Moral Rightness and the Significance of Law: Why, How and When Mistake of Law Matters

University of Toronto Law Journal, Vol. 64, No. 1, pp. 26-63, 2014

28 Pages Posted: 28 Jun 2013 Last revised: 31 Mar 2016

Re'em Segev

Hebrew University of Jerusalem – Faculty of Law

Date Written: June 26, 2013

Abstract

The question of whether a mistake of law should negate or mitigate criminal liability is commonly considered to be pertinent to the culpability of the agent, often examined in light of the (epistemic) reasonableness of the mistake. I argue that this view disregards an important aspect of this question, namely whether a mistake of law affects the rightness of the action, particularly in light of the moral significance of the mistake. I argue that several plausible premises, regarding moral rightness under uncertainty, the nature of law and the moral significance of law, entail a positive answer to this question. Specifically, I consider this argument: (1) one (subjective) sense of moral rightness depends on the (epistemically justified) belief of the agent concerning a non-moral fact that is morally significant; (2) a law is (partly) a non-moral fact; (3) a legal fact might be morally significant; (4) therefore an action that is compatible with an applicable moral standard, in light of the mistaken (justified) belief of the agent concerning a morally significant law, is (subjectively) right or less wrongful; (5) the (subjective) moral rightness of an action counts against criminal liability for this action; (6) therefore an action that is compatible with the applicable moral standard, in light of the mistaken (epistemically justified) belief of the agent, counts against criminal liability for the action if the law is morally significant.

Keywords: Moral Rightness, Moral Significance, The Nature of Law, Criminal Liability, Mistake of Law

JEL Classification: K10, K14

Suggested Citation

Segev, Re'em, Moral Rightness and the Significance of Law: Why, How and When Mistake of Law Matters (June 26, 2013). University of Toronto Law Journal, Vol. 64, No. 1, pp. 26-63, 2014. Available at SSRN: https://ssrn.com/abstract=2285523

Re'em Segev (Contact Author)

Hebrew University of Jerusalem – Faculty of Law ( email )

Mount Scopus
Jerusalem, 91905
Israel

HOME PAGE: http://en.law.huji.ac.il/people/reem-segev

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