The Theory of Mistake of Law in National Criminal Law Systems

Abstract

This chapter contains a comparative law study of the approach to mistake of law in the common law systems of the United States of America and the United Kingdom and the civil law systems of Germany and France. It also includes an analysis of the defence of superior orders in these systems. The ICC Statute directly links the defences of mistake of law and superior orders. One of the requirements in Article 33 (superior orders) is that the subordinate has been unaware of the wrongfulness of the order. In the national systems under discussion too, the defence of superior orders is a specialis of mistake of law. The outcome of this comparative law study is that in the common law systems the principal ignorantia legis non excusat (mistake of law does not excuse) is applied nearly without exception. These systems seem to hold on strictly to the proverb ‘everyone is presumed to know the law’. In common law systems mistake of law is regarded as a failure-of-proof defence, negating the required intent. This may be explained by the fact that common law systems apply a so-called twofold structure of offences. Characterising mistake of law as a failure-of-proof defence has two undesirable implications. The perpetrator who can demonstrate he did not act with the required intent because he made a mistake of law will be exculpated even when his mistake was blameworthy. The perpetrator who cannot invoke mistake of law because his mistake does not negate the required intent may be punished even though his mistake was reasonable or unavoidable. The comparative law study reveals that American and English judges apply ad hoc solutions in order to avoid these undesirable outcomes. In this way the maxim ignorantia legis non excusat is being attenuated. In German law the approach towards mistake of law is much more balanced and well thought out. This may be explained on the basis of the fact that this system applies a threefold structure of offences.