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The Philosophy of Criminal LawSelected Essays$
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Douglas Husak

Print publication date: 2010

Print ISBN-13: 9780199585038

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199585038.001.0001

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Mistake of Law and Culpability *

Mistake of Law and Culpability *

(p.257) 10 Mistake of Law and Culpability*
The Philosophy of Criminal Law

Douglas Husak (Contributor Webpage)

Oxford University Press

This chapter examines how retributivists should decide whether and to what extent a person should be punished for committing a criminal offense when he is ignorant of the law he violates. It contends that no solution is possible without a fundamental rethinking of the content of substantive offenses. Progress might be made on this issue if we model a theory of culpability and mistake of law after the familiar theory of culpability and mistake of fact. This model helps us to appreciate that different mistakes may involve various levels of culpability about different material elements of offenses and thus need not all be treated in the same way.

Keywords:   culpability, retributivism, facts, statutes, mens rea, elements, desert, punishment

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