The ostrich and the fox
Let’s go back to something Albert Speer said in his mea culpa about his responsibility for Auschwitz. “From fear of discovering something which might have made me turn from my course, I had closed my eyes.”28 Speer’s formulation gets close to the heart of our problem.
Suppose for the sake of argument that Speer was not lying. Suppose that he really didn’t know about Auschwitz, because he had closed his eyes. In that case, we confront the question of what Speer would have done had he not closed his eyes. He might have turned from his course, he tells us, but would he have? If the answer is yes, then we mitigate our judgment of him, at least a little bit.29 If the answer is no, then we blame him more. Not only did he knowingly participate in genocide, but he prepared a coverup, a clever willful-ignorance defense, as well.That’s one reason why we can’t make up our minds about willful-ignorance excuses. They amount to counterfactual assertions that if the person had known, he would have changed his course. To which the response must be: Maybe so, maybe not. Maybe the person offering the excuse really is an ostrich, a moral weakling in self-inflicted denial that a terrible moral choice confronts him. In that case, willful ignorance seems not as bad as actual knowledge. But maybe the would-be ostrich is actually a fox - a grand schemer who fully intends to follow the path of wrongdoing, and who contrived his ignorance only as a liability-screening precaution, like a good getaway car. In that case, willful ignorance seems more culpable than knowledge, because it adds to knowledge an element of unrepentant calculation.
Ostrich or Fox? We may never know. Nor can we ever be sure whether the Ostrich would have turned from wrongdoing if she had only taken her head out of the sand to learn that it was wrongdoing. Would she or wouldn’t she? The excuse of willful ignorance functions precisely to make that question unanswerable.
of the commandments in the face of life on the edge of constant menace. A rigid textualism sometimes turns out to be the compassionate rabbi’s best tool for blunting the law’s harsh edges. As one contemporary rabbi explains, “God made no mistakes... If he left a loophole, he put it there to be used.” Clyde Haberman, Alon Shevut Journal: Thank the Lord for Loopholes: Sabbath Is Safe, N.Y. Times, December 19, 1994, at A4. Unsurprisingly, then, Jewish ethics do not condemn willful blindness. In fact, in some cases Jewish ethics encourage it. The law treats bastard children harshly, and so a good Jew should remain willfully blind to the circumstances of birth of a suspected bastard. Likewise, compassion suggests willfully blinding ourselves to circumstances that would void a contract on which an innocent person relies. (I owe these examples to my colleague, Professor Sherman Cohn.)
28 Speer, supra note 21, at 375-76.
29 We no longer hold him fully accountable for knowingly participating in genocide, just for knowingly participating in the murder of Hitler’s opponents, the planning of World War II, and twelve years of violent racism! If you’re Albert Speer, you take your mitigation where you can find it.
The question may be unanswerable even by the Ostrich herself. Speer says only that knowledge might have made him turn from his course, and in this observation he is keenly perceptive. Many of us who close our eyes actually have no idea what we would do if we had dared to leave them open. We like to think that if we really knew that our course was wrongful we would turn from it; but perhaps we lack the guts. Willful ignorance is a moral strategy for postponing the moment of truth, for sparing ourselves the test of our resolve. St. Augustine famously prayed to God to give him the strength to resist temptation, only not yet.[421] The Ostrich hopes to God that she has the strength to resist temptation - only she doesn’t want to find out yet.
It’s Augustine Lite, Augustine in a slightly more infantile form.The Fox, on the other hand, is a premeditating crook, a grand schemer who guards himself from knowledge only to prepare a defense of ignorance.[422] Our ambivalence about the willful-ignorance excuse reflects, at least in part, our inability to resolve a fuzzy stereoscopic image, the portrait of an Ostrich superimposed on the portrait of a Fox. Our intuitions run very differently depending on which image we have in mind, and, without thinking about matters carefully, we probably have both images in mind.
In fact, we have three images superimposed on each other, not just two. Alongside the Fox, we can imagine the weak-willed, unrighteous Ostrich who would have continued to do wrong even if she knew that that was what she was doing, and the stronger-willed, half-righteous Ostrich who shields herself from guilty knowledge, but would actually do the right thing if the shield were to fail.
At this point, let me venture a diagnosis of why we have so much difficulty deciding how blameworthy willful ignorance really is. The grandscheming Fox, who aims to do wrong and structures his own ignorance merely to prepare a defense, has the same level of culpability as any other willful wrongdoer - the highest level, in the Model Penal Code schema. The Unrighteous Ostrich, who doesn’t want to know she is doing wrong, but would do it even if she knew, seems precisely fitted for the common-law equation of willful ignorance with knowledge. By definition, her guilt is unchanged whether she knows or not, because her behavior would be unchanged. And the Half-Righteous Ostrich, who won’t do wrong if she knows, but would prefer not to know, is in a state of conscious avoidance of a substantial and unjustifiable risk of wrongdoing - precisely the Model Penal Code’s definition of recklessness.
In short, motivation makes a difference. Three different motivations correspond with three levels of blame. One is less blameworthy than knowledge, one is precisely as blameworthy as knowledge, and one is more blameworthy. Our moral intuitions aren’t contradictory after all. Instead, our puzzles arise because when we evaluate willful ignorance we have three distinct moral intuitions, depending on which inhabitant of the bestiary we call to mind.