumque 5); insectatur vitia, non homines, nec
castigaterrantes, sed emendat 6) ; Thus we find that the words
have the meaning of a delict or wrongful act 7). This meaning
is given to these words in more modern times; especially the
Christian writers attribute to these words the meaning of
crime or sin: dogmata falsa vel superstitionemethnicam sequi
- although it would appear that this meaning for these words
is derived from the parable of the lost sheep 8). Accordingly
we may state that the words error and errarehave a meaning,
especially in ancient times, of not knowing what it is neces-
sary to know and therefore the errans is to blame for not
knowing what everyone knows.
We may add a few other examples taken from the The-
saurus linguae latinae. Firstly we find Cicero 9) saying: locu-
ples metu, tenues praemio, stultos errorepermovit. Here error
does not signify that which is unknown but rather to employ
a means or argument which one knows is false. Errormeans
disregarding what one knows. We find the same in: plura...
homines iudicant odio aut amore. .. aut timore aut errore
aut aliqua permotione mentis 10). Error is not mere igno-
rance worthy of blame. We have to do with an ignorance of
what is just and therefore the moral element is introduced.

2) Plaut. Most. 188.

3) Vopisc. Aurelian. 41. 2.
4) Sall. Iug. 102. 5.
5) Sen. Dial. 3. 16. 1.
6) Plin. Epist. 1. 10. 7.
7) Cf. Lexicon totius latinitatis (Forcellini 1940) s. v. error: pro
dolo, fraude, adeoque pro quacumque re, quae decipit, vel erroris causa
est. Morali significatione ponitur interdum pro delicto, peccato. For
many examples cf. Thesaurus linguae latinae s.v. erro, error. We may
mention further: plurima felix paulatim vitia atque errones exuit
omnes, prima docet rectum sapientia. (Iuv. Sat. xiii, 187-189).
8) Cf. Thesaurus ling. lat. s.v. erro; also s.v. error.
9) Cic. Flacc. 15.
10) Cic. De Orat. 2. 178.
 P. VAN WARMELO

It is exactly the same with regard to the words ignorare,

ignorantia and ignoratio. The meaning of disregarding that
which is known as well as disregarding the rules of good
morals is abundantly clear. For instance: errorem .... et
temeritatem et ignorantiamet opinionationem et suspicionem
et uno %omine omnia quae essent alienae firmae et constantis
assentionis a virtute sapientiaque removebat (Zeno) 11);
Quod erat odium, dii immortales, quae superbia, quanta igno-
rantia (ignoratio) sui 12). This meaning is also to be found
when the terms are used in conjunction with the law: illi
iniqui ius ignorantneque tenent 13) ; (rhetores novi) ignorent
leges, non teneant senatus consulta 14). However, it is only
fair to add that in the most cases where these terms are used
with regard to the law they are employed as meaning igno-
rance or error and nothing more.
Especially in the Corpus luris error and ignorantia mean
ignorance or error without the added signification of dis-
regarding what is known or at least morally required to be
known 15). On the other hand, where we hear of ignorantia
iuris in the Corpus luris, the texts are of a comparatively late
period as has been remarked before.
We may add that the Greek terms, having the same
meaning, e.g. 6yvoia and dyvoico, have the same semantic
value. They are used in this sense with regard to philoso-
phical and moral questions. Especially this is the case in more
recent times amongst the Christian writers. Thus we find
as a definition of the word dy'tota: habitus quidam pravus
et e falsitate: quod si quis yvotav appellat scientiae priva-
tionem, errat 16). *Ayvota has practically the same meaning as
11) Cic. Acad. 2. 42 Cf. Lexicon (Forcellini) s.v. error.
12) Cic. Pro Cluent. 27.
13) Plaut. Amph. 37.
14) Tac. Dial. 32.
'15) To mention a few examples: D. 41. 10.5; D. 44. 7. 57; Inst. Gai
1. 67; D. 21. 1. 23. 2; D. 21. 3. 51 pr.; D. 4. 1. 2; D. 46. 3. 102. 3.
16) Cf. Thesaurus Graecae linquae (H. Stephanus c.s.) s.v. jyvota;
Bauer, Griechisch-Deutsches Worterbuch zu den Schriften des neuen
Testaments und der iibrigen urchristlichen Literatur (4e Aufl. 1949)
s.v. rota - in religi~iser Hinsicht, fast = Sinde.
[5] IGNORANTIA IURIS 5
'A/apua. The Christian writers use the terms in this sense
very frequently but this meaning goes back to ancient times.
For instance in the Septuagint the same Hebrew word is
translated by lyvoma by dbitxqa by daflaa and by i/taerua 17).
This goes to show that the word dyvota is employed in the
Septuagint in the sense of acting contrary to the rule of
morals or religion. Thus it indicates a crime or sin which is
inexcusable. Thus ignorance is not sufficient, because it is
essential that each one knows the moral or religious rule -
for we have to do with rules known to everybody or, at least,
which everybody could know. Not to know the rule is to be
guilty of a wrongdoing. It is wrong because everybody knows
or should know that it is wrong. Therefore, ignorance cannot
be used as an excuse because there is blame attached to not
knowing such moral or religious rules. This philosophical
viewpoint, which develops from the meaning of these terms,
is to be found in the Roman thought as well and can be recog-
nised in the employ of the words ignorantiaand error.
(3) There is no doubt that the expressions error, igno-
rantia,errare, ignorare,ignoratio are employed in this sense
with regard to morals and religion. The question is whether
these words have the same semantic value when they are
employed in conjunction with law, and more especially,
whether they have this value when employed for purposes of
the rule which we are discussing. We may mention that there
is no doubt that our rule goes back to ancient times. is)
Nevertheless, it is equally true that the usual formula for
this rule in the texts dates from comparatively recent times.
But to return to the more ancient law of Rome, it is clear that
the law was very closely linked with morality and religion.
As it is usually said in text-books, ius and fas were hardly
distinguished. Thus to transgress the law is the same as
acting contrary to the gods and morals. Consequently punish-
ment was inescapable and ignorance was not a sufficient
excuse. Law is considered as the justice of the gods and
17) Cf. Ps. 24. 7; Gen. 31. 36; Ex. 22. 8; Ps. 5. 11.
18) JMirs-Kunkel-Wenger, Rbmisches Recht (1949) § 62, n. 14.
 P. VAN WARMELO

everyone knows that justice because it is to be found in the

conscience of each one. Ignorance of these precepts is simply
not imaginable. This thought is to be found in primitive
thought among other peoples too. In the Bible we find:
Justitiajusti non liberabit eum in quacumque die peccaverit:
et impietas impii non nocebit ei, in quacumque die conversus
fuerit ab impietate sua: et justus non poterit vivere in justitia
sua, in quacumque die peccaverit 19).
Even in more recent times the Romans regarded the law
as the same as justice. Even in the Corpus Iuris one finds
that ius est ars boni et aequi. But it is chiefly Cicero in his
essays on duty and on law who expresses the Roman view,
obviously based on Stoic philosophy, on law as an element of
the social life of man. It is clear that the point of view was
that law, serving the interests of the community, was inextri-
cably linked up with justice. Thus, that law has a moral and
religious value; that the rules of law, derived from a moral
or religious source, is enfolded within the conscience of each
person. Thus whosoever acts contrary to the precepts of law,
acts contra naturam and thus we have a crime which must
necessarily be punished. Furthermore, it is plainly impossible
to be ignorant when acting contra naturam, for it is obvious
that to act contra naturam means that one knows that
you are doing wrong. Therefore, ignorantia iuris, in the
sense of ignorance of the law, is wholly impossible, and,there-
fore, ignorantia iuris will have the meaning of disregarding
the law, the precepts whereof are to be found within each
person. Thus error or ignorantia with regard to law, will
have the same meaning as has been found when these terms
are employed in conjunction with moral or religious matters.
Of course, strictly speaking, this rule was originally not so
much a rule of law as a philosophical precept. It merely forms
part of the general idea that the rule of morals or religion -
in a word, the rule of an ethical value - is always sanctioned
and can never be transgressed with impunity.

19) Ezech. 33. 12. The reading peccaverit, (aav76f) in the Vulgate.
There is also the reading erravit (Itala).
 IGNORANTIA IURIS

But let us see how Cicero thinks about the matter. There
is no doubt that his views represent, in broad outlines, the
current legal views of Rome. It is clear, in the first place,
that when he views the law, he makes no distinction between
the ideal of law and the actual law of Rome. He attempts
to presume that the Roman law has all the qualities which he
attributes to an ideal of law. Thus one might say that he has
in mind a ius naturale but that the roman law forms a part
thereof: Marc..... sed nobis ita complectanda in hac dispu-
tatione tota causa universi iuris est ac legum, ut hoc, civile
quod dicimus, in parvum quemdam, et angustum locum con-
cludatur naturae. Natura enim iuris explicanda est nobis,
eaque ab hominis repetenda natura; considerandae leges,
quibus civitates regi debeant; turn haec tractanda,quae com-
posita sunt et descripta, iura et iussa populorum, in quibus
ne nostri quidem populi latebunt, quae vocantur, iura civilia.
Quint. Alte vero, et, ut oportet, a capite, frater, repetis quod
quaerimus; et qui aliter ius civile tradunt, non tam iustitiae,
quam litigandi tradunt vias 20).
For Cicero, /us and iustitia are one and the same even as
it is for whosoever defined the law as ars boni et aequi. There-
fore, he sees that law and justice contain the two fundamen-
tal rules of alterum non laedere and ius suum cuique tri-
buere 2i). Justice is the base on which all law is founded.
Thus it is also easy to understand that for Cicero ius and
fas are not wholly distinct the one from the other. Obviously,
ius and fas are not exactly the same as it perhaps was in
earlier times, but they are closely connected: lam tanta religio
est sepulcrorum, ut extra sacra et gentem inferri fas negent
esse: idque apud maiores nostros A. Torquatus in gente
Popilia iudicavit. Nec vero tam denicales, quae a nece appel-
latae sunt, quia residentur mortuis, quam ceterorum coeles-
tium quieti dies, feriae nominarentur, nisi maiores eos, qui

20) De Leg. 1. ch. 5--6.

21) De Off. 1. ch. 10: Referri enim decet ad ea, quae posui principio
fundamenta iustitiae:p'rimum, ut ne cui noceatur; deinde, ut communi
utilitati serviatur. Also De Off. 1. ch. 14.
 P. VAN WARMELO

ex hac vita migrassent, in deorum numero esse voluissent.

Eas in eos dies conferre ius, quibus neque ipsius, neque publi;
cae feriae sint: totaque huius compositio iuris pontificalis
magnam religionem caerimoniamque declarat 22).
When he considers the law as based on iustitia Cicero does
not exclude the laws, i.e. statutes. Even the statutes, just as
well as mos have to conform with iustitia for lex est summa
ratio. Statutes are made and chosen as rules conforming to
justice: Igitur doctissimis viris proficisci placuit a lege: haud
scio an recte, si modo, ut iidem definiunt, lex est ratio summa,
insita in natura, quae iubet ea, quae facienda sunt prohi-
betque contraria.Eadem ratio cum est in hominis mente con-
firmata et confecta, lex est. Itaque arbitrantur,prudentiam
esse legem, cuius ea vis sit, ut recte facere iubeat, vetet
delinquere: eamque rem illi Graeco putant nomine, a suum
cuique tribuendo, appellatam; ego nostro, a legendo .... Sed
quoniam in populari ratione omnis nostra versatur oratio,
popidariterinterdum loqui necesse erit, et earn legem, quae
scripto sancit quod vult, aut iubendo, aut vetando, ut vulgus,
appellare. Constituendi vero iuris ab illa summa lege capi-
amus exordium, quae saeculis omnibus ante nata est, quam
scripta lex ulla, aut quam omnino civitas constituta 23). He
expresses himself more forcibly: Hano igitur video sapien-
tissimorum fuisse sententiam, legem neque hominum ingeniis
excogitatam, nec scitum aliquod esse populorum sed aeternum
quiddam, quod universum mundum regeret, imperandi pro-
hibendique sapientia. Ita principem legem illam et ultimam,
mentem esse dicebant, omnia ratione aut cogentis, aut vetan-
tis dei: ex qua illa lex, quam dii humano generi dederunt,
recte est laudata.Est enim ratio mensque sapientis,ad iuben-
dum et ad deterrendum idonea .24). The statute, which is not
distinguished from the law, comes from nature - insita in
natura - and from the gods - dii humano generi dederunt.

22) De Leg. 2. ch. 22.

23) De Leg. 1. ch. 6; cf. De Leg. 3. ch. 19: Sequitur illud: ,,Inter-
cessor rei malae, salutaris civis esto." Quis non studiose reipublicae
subvenerit, hac tam praeclara legis voce laudatus?
24) De Leg. 2. ch. 4.
[9] IGNORANTIA IURIS 9
Nature and the gods wish us to be just and justice is the
foundation on which human society is built. Without justice
there can be no society 25). Society requires justice for the
utility of all and according to the Stoics the first rule of all
is to aid one another. This thought is expressed in the words
of Cicero: Quidquid enim iustum sit, id etiam utile esse cen-
sent; itemque, quod honestum, idem iustum: ex quo efficitur,
ut, quidquid honestum sit, idem sit utile,26). With these
should be read: atque ut placet Stoicis, quae in terris gignan-
tur, ad usum hominum omnia creari, homines autem homi-
num causa esse generatos, ut ipsi inter se aliis alii prodesse
possent: in hoc naturam debemus ducem sequi, communes
utilitates in medium afferre mutatione officiorum, dando,
accipiendo, turn artibus, turn opera, turn facultatibus devin-
cire hominum inter homines societatem 27).
Therefore, we may conclude that the gods and nature
require us to be just. Such is also the idea behind the law
of the peoples as well as the civil laws. For thereby society is
protected. This desire is furthermore a product of our reason.
Therefore, to be unjust, that is, to act contrary to the laws
of god and man, is contrary to reason. To be unjust is to act
contrary to the law of god and man, which law is to be found
within the conscience of each of us; to be unjust is to act
contra naturam. Nam, sibi ut quisque malit, quod ad usum
vitae pertineat, quam alteri acquirere, concessum est, non
repugnante natura; illud natura non patitur, ut aliorum
spoliis nostras facultates, copias, opes augeamus. Neque vero
hoc solum natura et iure gentium, sed etiam legibus popu-
lorum, quibus in singulis civitatibus respublica continetur,
eodem modo constitutum est, ut non liceat sui commodi causa
nocere alteri. Hoc enim spectant leges, hoc volunt, incolumen

25) De Off. 1. ch. 7: De tribus autem r'eliquis latissime patet ea

ratio, quae societas hominum inter ipsos et vitae quasi communitas con-
tinetur. Cuius partes duae sunt: iustitia, in qua virtutis est splendor
maximus, ex qua viri boni nominantur; et huic coniuncta beneficentia,
quam eandem vel benignitatem vel liberalitatem appellari licet.
26) De Off. 2. ch. 3.
27) De Off. 1. ch. 7.
10 P. VAN WARMELO [10]

esse civium coniunctionem: quam qui dirimunt, eos morte,

exsilio, vinculis, damno coercent. Atque hoe multo magis effi-
cit ipsa naturae ratio, quae est lex divina et humana: cui
parere qui velit, (omnes autem parebunt, qui secundum
naturam volent vivere) nunquam committet, ut alienum appe-
tat, et id, quod alteri detraxerit, sibi assumat .... Detrahere
autem de altero sui commodi causamagis est contra naturam,
quam mars, quam dolor, quam cetera generis eiusdem 28).
It is therefore clear that the rule regarding ignorantia
iuris is in its origin rather a philosophical and ethical rule
than a legal rule and it means that the ignorantiaiuris is to
disregard justice. Law and justice are derived from the gods
and are an integral part of nature. Thus the transgression of
a rule of law must necessarily lead to punishment and igno-
rance of these rules does not exist. It is the same as when
religious precepts are transgressed 29). Thus the law, being
above us all, must be obeyed and ignorance cannot suffice as
an excuse, 3o).
(4) This view, that ignorance of the law means disregar-
ding what everyone according to nature should know, is obvi-

28) De Off. 3. ch. 5 where also: Ex quo efficitur hominem naturae

obedientem homini nocere non posse. Deinde, qui alterum violat, ut
ipse aliquid commodi consequatur, aut nihil existimat se facer'e contra
naturam, aut magis fugiendam censet mortem, paupertatem, dolorem,
amissionem etiam liberorum, propinquorum, amicorum, quam facere'
cuiquam iniuriam. Si nihil existimat contra naturam fieri hominibus
violandis, quid cum eo disseras, qui omnino hominem ex homine tollat?
29) Cf. De leg. 2. ch. 16: Diligentia votorum satis in lege dicta est,
ac voti sponsio, qua obligamur deo. Poena vero violatae religionis
iustam recusationem non habet.
30) Cf. De leg. 3. ch. 1: Videtis igitur, magistratus hanc esse vim,
ut rpraesit, praesoribatque recta, et utilia, et coniuncta cum legibus.
Ut enim magistratibus leges, ita populo praesunt magistratus: vereque
dici potest, magistratum legem esse loquentem, legem autem mutum
magistratum.Nihil porro tam aptum est ad ius condicionemque naturae
(quod cum dico, legem a me dici, nihilque aliud intelligi volo), quan
imperium, sine quo nee domus ulla, nee civitas, nee gens, nee hominum
universum genus stare, nee rerum natura omnis, nee ipse mundtw
potest. Nom et hic Deo paret, et huic obediunt mnaria terraeque, et'
hominum vita iussis supremae legis obtemperat.
[11) IGNORANTIA IURIS

ously derived from the Stoic philosophy and can be attributed

to law as far as law is that which nature teaches to everyone.
In other words, it is easy to adopt this rule if law is merely
ius naturale.Also it is obvious that this rule is derived from
the habit of considering law to be such a ius naturale and
nothing else. This is clear from Cicero: Est quidem vera lex,
recta ratio, naturae congruens, diffusa in omnis, constans,
sempiterna; quae vocet ad officium iubendo, vetando a fraude
deterreat; quae tamen neque probos frustra iubet aut vetat,
nee improbos iubendo aut vetando movet. Huic legi nee abro-
gari fas est, neque derogari ex hac aliquid licet, neque tota
abrogaripotest; nee vero aut per senatum, aut per populum
solvi hac lege possumus: neque est quaerendus explanator aut
interpres eius alius: nee erit alia lex Romae, alia Athenis,
alia nunc, alia posthaq;!sed et omnes gentes, et omni tempore,
una lex et sempiterna et immutabilis continebit..... 31). "

He considers the ius -naturaleand mentions its main cha-

racteristics. The words neque est quaerendus explanator aut
interpres eius alius are most significant for our purpose.
It explains that it is not necessary for anyone to explain the
ius naturale, because everyone knows it. Therefore we may
conclude that our rule is derived from the philosophical view
taken of law, namely that it is something nature imposes
upon everybody and forming part of everyone. Obviously, it
is impossible not to know it and therefore one can disregard
it but not plead ignorance. This view, taken from the Stoic
philosophy was also applied to law in a broader sense, that
is, law which does not conform with the ius naturale.
It is clear that it is impossible to maintain the fiction that
law and justice are always the same and that our reason can
always teach us what justice may be. On the other hand it is
hardly feasible to reject the rule that everyone is supposed
to know the law because the law is also derived from the
lesser mortal, man, and therefore not necessarily congruent
with devine or natural justice. Therefore the obvious step is
to attempt to make human laws known and clear to everyone

31) De Rep. 3. ch. 22.

 P. VAN WARMELO [12]

so that the excuse that the law was not known may be reduced
to a minimum. Thus we find the codifications such as the
law of the twelve tables and the rule that a law must be
promulgated before it can have the force of law. In the same
spirit the fiction is adopted that ius civile est, quod neque in
totum a naturali vel gentium recedit nec per omnia ei ser-
vit 32), and is Marcian, following the footsteps of Demosthe-
nes, going to talk of v6puog ei3 qya pev xa' Moeov &eoi) 33).
Everyone realises, of course, that these are fictions; it is
evident that no one can know every rule of law. We may
know the general trend and spirit of the law but that is about
all. But the fact that the jurists introduce these fictions and,
accordingly, can maintain the rule of ignorantiaiuris, in the
sense of ignorance of law, also with regard to law made by
man, does not mean that these fictions and the rule of igno-
rantia iuris serve no useful purpose.
When we have to do with law we have before us rules con-
cerning the social order. Where a legal rule is infringed the
infringement affects, as a rule, society as a whole. Thus, if
the individual is allowed to be excused because of his igno-
rance of the law, it is possible that an infringement affecting
the whole of society is excused. Furthermore, it is of the
nature of law that we may expect that others shall act accor-
ding to law. Therefore, should ignorance be a sufficient plea,
it means that the individual is placed in a less favourable
position in that he may be disappointed with impunity in this
expectation. Then again, the law is often derived from a poli-
tical entity which is also there to enforce it. Where ignorance
may be pleaded as an excuse the powers of such a political
entity is also restricted. Finally, in the cases where error is
a sufficient excuse, that is, in several cases of error facti,
this excuse is as a rule based on a lack of consensus 34). But
in the case of error iuris consent does not come into the pic-
ture at all. Law consists of a body of rules superimposed on

32) Ulpian in D. 1. 1. 6. pr.

33) D. 1. 3. 2.
34) Cf. D. 2. 1. 15; D. 5. 1. 2. pr.; D. 39. 3. 20; D. 44. 7. 57.
[13] IGNORANTIA IURIS

the members of the community. Therefore, to recognise error

iuwris as a valid excuse is almost the same as disregarding the
function of law to regulate society and to consist of rules
binding on everyone.
To conclude we may say that the rule of ignorantiaiuris
is originally of a philosophical character. The jurists knew
this rule and adopted it as part and parcel of legal science.
Probably, as regards error facti, there was a somewhat
similar state of affairs: originally an error facti was of no
importance as a plea, but as time went by it could be employed
as an excuse in certain specified circumstances. For the rule
of ignorantiaiuris to undergo similar modifications is hardly
feasable. Whenever ignorance of the law is excused it simply
means that we have a new legal rule modifying the first rule.
To illustrate this with an example: we have the general rule
that it is forbidden to contract an incestuous marriage. When
we find, subsequently, that the woman is excused in the case
where she did not know that the marriage is incestuous we
have a second rule having regard of the factual error -
namely the error of the woman in not knowing that the mar-
riage was incestuous. A general rule allowing ignorance of
law to be pleaded would be fatuous; it is, however, possible
to excuse ignorance in certain specific cases.

(5) When we look at the texts of Roman law we find

that the rule that ignorance of law is no excuse is formulated
in several. 35). However, these texts wherein our rule was
formulated, were, no doubt, of a fairly late period. The rule
is discussed mainly in C. 1.18 and D. 22.6. In fact, the title
in the Codex has no counterpart in the Codex Theodosianus
and is possibly based on some post-classical collection of
texts 36). On the other hand, for practical reasons, a number
of exceptional cases were introduced where our rule was not
followed and ignorance of law was treated in the same way

35) E.g. D. 22. 6 lex 2; lex 4; lex 7; lex 9. pr.

31) De Visscher, Nouvelles 6tudes de droit romain public et priv6.
Les sources du droit selon le code de Justinien p. 358; p. 363; p. 367.
 P. VAN WARMELO [14]
as we find ignorance of fact is frequently treated. No doubt,
the rule that ignorance of law is no excuse was laid down
after ignorance of fact became a valid excuse in certain cases.
Therefore, the jurists wish to distinguish between the effects
of error facti and error iuris. However, it would appear that
the cases where ignorance of law was considered a valid
excuse gradually increased although the general rule: igno-
rantiaiuris non excusatur remained unchanged 37). For dif-
ferent reasons these modifications were introduced in favour
of certain specified classes of persons and they were released
from the necessity of knowing the law to a greater or lesser
degree. It is interesting to note what the reasons were for
introducing these modifications and when they were intro-
duced. It will be useful to group the texts which have to be
discussed under different heads.
Before discussing these groups of texts it may be useful
to point out that error in Roman law does not mean every
mistake. As a rule, where error may be relevant, such a
mistake must be reasonably serious and made under circum-
stances that make the excuse of such an error equitable 38).
Therefore, in a number of texts this error is qualified as
iustus or is spoken of a iusta causa errandi, iusta causa
erroris, iusta causa ignorantiae or iusta ignorantia. In a
word, where an error is of such a nature that it may be
pleaded as an excuse or where it is at all relevant, it is fre-
quently qualified as iustus error. We may refer to D.41.4.11;
D.11.1.11.10; D.41.2.50, pr.; D.41.3.44, pr.; D.31.89.7;
D.50.17.42. However, this does not mean that every iustus
error is excusable or is relevant as appears from D.41.2.50,
pr. and D.41.3.44, pr.
It is therefore more than probable that in the cases where
error iuris is to be taken account of, it is actually a iustus

37) Voci, L'errore nel dir. rom. (1937) Ch. V, recognises as excep-
tions to the general rule in classical law the case of bonorum possessio,
and the case of condictio indebiti (p. 130 sqq.); the same applies in
the case of certain privileged persons (Ch. V) and in the case of
certain delicts and crimes (p. 184 sqq.).
38) Cf. Voci, op. cit. p. 247.
[15] IGNORANTIA IURIS

error iuris that is intended. It is hardly likely that where

ignorance of law was relevant that this error should not be
reasonable - at least in the usual case. This may be sup-
ported by the fact that as regards the lex Falcidiawe find
that error iuris as well as errorfacti were relevant as will be
shown later. Further, according to D.6.1.76.1 the error with
regard to the lex Falcidiahad to be a iustus error. Therefore
we may conclude that where the error iuris is relevant with
regard to the lex Falcidia such an error must be iustus.
Nevertheless, it must be repeated that there are cases - at
least in the later law - where every error iuris appears
to be excusable as will appear from § 3 (d).
(a) In a number of cases where usucapio or the longi tem-
poris praescriptio is discussed, our rule is mentioned. It is
clear that it is introduced ex post facto as a reason for certain
decisions without being exactly ad rem. It will appear that
there are cases where the error is of importance in usucapio;
that is, where the error,whether of law or fact, has a bearing
on the question whether usucapio takes place or not. However,
it will be noticed that in some cases the ignorantiaiuris rule
is employed as a reason for their decision by the compilers
of the texts while error as such is not in question but the
requirement of iusta causa. The rule is sometimes used
indiscriminately while it is actually not the point in question.
D.41.4.2.15 Paulus libro quinquagensimo quarto ad edictum.
Si a pupilto emero sine tutoris auctoritate,quem puberem esse
putem, dicimus usucapionem sequi, [ut hic plus sit in re quam
in existimatione]: quod si scias pupillum esse, putes tamen
pupillis licere res suas sine tutoris auctoritate administrare,
non capies usu, [quia iuris error nulli prodest.]
There is not the slightest doubt that interpolations can be
noticed in the text 39). It is quite possible that as far as the
first sentence is concerned (Si a pupillo .... usucapionem
sequi) we do not have the exact text of the jurist Paul's
words but, nevertheless, the words express the thought of a
classical jurist and at least may express his thoughts. The

39) Cf. Index Int. ad h.1.

 P. VAN WARMELO [161

words ut hic .... in existimatione are no doubt interpolated

while the second case: quod si scias .... seems hardly to fit
in the text. (Cf. the changing over from emero to scias, putes
and capies; administrare where disponere would be more
correct.) But nevertheless, in a case like that set in this last
sentence, Paul would no doubt have given a similar solution
although a classical jurist would never have motivated his
solution with quia iuris errornulli prodest. Thus in both these
cases (which may originate with Paul while they were origi-
nally separated and later joined together by a compiler or a
pre-Justinian commentator) we have to do with an error.
Accordingly, in both cases, the question arises whether we
have a causa usucapionis which is vitiated by the particular
error - whether we have a putative cause or not. The reply
of the jurist was, no doubt, as far as the first case is con-
cerned, that the error is of no importance - that usucapio
was possible. There is a iusta caus-a usucapionis and the per-
son obtaining the thing is acting in good faith. As for the
second case, no doubt, a jurist of the classical period would
have given a similar solution, but the reason would have been
that a just cause was lacking and not that there was error
iuris.
This may reasonably be concluded from what is to be found
in the Institutes of Gaius 2.50, where the partus ancillae is
sold by the usufructuary of the slave while the seller believes
that the partus is his property. Gaius does not mention any
error facti (e.g. the belief that the mother was the seller's
property), or error iuris (e.g. the seller believes that the
partus of the slave whereof he has the usufruct is his pro-
perty). Such errors are of no importance; they do not effect
the good faith nor the iusta causa. This appears again from
another text from Gaius which has been handed down to us
where the same case is discussed (if not by Gaius, at least
by some post-classical commentator of his text) 40). Here
we read of aliquo errore without any distinction being made
between error iuris or error facti. Thus the question is

40) D. 41. 3. 36. pr. 1, lex 37. pr.

[17] IGNORANTIA IURIS

whether there is iustus error or not, and such an error can

be of fact or law. Where there is such an error it does not
affect the causa, and usucapio can take place when the usu-
capiens is acting in good faith. This view is supported in
D.41.3.32.1 Pomponius libro trigensimo secundo ad Sabinum.
Si quis id, quod possidet, non putat sibi per leges licere usu-
capere, dicendum est, etiamsi erret, non procedere tamen
[eius] usucapionem, [vel] quia non bona fide videatur possi-
dere [vel quia in iure erranti non procedat usucapio].
Usucapio cannot take place because there is a lack of good
faith. Thus the final words have to be non procedere tamen
ei 41) usucapionem, quia non bona fide videatur possidere.
The error iuris is, in itself, of no importance but it is of im-
portance where it affects the good faith. It is practically the
same reasoning which we may apply in D.41.3.31. pr. Paulus
libro trigensimo secundo ad Sabinum. [Nunquam in usucapi-
onibus iuris error possessori prodest:] et ideo Proculus ait,
si per errorem initio venditionis tutor pupillo auctor factus
sit vel post longum tempus venditionis peractum, usucapi non
posse, [quia iuris error est.]
There is no doubt that this text does not give the exact
words of the classical jurist to whom it is attributed 42). The
first sentence and the last phrase may have been interpolated
by the Compilers; on the other hand it is even more probable
that they were introduced by post classical commentators
attempting to explain the text while they did not grasp the
fundamental reasoning. The first phrase mentions erroriuris
but the second sentence, where the words of Proculus are
given, we have to do with an error facti: the tutor has made
the auctoritatis interpositio too soon or too late. Therefore
the cause has been affected and usucapio cannot take place:
the sale has been vitiated. Thus we have something very
similar to the text of Paul which is to be found in
D.41.4.2.15. If the reasoning in these two texts (namely that
error iuris non prodest) is correctly attributed to. Paul, then

41) Cf. Ind. Int.. Especially Beseler, 1. cit. and Voci, op. cit. p. 176.
4) Cf. Ind. Int. Solazzi in Iura II (1951) p. 136; Voci, op. cit. p. 176.
 P. VAN WARMELO [18]

it would mean that Paul is so little a classical jurist that he

would lay down the illogical rule that the possessor who has
made an error iuris is either in bad faith (cf. the case men-
tioned in D.41.3.32.1) or there is an insufficient causa usu-
capionis. The same applies to the text, attributed to Pom-
ponius, D.22.6.4; - a text that is hardly likely to be found
in a librum ad Sabinum 43). Also in D.22.6.7 we find the same
type of generalisation. We have a text attributed to Papinian
but it is obviously removed from its original context and
appears more likely to be some generalisation introduced by
a post-classical commentator or by the Compilers. D.22.6.7
Papinianuslibro nono decimo quaestionum. Iuris ignorantia
non prodest adquirere volentibus, suum vero petentibus non
nocet.
When this rule is applied to usucapio the first phrase
merely repeats that ignorance of law means lack of good
faith on the part of the possessor or that the just cause is
affected. The second phrase has, no doubt, a bearing on a
case such as to be found in D.31.79 Papinianuslibro undecimo
responsorum. Quae <praedia uxor> 44) fideicommissa
moriens libertis viri debuit, eorundum praediorum suis
quoque libertis fructum reliquit: iuris ignoratione lapsi qui
petere praedia ex mariti testamento debuerunt, secundum
fideicommissum inter ceteros longo tempore perceperunt.non
ideo peremptam videri petitionem prioris fideicommissi
constitit.
Here again we have a decision which is, in the first place,
based on good faith or just cause. Papinian explains that
even though the liberti are ignoratione iuris lapsi, never-
theless, the others cannot succeed in employing the exception
longi temporis against the claim of the first liberti for the
simple reason that they (who wish to employ the exception)
are either in bad faith or at least have no iusta causa. On
the other hand this does not necessarily mean that where we

43) Cf. Lenel, Palingenesia h. 1.; Voci, op. cit. p. 177.

44) Mommsen adds the words praedia uxor. Without them the text
is. incomprehensible.
[19] IGNORANTIA IURIS

have to do with the exceptio longi temporis, the rule is always

ignorantia iuris non excusatur. Where the petens makes a
mistake of law, or more correctly, of his rights, it does not
mean that he loses his rights and that the volens acquirere
is in good faith and has a just cause.
To sum the matter up we may state that the rule of igno-
rantiaiuris is actually not applicable in the cases of usucapio.
In the classical law apparently, no distinction was made as
regards usucapio between error iuris and error facti. The
main question was whether there was good faith or just
cause. In several texts, where these are lacking and usucapio
is not allowed, we find that the ignorantia iuris rule is
mentioned as an explication for this failure to acquire by
usucapio. No doubt we have here additions to the texts which
need not be solely the products of the Compilers. It is pos-
sible that this rule was added to these texts while examples
were kept in view where there is no just cause as well as
ignorance of law. We find such examples in texts like C. Iust.
7.71.4.1 and C. Th. 4.14.1.
(b) Our rule is also mentioned in conjunction with the
bonorum possessio and it would appear that we find almost
the same development as is to be found with regard to usu-
capio. The distinction is made between error iuris and error
facti, and also we find that whoever demands bonorum pos-
sessio is not succesful if he has made a mistake regarding
the length of time allowed wherein he could demand the pos-
session. This decision is justified by applying the rule of
ignorantia iuris. It seems, however, that we have to do again
with a justification introduced ex post facto, and that these
decisions were given, in so far as there was any error iuris,
because it was considered that the particular error was not
iustus. To begin with, it is useful to take the first text from
the title in the Digest, De iuris et facti ignorantia.D.22.6.1
Paulus libro quadragesimo quarto ad edictum. Ignorantiavel
facti vel iuris est. (1) Nam si quis nesciat decessisse eum,
cuius bonorum possessio defertur, [non cedit ei tempus] < in
facto errat>:sed si sciat quidem defunctum esse cognatum,
nesciat autem proximitatis nomine bonorum possessionem
 P. VAN WARMELO [20]
sibi deferri, aut se sciat scriptum heredem, nesciat autem
quod scriptis heredibus bonorum possessionem praetor pro-
mittit, [cedit ei tempus, quia] in iure errat.idem est, si frater
consanguineus defuncti credat matrem potiorem esse. (2) Si
quis nesciat se cognatum esse, interdum in iure, interdum in
facto errat. nam si et liberum se esse et ex quibus natus sit
sciat, iura autem cognationis habere se nesciat, in iure errat:
at si quis (forte expositus) quorum parentium esse ignoret,
fortasse et serviat alicui putans se servum esse, in facto magis
quam in iure errat. (3) Item si quis sciat quidem alii delatam
esse bonorum possessionem, nesciat autem ei tempus praeter-
isse bonorum possessionis, in facto errat. idem est, si putet
eum bonorum possessionem accepisse. sed si sciat eum non
petisse tempusque ei praeterisse, ignoret autem sibi ex suc-
cessorio capite competere bonorum possessionem, [cedet ei
tempus, quia] in iure errat. (4) Idem dicemus, si ex asse
heres institutus non putet se bonorum possessionem petere
posse ante apertas tabulas: quod si nesciat esse tabulas, in
facto errat.
Without accepting all the interpolations which have been
claimed to exist 45), there is, however, no doubt that the text
cannot be in the exact words of Paul. There are two matters
pertaining to this text which would interest a classical jurist.
The first is the distinction between ignorantiafacti and igno-
rantiaiuris.Therefore the question whether ,,cedit ei tempus"
or not, appears to be of no importance. In the second place,
it would interest the classical jurist whether such examples
of error (whether of law or of fact) were examples of iustus
error. No doubt, in the cases where a solution is given one
way or the other according to whether ,,cedit ei tempus" or
not, the jurist would have given a similar decision. But he
would have based his answer on the reasoning that the error
in those particular cases was iustus or not. In other words,
the reasoning would not have been: the bonorum possessio
is allowed or refused because ,,cedit ei tempus quia in iure

45) Cf. Ind. Int. and Voci, op. cit. p. 216 sq.; he considers that
error iuris was excused in classical law in this case.
(21] IGNORANTIA IURIS

errat" or not, but because the error was iustus or not. Thus
we see again that in such a case as of bonorum possessiowhere
the question of iustus error is relevant, it is possible that the
error may be as regards the legal position or the rights of
parties. Thus the rule of ignorantiaiuris is not applied (even
though it was generally laid down even in the time of Cicero)
but the Compilers or, at any rate, late pre-Justinian commen-
tators, dragged the rule into the discussions and solutions
adopted by the classical jurists. This was done because they
did not distinguish clearly between error which is relevant
and which is irrelevant. We trust that what has been stated
will also appear from D.37.1.10 Paulus libro secundo ad
Sabinum. In bonorum possessionibus iuris ignorantia non
prodest, quo minus dies cedat, et ideo heredi instituto et ante
apertas tabulas dies cedit. satis est enim scire mortuum esse
seque proximum cognatum fuisse copiamque eorum quos con-
suleret habuisse: scientiam enim non hanc accipi, quae iuris
prudentibus sit, sed earn, quam quis aut per se habeat aut
consulendo prudentiores adsequi potest.
We find here practically the same solution as is to be found
in D.22.6.1. The fragment 46) has been judiciously chosen by
the Compilers because the first impression derived from it is
that bonorum possessio cannot be obtained where there is an
error iuris. No doubt this text transmits a decision which
may very well be derived from Paul. Indeed, in this parti-
cular case the ignorantia iuris cannot be excused, but,
however, it is clear that this is so, not because of our rule,
but because there is no iustus error. We find that Paul is
making no distinction between error facti and error iuris.
He is only concerned with the error being iustus or not; as
follows, according to our view, from the words copiamque
eorum etc. Thus the person wishing to obtain the possession
is required to act as any careful person should and that means
also that he should take legal advice where it is necessary,
even as the jurist were to be consulted not merely to know
the law but also for the sake of knowing factual circumstan-

46) Cf. Voci, op. cit. p. 218, who rejects almost all of this fragment.
 P. VAN WARMELO [22]
ces regarding points of law. The jurists gave advice concer-
ning the acts which took place in daily life and the careful
man realised that he had to consult them 47). However, the
law underwent a change and according to the constitution
mentioned in C.6.9.8, ignorance is a valid excuse even though
it has to do with fact or law. Furthermore it is of no impor-
tance whether such an error is iustus or not 48).
(c) It would appear that the same applies with regard to
the Lex Falcidia. That is to say, that the iustus error is
excused. No doubt, no distinction was made in classical
times with regard to error iuris and error facti. However,
at some later stage this difference was introduced. This
would appear from:
D.22.6.9.5 Paulus libro singulari de iuris et facti ignorantia.
Si quis ius ignorans lege Falcidiausus non sit, nocere ei dicit
epistula divi Pii. sed et imperatoresSeverus et Antoninus in
haec verba rescripserunt:,,Quod ex causa fideicommissi inde-
bitum datum est, si non per errorem solutum est, repeti non
potest. quamobrem Gargiliani heredes, qui, cum ex testa-
mento eius pecuniam ad opus aquae ductus rei publicae Cir-
tensium relictam solverint, non solum cautiones non exege-
runt, quae interponi solent, ut quod amplius cepissent muni-
cipes quam per legem Falcidiam licuisset redderent, verum
etiam stipulati sunt, ne ea summa in alios usus converteretur
et scientes prudentesque passi sunt earn pecuniam in opus
aquae ductus impendi, frustra postulant reddi sibi a re
publica Cirtensium, quasi plus debito dederint, cum sit
utrumque iniquum pecuniam, quae ad opus aquae ductus data

47) Cf. Ulpian citing Pomponius in D. 38. 15. 2. 5.

48) .... sciat sibi non obesse, si per rusticitatem, vel ignorantiam //
facti vel absentiam // vel quamcumque aliam rationem intra p'raefini-
turn tempus bonorum possessionem minime petiisse noscatur. The words
facti vel absentian are absent in some mss. Have we here a post-
Justinian gloss which has been added by someone who saw in the words
per rusticitatem a renvoi to the rule of ignorantia iuris non nocet
(as is was introduced in most cases where we have to do with peasants) ?
Was, therefore, the word facti added after ignorantiamto dinstinguish
between error facti and error iuris?
[23] IGNORANTIA IURIS

est, repeti et rem publicam ex corpore patrimonii sui impen-

dere in id opus, quod totum alienae liberalitatis gloriam
repraesentet. quod si ideo repetitionem eius pecuniae habere
credunt, quod imperitia lapsi legis Falcidiaebeneficio usi non
sunt, sciant ignarantiam [facti,] non [iuris] prodesse nec
stultis solere succurri, sed errantibus." (6) Et licet muni-
cipum mentio in hac epistula fiat, tamen et in qualibet persona
idem observabitur.sed nec quod in opere aquae ductus relicta
esse pecunia proponitur, in hune solum casum cessare repe-
titionem dicendum est. nam initium constitutionis generale
est: demonstrat enim, si non per errorem solutum sit fidei-
commissum, quod indebitum fuit, non posse repeti: item et
illa pars aeque generalis est, ut qui iuris ignorantia legis
Falcidiae beneficio usi non sunt, non possint repetere: ut
secundum hoc possit dici etiam, si pecunia, quae per fidei-
commissum relicta est quaeque soluta est, non ad aliquid
faciendum relicta sit, et licet consumpta non sit, sed exstet
apud eum cui soluta est, cessare repetionem.
We have here a commentary of Paul based on a rescript of
the emperors Severus and Antoninus. The fragment is taken
from Paul's monograph on the question of ignorantia iuris
and facti and it would appear that this work had been com-
mented on either by the Compilers 49) or at least by post-
classical jurists. The first words of this particular fragment
(D.22.6.9. pr.) - Regula est iuris quidem ignorantiamcuique
nocere, facti vero ignorantiam non nocere - appear to lay
down a generalisation which is either derived from some
other source than Paul, or, if it contains his preliminary
remarks, are not to be interpreted too literally. 50) The
same applies as has been remarked on Papinian as cited in
D.22.6.7.
The words attributed to Paul, as has been cited above, are
based on the rescript of the emperors and accordingly the
first sentence hardly gives a correct rendering of the rescript.

49) Cf. Voci, op. cit. p. 142 sqq.

50) Cf. Guarino, Appunti sulla ignorantia iuris nel dir. pen. rom.
(1942) p. 43.
 P. VAN WARMELO [24]
The. same applies to the final words of the rescript - sciant
ignorantiam facti, non iuris prodesse nec stultis solere suc-
curri, sed' errantibus. Possibly the necessary interpolations
have been made in this last sentence and the generalisation
of the first sentence attributed to Paul by some commentator
Who could not appreciate the fact that the errans would be
safeguarded (that is where a iustus error has been made).
No doubt the same commentator introduced the further infor-
mation at the end - item et illa pars aeque generalis est,
etc. - discovering thereby another general rule which Paul
would not have discovered. In fact, if the errans is safe-
guarded, this last generalisation would hardly be true. From
the extent of the changes it would appear more probable that
here, too, we have added comments from a pre-Justinian
source rather than from the Compilers themselves. A similar
addition'to the text is no doubt to be found in C.6.50.9 Imp.
GordianusA. Mestriano. Error [facti] quartae ex causa fidei-
commissi non retentae repetitionem non impedit. is autem,
qui sciens se posse retinere universum restituit, condictionem
non habet: [quin etiam, si ius ignoraverit, cessat repetitio.]
PP. xvk. Nov. Pio et Pontiano conss. (a. 238).
Here it is expressly stated that an error facti cannot pre-
vent the errans to claim what has been paid out in excess of
the quarta Falcidia. Obviously we have to do with an error
iustus. It is just as obvious that where the claimant is sciens
there can be no thought of a iustus error. In this Case it is
of no importance whether an appeal is made on the grounds
of error facti or of error iuris. Therefore the mention made
of fact in the first sentence appears hardly correct and
seemingly introduced merely to form a contrast to the error
iuris in the final sentence.
Under all these circumstances we may state that in the
classical law, in some cases where iustus error could serve
as an excuse, it was of no importance whether the error was
of fact or of law. Such a distinction was of no importance 51).
We find, however, that in the later law, in cases where error

51) To add further examples, cf. Inst. Gai 1. 67; D. 6.1..76. 1.

[25] IGNORANTIA IURIS

is not excused, that the reason is given that ignorance of law

is no excuse.
(d) This is not the only development which we find in
Roman law. Apart from these cases where we have to do
with iustus error there are a number of other circumstances
under which the rule of ignorantiaiuris is introduced. Igno-
rance of law was an admissable excuse in several cases which
are to be recapitulated hereafter. It may be useful to point
out first, however, that frequently the introduction in the
texts of this rule is of post-classical times but, nevertheless,
the fact that ignorance is excused goes back to an earlier
period 52).
(I) Firstly we may refer to some texts were dolus is in
issue. On the one hand we find texts according to which a
plea of dolus is of no avail where there is ignorance of a legal
point. Probably we have here again the view that for dolus
to be absent there must be a just cause and error on the part
of the person wishing to avail himself of this plea 43). On the
other hand it sometimes appears that ignorance of law is suf-
ficient to constitute lack of dolus. D.2.1.7.4 Ulpianus libro
tertio ad edictum. Doli mali autem ideo in verbis edicti fit
mentio, quod, si per imperitiam [vel rusticitatem] 54) vel ab
ipso praetore iussus vel casu aliquis fecerit, non tenetur.
It is clear from this text that, to constitute a lack of dolus,
ignorance of the law is not especially excluded 55). We find
52) Cf. Guarino, op. cit. ad D. 48. 10. 15. 5 (on p. 35); D. 5. 3. 25. 6
(on p. 19); C. 9. 23. 4 (on p. 34); D. 29. 5. 3. 22 (on p. 31); D. 3. 2. 11.
4 (on p. 22); C. 9. 23. 3 (on p. 33). We may add C. 5. 5. 4; D. 14. 6. 3.
pr. on the Sc. Macedonianum: Si quis patrem faimilias esse credidit
non vana simplicitate deceptus nec iuris ignorantia,etc.; Coll. 1. 12. 1
Nonnumquam per ignorantiam delinquentibus iuris civilis venia tribui
solet, si modo rem facti quis, non iuris ignoret; (a somewhat sweeping
statement). Very likely also in D. 17. 1. 29. 1. Probably the iustus
error is the criterion without taking into consideration the distinction
between error iuris and error facti.
53) E.g. D. 43. 24. 4; D. 48. 10. 15. pr.; Inst. lust. 4. 2. 1; D. 47.
8. 2. 18. Though the texts may be corrupt, it is clear that mere
ignorance is not always sufficient to constitute absence of fraud.
54) Vide below the remarks concerning rusticitas.
55) Cf. also D. 50. 9. 6.
26 P. VAN WARMELO [26]
the same laid down in some other texts but which are clearly
of post-classical times 56). In post-classical times for reasons
of equity, the excuse of ignorance of law was introduced in
many cases.
(II) Women are frequently excused where they act in
ignorance of the law. No doubt their ignorance must be in
good faith but their ignorance is not necessarily due to a
iustus error. Also, there is no general rule that the woman is
to be excused where she is ignorant of the law, but only in
several specific cases is such an excuse valid because it seems
an equitable solution. No doubt these cases are chiefly
derived from post-classical rulings.
On the one hand there are some texts which specifically
exclude ignorance of law as an excuse where we have to do
with women. As an example we may mention C.6.9.6 Iuris
ignorantiam nec mulieribus prodesse in edicti perpetui
cursum de agnoscenda bonorum possessione manifestum est.
As we have seen, a iustus error would be a good excuse for
a man as well as a woman in this matter of bonorum pos-
sessio. However, here it is expressly stated that mere igno-
rance of law (not constituting a iustus error) is not sufficient
as an excuse for a woman. This makes it fairly obvious that
in some other cases such ignorance would be considered a
valid excuse. It should be remembered that we have here a
constitutio of the year 294 A.D.
However, from the texts it is clear that the difference
between erroriuris and error facti is well established in post-
classical times. Indeed it would seem that an attempt is made
to lay down a general rule that as regards women: errorfacti
non nocet (without taking into consideration whether the
error is iustus or not) and further: (D.22.6.8) iuris error
feminis in compendiis non prodest 57).
Furthermore, in a number of possibly post-classical texts

51) Cf. Guarino op. cit. ad D. 5. 3. 25. 6 (on p. 19-20) ; D. 29. 5. 3.

22 (on p. 23 sq.).
57) This general rule is to be found in other texts e.g. C' 1. 18. 11;
C. 1. 18. 3; C. 1. 18. 13.
[27] IGNORANTIA IURIS

whereof some are of Justinian, the woman is excused where

she is guilty of incest due to her ignorance of the law 58).
But it would seem that this ruling has its roots in classical
law 59) where the woman was excused if the incest had fol-
lowed on a iustus error with regard to law or fact.
D.23.2.68 Paulus libro singulariad senatus consultum Turpil-
lianum. Iure gentium incestum committit, qui ex gradu ascen-
dentium vel descendentium uxorem duxerit. qui vero ex latere
earn duxerit quam vetatur, vel adfinem quam impeditur, si
quidem palam fecerit, levius, si vero clam hoc commiserit,
gravius punitur. cuius diversitatisilla ratio est: circa matri-
monium quod ex latere non bene contrahiturpalam dilinquen-
tes ut errantes maiore poena excusantur, clam committentes
ut contumaces plectuntur.
This text has been attacked as being interpolated and
especially the final passages from cuius diversitatishave been
mentioned as not being the words of Paul. It is indeed pos-
sible that the text did undergo changes in the period between
Paul and the compilation of the Digest. However, it is remark-
able that no distinction is made as between error iuris and
error facti nor between men and women. Indeed, as a result
of error the errantes escape punishment to a certain extent
and therefore their ignorance is partly excused. Furthermore
we see in many texts that the woman more particularly is
excused where she commits incest as a result of error iuris.
There is no doubt that some of these texts are of post-clas-
sical times but nevertheless, if we consider the text we have
just discussed, it is plain that this rule is merely an adap-
tation of classical law.
D.48.5.39.2 Papinianus libro trigensimo sexto quaestionum.
Quare mulier tune demum eam poenam, quam mares, sustine-
bit, cum incestum iure gentium prohibitum admiserit: nam si
sola iuris nostri observatio interveniet, mulier ab incesti
crimine erit excusata.
Here we find that the woman is excused where we have

58) Coll. 6. 3. 3; Pauli Sent. 2. 26. 15; Nov. Iust. 12. 1.

59) Contra Voci L' Errore nel dir. rom. (1937) p. 223 sqq.
 P. VAN WARMELO [28]

to do with an error iuris nostri (no question is asked about

the error being iustus or not) but this is not the case where
she is guilty of an error iuris gentium. It is possible that this
text and many others like it are of post-classical times 60).
Indeed there are obvious additions: it will be seen from par.
I and 7 of this lex that originally no difference was made as
regards error iuris and error facti; in par. 4 is found:
mulieres in iure errantes incesti crimine non teneri supra
dictum est, and this is not in accordance with women being
only excused when there is error iuris nostri. Nevertheless,
it is clear that in a number of circumstances in post-classical
law women were excused if they were ignorant of the law.
As regards the classical law, it is equally plain that error
iuris was sometimes accepted as an excuse (whether of law
or of fact) where we have to do with a iustus error. It is
very likely that even in classical law the tendency would
have been to be more indulgent towards the errors made by
women and to excuse them before men would be excused. In
this way women would be excused of errors, even of errors
of law, before men would be excused. There are many signs
of such indulgence towards women 61). In the text mentioned
above it is interesting to notice the distinction made between
ius nostrum and ius gentium. To Cicero this distinction
would have been abundantly clear. Where we have to do with
the ius gentium reference is made to such law as everyone
knows or has to know, while our law comprises statutes and
suchlike which the individual cannot always be expected to
know 62).
(III) In a number of texts we find that error iurts is

60) Cf. Guarino, op. cit. p. 30. As regards other texts said to be
post-classical, cf. Pauli Sent. 2. 26. 15; Coll. 6. 3. 3 and more particularly
the sedes materiae D. 48. 5. 39.
61) Cf. D. 25. 4. 2. 1 where no distinction is made between error
iuris and error facti; D. 48. 10. 15. 4, 5 (Cf. Guarino, op. cit. p. 35, 36);
D. 49. 14. 2. 7; D. 23. 2. 57a, C. 5. 5. 4.
02) Cf. Lombardi, Ricerche in tema di ius gentium (1946) p. 5 et
sqq. who affirms that the mention of incestum iuris gentium has been
interpolated in these texts.
[29] IGNORANTIA IURIS

excused because of rusticitas. No doubt we have here a some-

what similar development. Because of his lesser opportunities
to know the facts the peasant was more readily excused than
others, but without making a distinction between error iuris
and error facti. This position was adapted in the later law
and rusticitas was recognised as an excuse where there was
error iuris - at least in a number of cases.
D.2.13.1.5 Ulpianus libro quarto ad edictum. Eis, qui ob
aetatem vel rusticitatem vel ob sexum lapsi non ediderunt
[vel ex alia lusta causa], subvenietur 63).
Here, no distinction is made between error iuris and error
facti. On the other hand, this appeal to rusticitas is mentioned
in some texts and in some of them is of post-classical inter-
polation. It is, however, hardly possible to point out exactly
when there is an addition and when rusticitas is of classical
times. It would appear to be of later date in the texts
D.2.1.7.4; D.29.5.3.22; D.2.5.2.1 64); but it would be difficult
to maintain such an interpolation in texts like D.2.13.1.5;
D.49.14.2.7; C.5.6.1; C.2.2.2; D.25.4.1.15 65). At any rate, the
fact that rusticitas is taken into consideration appears from
the fact that in some cases it does not serve as an excuse,
e.g. C.5.6.1; C.2.2.2.
(IV) In a number of cases ignorance of law is excused
where the errans is an adolescens. The general rule is laid
down in D.22.6.9 pr. in a text that is heavily interpolated 66).
On the other hand, there can be no doubt that more indul-
gence was shown to the adolescens where he acted in igno-
rance of factual circumstances. In classical times the obvious
method for him to obtain satisfaction was by means of resti-
tutio in integrum. Nor is there any doubt that this indulgence
was also shown to him where he acted in ignorance of the

03) For the interpolation, cf. Ind. Int., Guarino, op. cit. p. 22 and
Voci L'Errore nel dir. rom. (1937) p. 221.
64) Cf. Guarino, op. cit. p. 22, 23, 41.
65) Cf. Pringsheim, Die archaistische Tendens Justinians, Studi
Bonfante I, p. 583 n. 184 (7).
06) Cf. Ind. Int. and remarks made previously. Also Voci op. cit.
p. 221.
 P. VAN WARMELO [301
law, although this does not mean that he was always excused
where he was ignorant of the law 67). Here again, there are
cases where the adolescens was excused if he was ignorant
of law as well as of fact 68), although it is probable that some
of these examples only date from post classical times 69).
(V) Because of their simplicitas soldiers are favoured in
that their error is more frequently excused than that of
others. Of course that does not mean that their ignorance of
fact or of law is always excused 70), but a growing indulgence
towards them is to be observed in the development of Roman
law. This tendency is more especially noticeable with regard
to testamentary succession. In the first place they are freed
from the dispositions concerning the making of a will: ut
quomodo testati fuissent, rata esset eorum voluntas 71). Then
again they are excused if they act in ignorance of the rules
concerning bonorum possessio or of the dispositions of the Lex
Cornelia72). We have here special constitutions giving them
these benefits. The same applies to the spatium deliberandi
conferred on all by Justinian 73) following a special disposi-
tion of Gordianus concerning soldiers, which again is pro-
bably based on a ruling going back to Hadrian 74). In this
way the tendency was to excuse ignorance of soldiers (of fact
or of law) in numerous cases.
(6) Like every legal system, Roman law recognised the
maxim that ignorance of law is basically no excuse. However,
this rule was not always adhered to and we get numerous
exceptions going back to an early period of the law. It would
appear furthermore that in these exceptional cases where
ignorance of law was excused the classical law excused igno-
rance of law in certain cases where iustus error would serve
67) Cf. C. 1. 18. 11; C. Th. 4. 14. 1.
68) D. 2. 13. 1. 5; D. 48. 5. 39. 4; C. 1. 18. 2.
6) D. 48. 5. 39. 7, cf. Guarino, op. cit. p. 30.
70) Cf. C. Th. 4. 14. 1.
71) D. 29. 1. 1. pr.
7) C. 2. 50. 1; C. 9. 23. 5.
73) Cf. C. 6. 30. 22. pr.
74) Inst. Iust. 2. 19. 6.
[31] IGNORANTIA IURIS

as an excuse - that is to say that in certain cases (usucapio,

bonorum possessio) no difference was made between iustus
error iuris and iustus error facti. In some cases, without
having regard for the error being iustus or not, error even of
law could serve as an excuse. We have here the case that the
law shows indulgence towards certain persons and this ten-
dency was more particularly stressed in post-classical times.
We have seen this where the woman, the peasant, the adoles-
cens and the soldier make mistakes. This does not mean that
they were excused in every case where they made mistakes.
This excuse was admissable in the case of incest (women),
donatio proter nuptias (women and the adolescens; cf.
C.5.5.4), rules of testamentary succession (the soldier),
editio actionis (women, peasants and adolescentes), Sc. Sila-
nianum (peasants) and the actio de albo corrupto (the peas-
ant). Furthermore, in some cases where good faith is the
essential requirement, ignorance of law is also excused. A
special case may be mentioned here, namely of the iudex who
makes a mistake. Where an error is made, whether of law
or fact, the party who suffers as result thereof is assisted.
In fact the iudex may be wholly bona fide. We have here
a ruling going back to classical times 75). Also, we find in
some texts that mention is made of the ius gentium where
erroriuris is excused. No doubt this is frequently due to post-
classical additions, but, nevertheless, it fits in with Roman
legal thought where our rule is founded on an idea of law
being ius naturale which is necessarily known to everyone.
Thus we see that in actual practice our rule was never wholly
retained but many practical exceptions were made upon it.
The question remains whether the Romans recognised any
standard by which it was possible to lay down when our rule
was to be retained and when it was to be set aside wholly
or in part. It would appear that the Romans recognised no

75) Cf. D. 24. 3. 17. 2, for the classical law. D. 21. 2. 51. pr. is
interpolated but on this specific point gives, no doubt, the classical
law. Of a later period we have D. 49. 1. 19, Inst. Iust. 4. 5. pr. Cf. C.
Th. 2. 11 concerning the advocate who does not know his law.
32 P. VAN WARMELO [32]
fixed criterion. Indeed, in Roman law as well as in modern
law, each rule must be examined separately and the law has
to decide whether ignorance will be excused or not. With
regard to a particular rule, ignorance is more likely to be
excused where the wish of the individual is of the first impor-
tance. Where the interests of the community as a whole is the
main object of the rule, then ignorance is not likely to be
excused. Furthermore ignorance, where it may be excused,
will be more likely to be excused where the error is made in
good faith and with good reason. In these cases the law will
lay down that ignorance may serve as an excuse - but only
when the law Jays down that such an exception is permissable.