TOPIC:

DEFENCE OF MISTAKE OF FACT/LAW AND ITS INTERFACE WITH MENS REA

AND MITIGATION
INTRODUCTION

The law and practice of the administration of criminal justice everywhere in the civilized
world is one of the most characteristic features of the historic development and the socio-
economic and political milieu of a nation. The law and the practice of criminal justice of a
particular country therefore reflects the political conditions and of the ideas prevailing in that
country during the time period that the law was in force.

In this paper I have reviewed Gunther Arzt’s paper titled “Ignorance or Mistake of Law”
which has traced the historical development of the concept of ‘error iuris’, synonymous with
mistake or ignorance of law. Germany, a nation that was at the core of the two most
devastating wars that this world has ever seen, also experienced the conflict that arises in
administering justice in times when the laws did not follow a steady pattern. The confusion in
differentiating ignorance or mistake of law from mistake of facts was one of the problem that
the old and new Federal Supreme Court dealt with very differently.

The word ignorance comes from Latin words ‘in’ meaning ‘not’ and ‘gnarus’ meaning
‘knowing’. Ignorance, therefore, means a lack of knowing and knowledge about something in
a person who is capable of knowing. Since acts which are voluntary as well as free are
imputable in nature, any ignorance which reduces or removes the voluntary aspect of any act
changes the original definition of the word ‘ignorance’ to instead mean a lack of knowledge
that the person committing or omitting an act is required to have. Human ignorance can be
categorized into three types: (i) that of law, that is, unawareness of the existence of it in the
first place or that some particular case falls under its provisions;(ii) that of fact, that is, when
there is insufficiency in the knowledge not of law but of something in that particular
situation; and(iii) that of penalty, under which the person does not know about the sanction
attached to a crime.Although the third type is not as important as the first two, it can be of
significance when the punishment is serious.

The ignorance-of-the-law is a rule that traces its lineage back to the Roman law. Roman law,
however, had differentiated between “ignorance as a defense to actions under the jus
gentium, the law derived from the common customs of the Italian tribes and thought to
embody the basic rules of conduct any civilized person would deduce from proper reasoning,
to which a mistake of law defense could not be raised, and the more compendious and less
common-sense jus civile, as to which women, males less than 25 years old, soldiers, peasants,
and persons of small intelligence could raise a mistake defense if he or she had not had the
opportunity to consult counsel familiar with the laws.”1

Section 16 and 17 of the German Penal Code lay out the law on mistake of fact and law
respectively. Section 16 states that: “(1) Whosoever at the time of the commission of the
offence is unaware of a fact which is a statutory element of the offence shall be deemed to
lack intention. Any liability for negligence remains unaffected. (2) Whosoever at the time of
commission of the offence mistakenly assumes the existence of facts which would satisfy the
elements of a more lenient provision, may only be punished for the intentional commission of
the offence under the more lenient provision.” Section 17: “If at the time of the commission
of the offence the offender lacks the awareness that he is acting unlawfully, he shall be
deemed to have acted without guilt if the mistake was unavoidable. If the mistake was
avoidable, the sentence may be mitigated pursuant to section 49(1).”

1
A. Cass, Ignorance of the Law: A Maxim Reexamined, 17 WM. & MARY L. REV. 671, 685 (1976).
ANALYSIS

The article begins with the introduction of the concept of error iuris in the German Penal
Code. This is enshrined in Section 17 of the German Penal Code which says:

“If the perpetrator, at the time of the criminal conduct, lacks consciousness of wrongdoing, he
acts without guilt (Schuld) if his error was invincible (nichtvermeiden). In case of vincible
(vermeiden) error, the punishment can be mitigated according to section 49(1).”

Error iuris is synonymous with error of law or mistake of law. Further, section 49(1)
provides for the extent of mitigation that is allowed in cases where the law allows for the
mitigation to be done. It allows for a sentence of imprisonment for no less than three years
where life imprisonment was the original sentence that would have been given; for
imprisonment of fixed term, it can be reduced to no more than three quarters of the statutory
maximum term; and in cases of statutory minimum terms, ten years is reduced to two, three-
two years to six months, on year to three months, and in all other cases to the statutory
minimum.

As the author mentions, the difference between vincible and invincible error is understood
from the canon laws in which the former is within a person’s control and hence the person
cannot escape responsibility.

Since the concept of vincible and invincible error is derived from canon law, it is first
important to understand the theological stance on ignorance. Moral theology defines the
concept of ignorance as the lack of some knowledge that a person in a given situation ought
to have. This is different from ‘nescience’ which means the lack of knowledge that is not
important to a person in a given situation or, simply, knowledge that he does not need to
have.2 For example not knowing the square root of 1429 would amount to ignorance if the
person were giving a test of mathematics, but would be nescient if he were doing physical
labour that did not require the number.

There are two divisions of ignorance, vincible and invincible. They are differentiated on the
basis of ‘reasonable diligence’ that is needed to be applied in a situation to remove ignorance.
Reasonable diligence is determined by the gravity of the situation, and by the resources
available to obtain the necessary information. The resources that are available include the
ease of obtaining information and the judgement capacity to make an accurate decision once
2
Mullady, Brian. “The Virtue of Prudence and the Primacy of Conscience.” Angelicum, vol. 92, no. 3, 2015, pp.
425–446. JSTOR, www.jstor.org/stable/26392519. Accessed 12 Sept. 2020.
that information is in his possession. The increase in the gravity of the situation and the
increase in the resources available, increase the diligence requirement to qualify as
reasonable. There is also a possibility of showing excessive or scrupulous diligence just as it
is to show less than required diligence. Therefore, depending upon the type of ignorance and
the degree as well, it can remove, diminish, leave unaffected, or in some cases even increase
a person’s culpability. In case of an omission or commission of an act out of invincible
ignorance, culpability of the person is removed. In case of vincible ignorance, there can be
three degrees: insufficient diligence amounts to ‘merely’ vincible, little or no diligence
amounts to ‘crass’ or ‘supine’ ignorance, and deliberate ignorance amounts to ‘affected’ or
‘studied’ ignorance. The first degree can reduce culpability, even remove it; the second
degree may remove little or no culpability; the third degree can increase the culpability.

The common course of practice follows that ignorance of moral laws cannot be presumed but
there can be confusion on whether an act is required by natural law. The confusion may be
plausible especially in cases where the point is not obvious, or if the person is not quick
enough in his mental capacity to understand it, or if he is raised in a milieu that sternly denies
the point. But, such ignorance must always be proven.

Invincible ignorance is a valid excuse, whether it is of law or of fact, since neither the state
nor the act resulting from it is voluntary in nature (absence of mens rea). Vincible ignorance
on the other hand, is voluntary in some sense and cannot be used to escape responsibility and
is measured by the degree of negligence that happens to be discernible in the act.

Further in the paper, Arzt immediately begins with the historical development of the concept
of error iuris that had been incorporated in the German Code after decades of arguments
between various schools of thought as well as by the step-by-step approach in the courts.

Historically, the original rule was “Unkenntnis des Gesetzesvor Strafe nicht” meaning
“ignorance of law is no excuse” which was adhered to even under the German Penal Code
when it was enacted in 1871. The rationale behind the original rule was not to deny the
defense of error iurisbut to clarify that not knowing the prohibitions that the criminal law put
were beyond conceivability since every normal citizen is aware of it and any offense
committed under the StGB (the German Penal Code) must be done in full awareness. And
therefore, error iuris must be because of insanity. This became the legal test of what
constitutes insanity. The term “moral insanity” included recognition of error iuris as separate
from the “normal insanity” and was replaced by “blindness for the law” (Rechtsblindheit) or
“enmity towards the law” (Rechtsfeindschaft).

The development of the concept of error iuris was furthered by the rising distinction between
error in case of criminal law (error iuriscriminalis) and error in case of civil law (error
iuriscivilis). The former was not a valid defense on the same reasoning as above that a sane
person would be aware of it. The latter, however, constituted a valid defense. The difference
between the two is elaborated by an example in the paper- “Thou shalt not steal” would be
inconceivable but if the defendant took a property that was not his believing it to be his was
conceivable as a “mistake of fact” or “mistake of private law”. The discrepancy lied in the
fact that if one was to go by the error iuriscriminalisdoctrine, then it would not matter
whether the person took the property out of poor eyesight or poor knowledge of requirements
in private law to transfer the title of the property to himself. He would be culpable. But either
way, he would lack mens rea to steal.

By the year 1910, mistake of criminal law was well distinguished from mistake of fact as
well as mistake with regards to all other types of law. Except in a case of a complete lack of
knowledge of existence of law, the act was easily explained as mistake of some other law like
civil law or public law other than criminal law using the assumption that there was some non-
existing justification for the done violation of criminal law in the other law. Example is given
of a person prank calling and threatening someone which can be erroneously justified as the
person believing he had the right under private or public law that he could punish the person
he called and threatened for some previous act.

German law is contrasted with Anglo-American law in that a crime that has intent as the
necessary element, mistake of fact however unreasonable precludes convictions, unless there
is a clause that expressly punishes negligent behaviour.

The importance of separating normative aspects of the laws from factual aspects was felt as
the difference made the act either a factual or legal error. For example: “Rabbits are
considered ‘game’, and it is illegal to hunt ‘game’ without a license (Section 292 of StGB).
Someone who does not know that rabbits are ‘game’ and shoots one is a poacher. If he knows
that it is illegal to hunt ‘game’ without a license it is difficult to tell whether his mistake is
one of criminal law or of fact.” It is especially in the case of obscenity cases (as in the cases
of concept of art) that such entanglement is found. The Reichsgericht (Reich Court of Justice,
the supreme criminal and civil court in the German Reich from 1879 to 1945) struggled with
it but when Bundesgerichtshof (The Federal Court of Justice (BGH); It is the supreme
court (court of last resort) in all matters of criminal and private law. A decision handed down
by the BGH can be reversed only by the Federal Constitutional Court of Germany in the rare
cases that the Constitutional Court rules on constitutionality) succeeded it, it saw it in
retrospect.

The next level of development was related to social offences related to error iuris that
brought out to front the obvious differences between the American and German laws. World
War I led to Germany using numerous criminal sanctions. “Problems of distributing scarce
goods made governmental economic planning necessary and enforcement by criminal
sanctions convenient.” The sudden increase in criminal prohibitions were obviously unknown
to all in their entirety and therefore the Reichsgerichtlimited the use of the doctrine of error
iurisnocet to traditional criminal laws only. The “new” law was not incorporated in the Penal
Code and was instead included into various statutes of laws other than criminal law
(Nebenstrafrecht) that accepted the mistake of law as a valid defense. The German courts
therefore, only used the doctrine in cases where knowledge of the law could be taken for
granted.

Artz found that: “As the increasing use of criminal sanctions made error iuris more likely,
error iurisas a defense became more reasonable; yet this very fact strengthened the doctrine
that error iuriswas no defense.”3 The understanding that prevailed was that since the German
legality principle required a prosecutor to prosecute as according to Section 152 of stop,
therefore where “reasonable error iuris” would be felt, the defendant would not be charged.
Artz does not accept this explanation since there the principle of strict liability did exist.
There was also the issue of rule-skepticism. Artz agrees that judges are after all humans and
are subject to humane temperaments, and as the fear went around in the of people, therefore it
was also possible that a defendant’s claim of no knowledge would be dismissed if the judge
felt that that his own authority was being undermined. However, Artz argues that rule-
skepticism can actually work with the defense of error iurisas the burden of uncertainty in
legal rules cannot be completely put on the defendant.

Error iuris was recognised as defense for almost three decades except in the cases of
traditional crimes. The next stage of development came with Bundesgerichtshofin 1952 and
the rule was embodied in the German Penal Code.
3
Arzt, Gunther. “Ignorance or Mistake of Law.” The American Journal of Comparative Law, vol.
24, no. 4, 1976, pp. 646–679. JSTOR, www.jstor.org/stable/839579. Accessed 12 Sept. 2020.
Reichsgerichthad prior to the departure made by its successor had admitted the defense in the
following cases:

1. The Equal Treatment Doctrine:Mistake of law and fact were treated the same. The
avoidability and unreasonableness of the mistake, whether of fact or law, was immaterial and
the conviction was only on grounds of negligent behaviour.

The Human Action theories related to intent and guilt were also present and the court stuck
with the latter. There was believed to be a “determining” capacity of the human behaviour
therefore “knowledge of the law and culpable lack of legal knowledge [became] separate
elements within the concept of guilt whereas intent and negligence [became] separate
elements of the actus reus (Tatbestand). This theory sees error iuris as a problem not of
intent but of guilt.”

The practical implications of the theories were difficult due to the problem of proving intent
beyond doubt. Also, the social context of using this principle was dire since after the WWII
courts were dealing with murder cases like the extermination of Jews or of patients in the
mental institutions under the Nazi commands who claimed to being unaware that they had
acted against the law.

Some scholars dismissed the evidence problem while some proposed to fill the loophole by
extending the negligence clause in more laws. Another proposition was to create a new
crime: “negligent failure to know the criminal law (Rechtsfahrlassigkeit).”

2. Discrimination AgainstError Iuris: Criticism of equal treatment doctrine was grounded on

the alleged impracticability of proving error iuris as compared to mistake of fact. What
followed was the understanding that there should be a higher standard of excusing a person
with no consciousness of wrongdoing than one with lack of factual knowledge. Vincible error
iuris became a mitigating circumstance.

The Landmark Decision of 1952, a decision by Bundesgerichtshof, became famous as the

Federal Supreme Court laid down the principle of error iuris as a defense in traditional
criminal law. The case included an attorney pressurising his client to pay the unpaid fee.
There was comparison of criminal duress and extortion. The attorney claimed his actions to
be tolerable and not illegal. No German lawyer prior to that had been allowed to use that kind
of pressure on a client. At the time of decision there was no criticism. The court had rejected
the intent theory and the use of guilt theory replaced the difference between mistake of fact
and error iuris with a new distinction between Tatbestandsirrtum (mistake as to elements of
the actus reus excluding intent) and Verbotsirrtum (mistaken belief in legality of the activity
so there is absence of consciousness of wrongdoing). From this point, the latter concept
becomes the concept of error iuris.

After 1952, when the restricted guilt theory became dominant, following four trends
emerged:

1. The Reichsgericht, before WWI, had insurmountable difficulties in drawing a line between
error iuriscivilis and error iuriscriminalis. The Bundesgerichtschof after WWII had severe
difficulties in distinguishing error iuris from a mistake of facts.

2. The archetypal error iurisdefense hardly occurred in traditional criminal law.

3. The error iurisdefense was frequently merged with and hidden under a denial by the
defendant that he was negligent. This was especially in cases of white collar crimes and
social welfare offenses.

4. Use of error iuris is rare but when they do, they do so in four settings: reliance on official
or semi-official legal information which proved to be wrong; reliance on legal provisions of
some other jurisdiction; reliance on the moral judgement of a minority of the population;
other settings found in a few miscellaneous cases which do not fit the previous three
categories.

Artz elaborates the four concept with cases that occurred with the unstable social and political
air Germany. As people migrated and laws constantly changed with the nation trying to
recover from the wars, resulted in a huge confusion of the laws and often the courts would
end up comparing the different laws of the other regions to reach a coherent decision that was
not blind to the plight that the people themselves were facing.

Artz has ended his paper in an open question with no answer. He successfully establishes that
ignorance of law is an important defense and given the contexts of history along which it has
been drawn, but not all the problems related to it have been solved. He insists that ignorance
of law as a defense should not be contested and asks the reader to find a way on how we
should be using it.
CONCLUSION

Germany developed a very refined machinery of criminal procedure, built up to punish

relentlessly all acts of violation of the laws. A numerous body of public attorneys exist,
subject to the control of the government and law. The outcome of this system had been, as
statistics show, that the total convictions in Germany surpassed by three fold those of
England. The trials were inquisitorial and the prisoner did not have the right of a free man
presumed to be innocent earlier. However, the German laws have now taken a modern turn
and the ideas of prevention and reformation have gained grounds.

Germany, like all other democratic countries, was influenced by the American systems and
ideas regarding the laws, but due to the differences in the economic and political conditions,
the influence was not much. Hartmann compared German criminal laws to the deity Janus.
He wrote: “… like the deity Janus, having two faces, the one looking backward to former
times, the other looking forward to the light of modem ideas. Customs and traditions coming
down from centuries ago tell on public opinion very much; political parties of different kinds
find themselves especially interested in maintaining the historical principles of the strictest
state of the past-the state of discipline, of relentless retribution and of inquisitorial trial.”4

The first and the oldest justification that is given for the ignorance or mistake of the law that
it cannot be an excuse for every person is presumed to know the law since people generally
know what the law forbids in whatever jurisdiction they live in. Even when they don’t, to
acquire the knowledge is not a difficult task. Therefore, anyone who fails to acquire the same
is guilty of negligence. And as Meese and Larkin put it: “this presumption has the virtue of
being simple and straightforward, and it was reasonable in Blackstone’s days, when the penal
code was small and reflected community mores. The problem is that this principle is no
longer a sensible one, at least not when considered as an across-the-board rule.”5

With the strict following of the doctrine of mens rea, criminal law was fairly confined but
with increase in the laws with the offences extending even up to social offences which
usually had terms that had only an interpretive and contextual meaning like “obscenity”, the

4
Adolf Hartmann, Reform of the Criminal Law in Germany, 2 J. Am. Inst. Crim. L. & Criminology 349 (May 1911
to March 1912)
5
Edwin Meese III and Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. &
Criminology 725 (2013). https://scholarlycommons.law.northwestern.edu/jclc/vol102/iss3/7
presumption that every person knew every law and was aware of every law he broke became
inconceivable.

But accepting ignorance of law as an excuse gives rise to another whole set of problems. The
loopholes in the defense are highly likely to be misused. For example in the cases of
deliberate ignorance where the defendant maintains his innocence even though there are deep
indications that he might be consciously involved. An obvious solution to this, that is creating
a provision that punishes deliberate ignorance is synonymous with the “negligent failure to
know the criminal law (Rechtsfahrlassigkeit)”6 proposition which Gunther Artz already
deconstructed in his paper and pointed out the flaws.

Arthur Artz, in his paper has tried to navigate the problems that existed in interpreting the
mistake or ignorance of law that caused various loopholes to emerge in the judiciary system.
He concludes with the idea that it is not that ignorance of law should not be accepted as a
defense but that it must be because law is ever changing and rigid guidelines do not prove
beneficiary. He however, only raises the question as to how we must go about it and provides
no answer.

6
Arzt, Gunther. “Ignorance or Mistake of Law.” The American Journal of Comparative Law, vol.
24, no. 4, 1976, pp. 646–679. JSTOR, www.jstor.org/stable/839579. Accessed 12 Sept. 2020.
REFERENCES

1. Adolf Hartmann, Reform of the Criminal Law in Germany, 2 J. Am. Inst. Crim. L. &
Criminology 349 (May 1911 to March 1912)
2. Edwin Meese III and Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense,
102 J. Crim. L. & Criminology 725 (2013).
https://scholarlycommons.law.northwestern.edu/jclc/vol102/iss3/7
3. Mullady, Brian. “The Virtue of Prudence and the Primacy of Conscience.”
Angelicum, vol. 92, no. 3, 2015, pp. 425–446. JSTOR,
www.jstor.org/stable/26392519. Accessed 12 Sept. 2020.
4. Finnegan, Robert Emmett. “Eve and ‘Vincible Ignorance’ in Genesis B.” Texas
Studies in Literature and Language, vol. 18, no. 2, 1976, pp. 329–339. JSTOR,
www.jstor.org/stable/40754444. Accessed 12 Sept. 2020.
5. Ira P. Robbins, “The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens
Rea”, 81 J. Crim. L. & Criminology 191 (1990-1991)
6. Kenneth W. Simons, “Mistake and Impossibility, Law and Fact, and Culpability: A
Speculative Essay”, 81 J. Crim. L. & Criminology 447 (1990-1991)
7. Alice Ristroph, The Thin Blue Line from Crime to Punishment, 108 J. CRIM. L. &
CRIMINOLOGY 305 (2018).
https://scholarlycommons.law.northwestern.edu/jclc/vol108/iss2/3
8. William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The
Return of the Victim, in VICTIMS IN CRIMINAL PROCEDURE 5–6, 11–12 (3d ed.
2010); FRIEDMAN, supra note 24, at 28.
9. WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE
65 (2011); Blue, supra note 24, at 1484.
DEFENCE OF MISTAKE OF FACT/LAW AND ITS INTERFACE WITH MENS REA
AND MITIGATION

1. LINK BETWEEN MORAL INSANITY AND ERROR IURIS

During the German Reich when German Penal Code was enacted in 1871ignorance of
law was no excuse (“Unkenntnis des Gesetzesschütztvor Strafenicht”).

Laws related to strict liability existed during the Reich period (1871-1945).

Every normal person was presumed to be aware of the prohibitions. Absence of capacity to
discern right from wrong became the legal test of insanity.

Moral insanity {or ‘blindness for the law’ or ‘enmity towards the law’}, however,
acknowledged the existence of error iuris outside ‘normal insanity’.

2. By 1910

INVALID DEFENSE VALID DEFENSE

Mistake of Criminal Law Mistake of any other law
Mistake of fact
Mistake of criminal law is not accepted as a defensebecause error iuris injures the plaintiff
and so the defendant should not be permitted to use it as a defense. Lack of mens rea allowed
the mistake of laws other than criminal and mistake of fact to be taken as a defense in the
court.

The problem that arose was that there were major difficulties in differentiating in cases other
than those that involved a total lack of knowledge that the act was prohibited. Every other
mistake could be phrased as either a mistake of for example civil law or public law or that the
defendant believed that private law provided for some non-existent justification for the
violation of the criminal law.

For example, A person who punished another person's child for some prank would phrase his
defense, not in terms of failure to know the criminal law of assault and battery, but in terms
of erroneously(incorrectly) assuming private or public law granted him and any other
passerby authority to punish the child under those circumstances. German law earlier
provided for authority to punish a child. (Corporal punishment was banned in 2000).

Hence, A lot of the decisions were made according to the judge’s sense of justice rather than
by a clear binding rule of error iuris.

During the World War I there was a great increase in the use of criminal sanctions in
Germnay. Problems of distributing scarce goods made governmental economic planning
necessary and enforcement by criminal sanctions convenient. The Reichsgericht's reaction to
this development was in accordance with the rationale underlying its rule of error iuris. Now
it was totally unrealistic to assume that every sane citizen would be familiar with the new,
rapidly-expanding crimi- nal prohibitions. Therefore the Court, in effect, limited the error
iurisnocet doctrine to the cases of traditional criminal law. The "new" criminal law was not
incorpo- rated in the Penal Code. Rather it was set forth in numerous separate statutes outside
the criminal law (Nebenstrafrecht) dealing with specific problems such as distribution of
goods and price control. In Nebenstrafrecht(such) proceedings, the Court actually allowed a
defend- ant's mistake with respect to this type of criminal law as a valid defense.

Difficulties in drawing a clear line between error iuris and other mistakes became manifest in
cases where the defendant's mistake concerned normative elements of his crime.

An obscenity case illustrates this trend, though it was decided before the recent narrow- ing
of the statutory language on obscenity. In essence, the statutory prohibition was changed
from a broad prohibition of all "indecent" material to a narrow prohibition of "pornographic
material.

3. THEORY OF INTENT VS THEORY OF GUILT (case against strict liability)

INTENT GUILT
Knowledge of the factual components of a This theory leads to a distinction in
crime and knowledge of the legal treatment of error iuris and mistake of fact.
prohibition as such are equal elements It is closely related to a goal-oriented theory
within the concepts of intent or negligence. of human behavior. Here the essence of
Without knowl- edge of the legal human behavior is supposedly the capacity
prohibition there is no consciousness of to set goals and utilize knowledge of laws of
wrongdoing. Error iuris, as well as mistake cause and effect in order to select means to
of fact, pre- cludes criminal intent. achieve them. Thus intent becomes
According to this theory an overt act, viz., equivalent to this specific human
causation of the harm, is the essence of the "determining" capacity.
prohibited factual matters ; intent or As a result, knowledge of the legal
negligence, on the other hand, are prohibition is expelled from the concept of
considered the main elements of guilt. This intent as well as from the concept of
leads to equal treatment of error iuris and negligence. According to this theory, all
mistake of fact. human behavior is characterized by this
"determining" capacity, so negligence be-
comes failure to select among causal factors
with proper care to prevent unintended
harms.
Intent and negligence become separate
elements of the actus reus.
This theory sees error iuris as a problem not
of intent but of guilt. This makes it possible
to distinguish between errors concerning
elements within the sphere of actus reus
(Tatbestand), including intent, and errors
In- tent serves as a warning to the affecting con- sciousness of wrongdoing,
perpetrator that his intended act might be which are within the sphere of guilt.
unlawful (Warnfunktion des The primary achievement of the
Tatbestandsvorsatzes).31 In contrast to Schuldtheorie lies precisely in its theoretical
mistake of fact, which excludes intent, in justification for treating error iuris as a
mistake of law the defendant has a specific weaker defensethan mistake of fact.
reason for checking carefully what he is
about to do, namely his knowledge that he is
about to harm the life, property, or freedom
of another being, actions which generally
are prohibited. [If one were to follow this
line of reasoning strictly to its logical
conclusion, it would be difficult to
distinguish between the man who punishes a
child for a prank in the mistaken belief
thatthe law per- mits this (a case of error
iuris) from the man who misjudges a fac-
tual situation in believing an "assailant" is
threatening his life, and injuries or kills him.
Both would be acting with intent since both
Therefore, a strict theory of guilt would treat
knew they would injure another person.
both cases alike, according to the rule of
error iuris: each man would have reason to
investigate carefully whether, in his case,
there was really an exception from the rule
that injuring another person is normally
socially undesirable.

If knowledge of the law is treated like factual knowledge, as in the theory of intent
(Vorsatztheorie), then there is an evidence problem. In traditional criminal law, usually only
intentional transgressions were punishable; punishment for negligence was not only barred
but undesirable. also it was difficult to prove beyond a reasonable doubt that the defend- ant
was conscious of wrongdoing.

The social context of this legal problem in Germany is important. There may not be too much
at stake if a distributor of obscene materials goes unpunished because the state failed to prove
the defendant knew the material was lewd to the degree necessary to make it "obscene." The
German courts were however faced with the issue of error iuris in many a murder case after
World War II. The defendants in these cases claimed belief that extermination of Jews or of
patients in mental institutions, or reprisal killings during the war and the like, were justified
by laws or Nazi commands. Defendants thus were dis- claiming knowledge of having acted
against the law.

Negligent error iuris:

no one would be liable under the proposed section unless he commit- ted a specific act
because the idea was not intended to test the population on knowledge of criminal law and
identify and punish those who failed the test. Indeed such a position is scarcely conceiva- ble.
Despite these obvious shortcomings however, such a construction would not have been
completely alien to German law.Intoxication is a defense in German law. If the perpetrator
did not in fact realize what he was doing because of drunkenness, as is often the case, there is
no criminal intent, no mens rea. Instead of complete acquittal, however, in most cases the
defendant will be convicted for the crime of putting himself intentionally or negligently into a
state of intoxica- tion which excluded criminal liability. From murderer to poacher, everyone
who commits crimes while intoxicated will be charged with the same offense: drunkenness.
This condition is not punishable alone, but only if it leads to a crime for which the defendant
cannot be held responsible because of his intoxication. The parallels between this existing
crime of drunkenness and the proposed crime of negligent failure to know the law are
obvious

By adopting the guilt theoryin the 1952 decision the Supreme Court replaced the
Reichsgericht'searlier dis- tinction between mistake of fact and error iuris with a new distinc-
tion between Tatbestandsirrtum and Verbotsirrtum. Tatbestandsirrt- um is mistake as to
elements of the actus reus(which excludes intent). Since the actus reus often is described in
normative terms, as in the term "indecent" for example, Tatbestandsirrtum need not be factual
error, but may be normative error. Verbotsirrtum meansand mistaken belief in legality of the
activity so there is absence of consciousness of wrongdoing.

The Bundesgerichtshof did not follow the strict theory of guilt, but rather decided these cases
according to the principles of the theory of intent. In other words the court treated error iuris
(in the form of erroneous assumption of facts justifying the defendant's actions under existing
legal rules) the same as mistake of fact. This is a grave departure from the strict theory of
guilt. Tradition certainly played a role here. Mistakes of fact, in the sense of assuming a
factual situation which would justify the criminal act, had been traditionally brought in on the
theory of mistake of fact, not of law.
The code commission while drafting the new Stgb had stated that: "The concept of guilt
is a living concept in people. Without it there cannot be a life directed to moral value
conceptions. Without moral value conceptions, however, human life is not possible."'
Therefore in countries that recognise strict liability, like England and the United States,
the considerable extension of the doctrine of strict liability is a threat to the rational
foundation of criminal liability-the same threat that prevailed to reduce penalty in
Hitler's Germany into a morally indifferent "security measure," and made millions of
innocent people "criminals."

4. ERROR IURIS IN LEGAL ADVICE (3 cases)

A case involved a theology student at the University of Gottingen. The defendant was
charged with theft after being caught leaving a local department store with a paperback book
for which he had not paid. His defense was that he just wanted to read the book and then
bring it back, and that this occurred to him after he had been talking to a friend who was a
law student. The law student had said that this would not constitute theft since theft, as
defined by German law, meant permanent expropriation of the owner's property. A short
unlawful use, said the law student, would be furtumusus, not theft, and furtumusus is
punishable only if automobiles or bicycles are taken. Howevr, The theology student was
convicted for theft and the High Court of Lower Saxony upheld his conviction. The court
argued as follows: First, the defendant did not merely want to use the book, but wanted to
take from the bookstore its specific value as a new book. The implication is that the
defendant's argument would have been valid if he had been caught under the same
circumstances in a used book store. Second, the court considered the defense irrelevant under
the error doctrine.

The court continued by observing that the defendant had not erred with respect to the
normative element of theft (expropriation) and his claim of error could not be interpreted as
lack of consciousness of wrongdoing, since he had known that his act was unlawful. Mere
belief that his act was not punishable does not protect him, since knowledge of punishability
is not required.

German courts almost always consider error iuris avoidable where the defendant took no
steps at all to inform himself concerning the legal situation. But reliance on reasonable
though erroneous information is the prime example in German case law of invincible error
iuris. In a sense, each of the three following subsections deals with reliance on information.
Defendants often claim reliance on official or semiofficial legal information which turns out
to be incorrect, at least in the opinion of the court deciding the case.

Reliance on advice that his actions are legal does not always protect a defendant against
punishment; this is especially likely where the information furnished indicates that the legal
question is in doubt.91 The courts, of course, soon had cases where the defendant "bought"
legal information from his attorney, in the form of legal advice, and relied on it. Moreover,
lawyers relied on their own opinions on the legality of their own actions;92 this occurred
fairly frequently, considering the overall rarity of error iurisdefenses. It was after all a lawyer
whose claim of error iuris precipitated the modern German error iuris doctrine.

A similar case involved a charge of perjury arising out of denazification proceedings.96 A

member of the Nazi party had been expelled from the party prior to the end of World War II.
After the war ended he knew he would have to answer the question whether he had ever been
a member of the Party. He went privately to a high court judge to see if he would be able to
answer the question in the negative. The judgewho told him what he had hoped: that the
revocation of membership in the party had retroactive effect (ex tune), so his legal status was
that of a nonmember of the party and he could, indeed, answer in the negative. The man did
so, and later was prosecuted for perjury. The court held that the question, in its exact
phrasing, meant to ask whether the man had ever had any connections or affiliations with the
party, not merely whether he had had the legal status of party member. Therefore the court
decided that it did not have to resolve the issue of reliance on the advice of a judge as a
defense.

5. IMMIGRANTS’ USE OF ERROR IURIS AND CONFLICTS BETWEEN MORAL

JUDGEMENTS

Before WWII, when the Reichsgericht was struggling with the differentiation bet mistake of
cr law and mistake of other laws as well as with the problem of numerous legislations, courts
restricted the t the error iurisnocet (error of law is no defense) doctrine to those parts of the
criminal law where knowledge could be taken for granted, not so much as knowledge of the
law itself but as knowledge of basic moral value. There were three major assumptions were: t
error iuris was more likely to occur in the "new" than in the traditional criminal law; if
criminal punishment implies blame, then it must be based on guilt, and a reasonable mistake
of law either excludes guilt or decreases the degree of guilt; t under the old criminal law it
was immoral to steal but not immoral, or less immoral, to exploit a scarcity of goods in time
of common need, an activity prohibited under the "new" criminal law.

There were two waves of immigration in Germany after WWII. Sometimes this special group
of refugees brought with them allegiance to different laws. s. Two cases involved sexual
intercourse between a man and his daughter-in-law. The defendants claimed that this was not
illegal in the jurisdiction where they had been brought up and lived. German law considered
it incest until the 1973 reform of laws relating to sexual offenses. In the first case,39 the
Bundesgerichtshof considered the defenseirrele- vant since the same act also constituted
adultery. Adultery was illegal in the defendant's native country as well as in Germany, thus
heknew that his act of intercourse violated the criminal law. This laid down a doctrine of the
indivisibility of knowledge of wrongdoing. The second case?00 overruled the first with
respect to the indivisibility doctrine and replaced it with a doctrine of consciousness of
specific harm, or specific knowledge of wrongdoing (spezifischesUnrechtsbe- wusstsein).
The new doctrine separated the harm of incest from the harm of adultery, since the two
crimes protect different legal interests.Therefore knowledge of wrongdoing in committing
adultery can and must be separated from knowledge of violating the prohibition against
incest. This view is generally accepted now. Reliance by refugees on the legal order of their
homeland thus brought about an important clarification in the legal theory of error.

r. Italian law e.g. allows homosex- ual acts between consenting adults. German law, before
the repeal of this section, considered such acts criminal offenses. It is likely that homosexual
acts occurred in Germany between consenting Italian guest workers who did not know of the
criminal prohibition, but no such case has been reported. Such conflicts are even more likely
in the field of petty offenses.

differences in moral judgments exist. Certain parents find nothing wrong with their
adolescent daughter having sexual intercourse with her fiance;102 a physician finds nothing
wrong with euthanasia or abortion; a Turkish guest worker finds nothing wrong with killing
his wife, caught with her lover; a storekeeper finds nothing wrong with distributing
pornographic books; a member of the Jehovah's Witness- es believes that the criminal law's
respect for minorities extends to the point that he may refuse a blood transfusion for his child
with impunity

e. Frequently the persons involved in these examples know that their moral judgment and the
viewpoint of the criminal law clash, so the technical issue of error iuris does not arise. Often
they know that their actions are prohibited by law. But there is a fluid borderline between
those who violate the criminal law in the name of some higher justice and those who believe
that their moral judgment is presently reflected in the criminal law, or will be if, as they
expect, it is interpreted properly

According to the intent theory, the question was, can the state prove beyond a reasonable
doubt that the defendant knew that what he was doing was wrong? The guilt theory has
replaced this with an easier one: can the state prove beyond a reasonable doubt that the
defendant could have had that knowledge if he had searched his conscience with the proper,
and very high, degree of care? It is much easier to answer "Yes" to the second question, and
convict. Without question this has been a major factor in the adoption of the guilt theory by
the courts. It is difficult to answer "Yes" to the former question, even if the judge is almost
certain that the defendant's claim that he did not know he was acting against the law is a
sham.

For almost three decades, German law recognized error iuris as a defense except in the field
of traditional crimes. With the Bundesgerichtshof (the Supreme Court of the new Federal
Republic) in 1952 the rule of error iuris was embodied in the new German Penal Code.