Jump to ContentJump to Main Navigation
Action and Value in Criminal Law$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 April 2021

Culpability and Mistake of Law

Culpability and Mistake of Law

(p.156) (p.157) Culpability and Mistake of Law
Action and Value in Criminal Law



Oxford University Press

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

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .