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Univ. of San Diego School of Law

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Tuesday, August 14, 2012

Greenberg on Mistakes of Law

Greenberg markMark Greenberg (UCLA School of Law and Department of Philosophy) has posted How Mistakes Excuse: Genuine Desert, Moral Desert, and Legal Desert (Newsletter of the American Philosophical Association, Forthcoming) on SSRN. Here is the abstract:

Gideon Yaffe’s "Excusing Mistakes of Law" seeks to explain "the asymmetry between the excusing force of mistakes of fact and law." In this paper, I offer a competing explanation of the asymmetry and criticize Gideon's explanation. Behind some of the specific issues concerning mistake of fact and mistake of law lie more fundamental questions about the nature of law and about the relation between law and morality. Underlying Gideon's proposal seems to be an assumption that the legal domain has an internal structure parallel to that of the moral domain: legal reasons, legal obligations, legal excuses, and so on bear the same relations to each other that, within the moral domain, moral reasons, moral obligations, moral excuses, and so on bear to each other. In particular, Gideon relies on the assumption that just as, absent special circumstances, one who acts on morally wrong principles is, for that reason, morally blameworthy or morally deserving of reproach or punishment, so one who acts on legally wrong principles is, for that reason, legally deserving of punishment. 

I argue that this assumption ignores the problem of explaining when and why mistake of law excuses (and when and why it does not), rather than helps us toward a solution. To the extent that the law's treatment of mistake of law is puzzling, it is in large part because, in many cases of legal mistake, the defendant does not seem genuinely deserving of punishment, whether the relevant understanding of desert is specifically moral or more general. Perhaps ironically, Gideon's assumption that legal desert relates to legal mistake in the same way that moral desert relates to moral mistake yields a technical notion of legal desert, one on which acting on the basis of false legal beliefs makes one ipso facto deserving of punishment. We cannot usefully understand when and why legal mistakes excuse in criminal law in terms of a technical notion of legal desert that is internal to the legal domain and independent of moral desert (and of desert simpliciter), but modeled after it. Instead, we need to explain how legal mistakes relate to genuine desert.

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