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2 MISTAKE OF LAW Ulfrid Neumann* I. The relevant section of the Israeli draft concerning "Mistake of Law" reads as follows: For the purposes of criminal liability, it is immaterial whether a person, owing to a mistake as to the existence or meaning of a penal enactment, imagines that his act is not prohibited, unless the mistake could not reasonably have been avoided. 1 The corresponding section of the German Criminal Code (StGB) concerning mistake of law ( 17) reads as follows: If the perpetrator, when committing the act, lacks the insight into his wrong-doing, he is not criminally liable if this mistake was unavoidable. In case, this mistake was avoidable, the punishment can be mitigated according to 49, sec. 1. The two provisions coincide inasmuch as criminal liability is excluded in the case of an unavoidable mistake of law. They differ in two respects: 1. As regards the object of the mistake, 17 StGB vaguely refers to the insight of wrong-doing, whereas Art. 55 of the draft relates the knowledge to the existence of a penal enactment. 2. The avoidable mistake is irrelevant according to the Israeli draft, whereas the second sentence of 17 allows for the mitigation of punishment. In the following I am going to address these two points from the perspective of the German Criminal Code doctrine after having given a brief outline of the systematic context of 17 StGB. * Professor of Law, Johann Wolfgang Goethe-Universitat, FrankfurtMain. 1 The Israeli Criminal Code 1936 does not exclude criminal liability unless knowledge of the law is expressly declared to be an element of the offence (Section 8); see also Schneyer Z. Feller, "Mistake in Israeli Criminal Law", in Israeli Reports to the Tenth International Congress of Comparative Law (1978) 207,

3 ISRAEL LAW REVIEW [Is.L.R. Vol. 30 II. The German Criminal Code, in its present version juxtaposes two and only two forms of mistake: the mistake of fact ( 16 StGB) and the mistake of law ( 17 StGB). This present-day set-up, with its coexistence of mistake of fact and mistake of law flows from a dual normative presupposition on the part of the legislator: on the one hand a mistake of law should not - contrary to the position of the Reichsgericht 2 - be totally irrelevant (a); on the other hand, somebody who acted under the influence of a mistake of law should not be privileged in the same way as somebody who has fallen prey to a mistake of fact (b). a) As regards the first point, this assumption has practically not been contested any more since the leading decision of the Bundesgerichtshof 3 which acknowledged that the "knowledge of unlawfulness" constitutes a separate element of criminal liability; to some the content of the first sentence of 17 flows directly from the principle of nulla poena sine culpa (Schuldprinzip). 4 It is, however, a matter of debate whether the provision of 17 StGB pays sufficient tribute to the Schuldprinzip, in particular whether it can be justified to distinguish in their consequences the lack of knowledge concerning the factual side as opposed to the lack of knowledge concerning the unlawfulness. It may well be put into question, why somebody should to a higher degree be held more responsible for his knowledge of existing norms than for his knowledge of facts. For, in the absence of the knowledge of unlawfulness one has just as little reason to refrain from acting as in the case of a mistake of fact. The so-called Vorsatztheorie pays tribute to this argument holding that knowledge of unlawfulness forms part of mens rea (Vorsatz). Consequently, in the case of mistake of law mens rea is excluded according to this theory. b) In stating that a mistake of law will only exclude criminal liability (and not mens rea), the StGB sides clearly with the so-called "Schuldtheorie". This theory considers the knowledge of unlawfulness to be an element of criminal liability (Schuld) and not of mens rea. Occasional efforts to interpret the existing law as being in conformity 2 See Kuhlen, Die Unterscheidung von vorsatzausschliessendem und nicht vorsatzausschliessendem Irrtum (1987). 3 BGHSt2, Roxin, Strafrecht, Allgemeiner Teil, Vol. I, (2nd ed., 1994) 21 Rn SchmidhAuser, Strafrecht, Allgemeiner Teil (Studienbuch), (2nd ed., 1984) 7/87 ff.; Langer, Vorsatztheorie und strafgesetzliche Irrtumsregelung, (GA, 1976) 193, at 213 ff.

4 Nos. 1-2, MISTAKE OF LAW with the Vorsatztheorie, 5 could only be successful if the provision of 17 StGB which has consecrated the position of the Schuldtheorie would be declared unconstitutional, a consequence which the German Federal Constitutional Court has refused to draw. 6 Thus the Vorsatztheorie is de lege lata in opposition if not with constitutional law as such, but with a statutory enactment which itself is in conformity with the constitution. 7 III. 17 StGB describes the mistake of law as the lack of insight into the unlawfulness of the act. Hence, the terms "knowledge of unlawfulness" and "mistake of law" are complementary: the perpetrator only acts in a state of mistake of law if he lacks the knowledge of unlawfulness when committing the act. This means that the positive notion to act lawfully is not required for the assumption of a mistake of law. 8 Furthermore: the question as to the prerequisites of a mistake of law has to be put and answered in terms of the object of the knowledge of unlawfulness. 17 StGB does not say what knowledge needs to be present for the insight into the unlawfulness of the act. It does not state expressly whether knowledge of moral wrongfulness, knowledge of social harm, knowledge of formal unlawfulness or even of incrimination is needed. It can therefore not be suprising that the efforts to define the object of the knowledge of unlawfulness are manifold. 1. The moral order as object of unlawfulness There is a wide consensus today that knowledge of the moral wrongfulness of the act does not suffice. 9 This is consistent with the widely accepted categorial separation in principles of law and morality. Since moral wrongfulness of an act is neither a necessary nor sufficient condition for a legal prohibition, knowledge of the moral wrongfulness 6 BVerfGE 41, Maurach and Zipf, Strafrecht, Allgemeiner Teil I, (8th ed., 1992) 37 Rn Cramer, in Schanke and Schrbder, Strafgesetzbuchkommentar, (24th ed., 1991) 17 Rn. 6; Baumann and Weber, Strafrecht, Allgemeiner Teil (9th ed., 1985) Jescheck, Lehrbuch des Strafrechts - Allgemeiner Tel, (4th ed., 1988) 408; Roxin, supra n. 4, at 21 Rn. 12.

5 ISRAEL LAW REVIEW [Is.L.R. Vol. 30 is - according to the standards of law - not a cogent motive to refrain from the act. However, due to the fact that legal and moral prohibitions will at least in the core of criminal law largely coincide, the knowledge of moral wrongfulness of the act could require the person to gather additional information about the legal qualification of the act. The knowledge of unlawfulness can therefore be used as an indicator for the avoidability of a mistake of law The social harm approach Social harm as the relevant criterion is located closer to the realm of the law. For it is not the task of the law to help enforce moral norms whereas law, in particular criminal law, is indeed aimed at the prevention of acts which cause social harm. This could actually call for a definition of the knowledge of unlawfulness in the sense of knowledge of social harm. 1 However, the link established via the programmatic function of criminal law is too unreliable as to guarantee a sufficiently stable relation between the knowledge of unlawfulness and the norms of the law. 12 It is out of the question for the criminal law or the legal order to prohibit each and every act which entails social harm. In view of the environmental risks, running a chemical factory may well cause social harm. The sphere of the unlawful will only be reached if the running of this factory transgresses a certain level of emissions or if the restrictions imposed on it are disregarded. It is exactly the function of the law to define, weighing the interests at stake, the point up to which a socially harmful act (which can be of social use seen from a different angle) shall be tolerated. The knowledge of this borderline cannot be replaced by the vague notion that the act will cause social harm. 10 Jescheck, supra n. 9, at Arthur Kaufmann, Das Unrechtsbewusstsein in der Schuldlehre des Strafrechts (1949, Reprint 1985) See also Arthur Kaufmann, Die Paralel wertung in der Laienshpdre (1982) 22 f. 12 Mangakis, Die Unrechtsbewusstein in der strafrechtlichen Schuldlehre nach deutschem und griechischem Recht (1954) 54; see also Arthur Kaufmann, Parallelwertung, supra n. 11, at 22.

6 Nos. 1-2, MISTAKE OF LAW 3. The substantive value order of the law as the point of reference Whereas it is common opinion not to let the knowledge of social harm of the act suffice, one does not, on the other hand, go so far as to require the knowledge of the formal legal prohibition. The perpetrator need not know the unlawfulness of the act in the legal, technical sense. 13 What counts is not the knowledge of the particular legal proscription which is being violated, but the knowledge that the act is in opposition to the binding substantive value order of the law and is, thus, legally prohibited. 14 It is, however, a matter of doubt whether this link of the knowledge of unlawfulness with the system of legal norms can be upheld without any knowledge about the existence of the particular proscription violated by the act. If one takes off the ontologically oriented linguistic veil, "substantive value order of the law" can well be understood in the sense of the whole body of legal principles on which the normative legal system is founded. Contrary to legal rules, these principles do not prescribe orders and prohibitions; they only provide the value yardsticks against which legal rules and acts will be tested. 15 Thus the principle that property should be protected does not define the concrete circumstances in which intrusions into someone else's property will either be allowed or forbidden. It simply means that all legal rules pertaining to this matter should consider the principle of protection of property. Since the legislator has wide discretion, this principle offers very little guidance for the individual citizen. 4. Knowledge of unlawfulness as knowledge of the incrimination of the act If one really wants to bring to bear the position that the knowledge of unlawfulness has to be related to the appraisal of the act by the legal order, knowledge of the legal prohibition is indispensable. The perpetrator must know that his act violates a norm of the existing legal order, which 13 BGHSt 2, 194, 202; BGHSt 10, 35, Jescheck, supra n. 9, at For the difference between legal principles (Rechtsprinzipien) and legal rules (Rechtsregeln) see e.g. Alexy, Theorie der Grundrechte (1986)

7 ISRAEL LAW REVIEW [Is.L.R. Vol. 30 means that it may lead to an intervention on the part of the authorities.1 6 It is immaterial whether the perpetrator realises that his act amounts to a criminal offence or whether he mistakenly considers it to be a simple Ordnungswidrigkeit. 7 Today, it is no longer possible to draw a qualitative distinction between these categories as regards the degree of unlawfulness. 8 However, the knowledge that the act may provoke a disciplinary action does not suffice.' 9 For the disciplinary law sanctions the breach of specific duties which flow from the integration into an institution organised by the public law and which, in part, reach well beyond the general duties and prohibitions of the criminal law and the Ordnungswidrigkeitenrechts every citizen has to abide by. Consequently, the knowledge of a school teacher that even a moderate corporal punishment or admonition may lead to disciplinary action does not by necessity exclude the reference to a mistake of law in the criminal law context ( 223 StGB). IV. In view of the existing regulation in 17 StGB, the German criminal law doctrine does not address the question whether it is appropriate to dispense with mitigation totally in the case of the avoidable mistake. It is, however, a matter of debate whether the simple possibility to mitigate the punishment in the case of an avoidable mistake is in accordance with the nulla poena sine lege principle or whether this principle, enshrined in the constitutional law, does not require a mandatory mitigation. This discussion bears upon the general issue whether the avoidable mistake can be totally disregarded by the legislator. 16 Stratenwerth, Strafrecht, Allgemeiner Teil, Die Straftat, Vol. 1, (3rd ed., 1981) Rn. 565; Jakobs, Strafrecht, Allgemeiner Teil, Die Grundlagen und die Zurechnungslehre, (2nd ed., 1991) 19/23; Schroeder, in Leipziger Kommentar (LK) (11th ed., 1994) 17 Rn Lackner, StGB, Strafgesetzbuch mit Erlauterungen, (11th ed., 1995) 17 Rn. 2; see also Neumann, "Der Verbotsirrtum ( 17 StGB)" (1993) JuS 793, 795 Fn. 26 with references. 18 Jakobs, supra n. 16, at 3/8. 19 Rudolphi, Unrechtsbewusstein, Verbotsirrtum und Vermeidbarkeit des Verbotsirrtums (1969) 63; contrary opinion Rudolphi, in Systematischer Kommentar zum Strafgesetzbuch (SK) (1989) 17 Rn. 6 and the dominant opinion.

8 Nos. 1-2, 1996] MISTAKE OF LAW 1. The position that the second sentence of 17 StGB is not compatible with the nulla poena sine culpa principle underpins, a fortiore, the inadmissibility of an enactment which limits itself to the unavoidable mistake of law. However, I do not share this position which is held by a minority of authors in Germany. 20 On the basis of a normative concept of Schuld (liability) it is convincing to dismiss any notion of a mistakerelated criminal liability deduction if the mistake reveals a gross deviation from the "normal" obediance to the law Accepting, in accordance with most German authors, a facultative mitigation only in the case of an avoidable mistake of law, one is still not prejudiced with regard to the question whether the avoidable mistake of law can be totally disregarded. On the contrary, the fact that the majority backs its position by reference to exceptional circumstances which might call for the full range of punishment rather speaks against totally disregarding the avoidable mistake of law. 23 I believe that even in the case of an avoidable mistake of law the liability of the perpetrator should normally ceteris paribus be lower as compared to the situation where somebody acts despite his knowledge of the prohibition. I see, however, no pressing need to consider this difference in liability already at the level of establishing the frame of punishment, rather than in the sentencing process. This decision lies in the legislator's discretion. 20 Langer, supra n. 5, at Neumann, in Nomos-Kommentar zum StGB (1994) ff., 17 Rn. 83 with references. 22 Cramer, supra n. 8, at 17 Rn. 3; BVerfGE 41, See e.g. Roxin, supra n. 4, at 21 Rn. 67.