Culpability and Mistake of Law
This chapter begins by examining whether any difference should exist between the treatment of factual and legal ignorance. To deal with this issue, it considers a hypothetical scheme which German commentators call the ‘equal-treatment doctrine’, according to which mistakes of law would be treated exactly like mistakes of fact. This doctrine is rejected on the ground that the culpability of the legally ignorant defendant can differ in important respects from that of the factually ignorant defendant. Next the chapter considers wherein their culpability may differ, examining successively the case of the person who could not reasonably have ascertained the legal rule, and the person who could have but failed to do so. To resolve these issues, a comprehensive and general theory of culpability is needed. However, there is no such theory, and thus there is little choice but to rely on intuitions about when defendants who differ in some respect are or are not equally culpable.
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