Deliberation, Responsibility, and Excusing Mistakes of Law
Jurisprudence, Vol. 6, No. 1, pp. 81-94 (2015)
14 Pages Posted: 18 Aug 2011 Last revised: 25 Feb 2022
Date Written: April 1, 2015
Abstract
In ‘Excusing Mistakes of Law’, Gideon Yaffe sets out to ‘vindicate’ the claim ‘that mistakes of law never excuse’ by ‘identifying the truth that is groped for but not grasped by those who assert that ignorance of law is no excuse’. Yaffe does not offer a defence of the claim that mistakes of law never excuse. That claim, Yaffe argues, is false. Yaffe’s article is, rather, an effort to assess what plausible thought might be behind the idea that mistakes of law often should not excuse. (Yaffe is interested in more than just the descriptive claim that in Anglo-American legal jurisdictions mistakes of law routinely do not, in fact, excuse.) More particularly, Yaffe is interested in what plausible normative justification there might be for this asymmetric pattern:
Asymmetry: False beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse.
Yaffe offers a complex argument in support of Asymmetry. This paper is organised around my reconstruction of Yaffe’s argument. I will argue that Yaffe’s argument does not succeed, but that his argument may provide a template for an argument that could succeed.
Keywords: mistake of fact, mistake of law, ignorance of law, Gideon Yaffe, deliberation, responsibility, criminal law
Suggested Citation: Suggested Citation