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Action and Value in Criminal Law$
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Stephen Shute, John Gardner, and Jeremy Horder

Print publication date: 1993

Print ISBN-13: 9780198258063

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198258063.001.0001

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Culpability and Mistake of Law

Culpability and Mistake of Law

Chapter:
(p.156) (p.157) Culpability and Mistake of Law
Source:
Action and Value in Criminal Law
Author(s):

HUSAK DOUGLAS

ANDREW VON HIRSCH

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198258063.003.0007

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.

Keywords:   ignorance, equal-treatment doctrine, mistakes of law, culpability, defendants

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