Abstract
Orthodox criminal law doctrine treats mistakes of law and mistakes of fact differently for purposes of both exculpation and inculpation. Kenneth Simons’ paper in general defends this orthodoxy. I have earlier criticized the criminal law’s attempt to distinguish mistakes of law from mistakes of fact, and I continue to maintain, in opposition to Simons, that the distinction is problematic.
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Notes
Simons (2009).
Alexander and Ferzan (2009).
Simons (2009, Manuscript, p. 3, lines 45–58).
See footnote 1.
See footnote 1.
Westen (2008, p. 535).
Alexander (1993).
Alexander (1993).
Simons (2009, Manuscript, p. 26). Westen now writes that he agrees with Simons and that the colorblind hunter’s mistake is one of law. (E-mail from P. Westen to K. Simons, dated May 16, 2008) Although the hunter’s mistake is an empirical one, Westen contends that the consequence is that the hunter does not understand the class of conduct that the state wishes to prevent by means of punishment. His empirical error causes him to be mistaken about the law.
Westen is surely correct that the colorblind hunter is mistaken about the law in this sense: he does not realize that the law forbids (or allows) hunting today. On the other hand, he does understand that the law forbids hunting when the red flag is flying and allows it when the green flag is flying. His mistake is not about that norm but about its extension, similar to the mistake made by one who knows that endangered species are legally protected but does not know that polar bears are endangered. For Westen, all of these mistakes are mistakes of law, including the mistake of one who does not know at which object the kadi is pointing. I, on the other hand, see no reason morally or legally to draw a line between understanding a legal norm and understanding its extension. Such a line does not track culpability and so seems to me to be purely stipulative. In any event, as the text immediately following reveals, Simons abandoned Westen’s distinction when the issue is “other law” mistakes.
Regina v. Smith (David), [1974] 2 Q. B. 354.
Kelsen (1961).
Idaho v. Fox, (Idaho 1993) 866 P. 2d 181.
Alexander (1993, pp. 49–50).
People v. Ryan, (NY 1993) 626 N. E. 2d 51.
References
Alexander, L. (1993). Inculpatory and exculpatory mistakes and the fact/law distinction: An essay in memory of Myke Bayles. Law and Philosophy, 12, 33. doi:10.1007/BF01000795.
Alexander, L. & Ferzan, K. (2009). (with contributions by Morse, S.). Crime and Culpability: A theory of criminal law.
Kelsen, H. (1961). General theory of law and state (A. Wedberg, Trans.). New York: Russell & Russell.
Simons, K. W. (2009). Mistake of fact or mistake of criminal law? Explaining and defending the distinction. Criminal Law and Philosophy, this issue. doi:10.1007/s11572-009-9071-z (Page references in the footnotes are to the online manuscript version of this article).
Westen, P. K. (2008). Impossibility attempts: A speculative thesis. Ohio State Journal of Criminal Law, 5, 523–565.
Cases
Idaho v. Fox, [Idaho 1993] 866 P. 2d 181.
People v. Ryan, [NY 1993) 626 N.E. 2d 51.
Regina v. Smith (David), [1974] 2 Q. B. 354.
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Alexander, L. Facts, Law, Exculpation, and Inculpation: Comments on Simons. Criminal Law, Philosophy 3, 241–245 (2009). https://doi.org/10.1007/s11572-009-9073-x
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DOI: https://doi.org/10.1007/s11572-009-9073-x