The Role of Reasonable and Unreasonable Mistake in Justified Defences A Comparative and Analytical Study

Khalid Ghanayim*

(2007) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

Table of contents

I. Introduction

Justified defence negates the wrongful character of conduct that falls within the definition of an offence. Conduct performed under conditions of a justified defence does not constitute an offence. For example, A intends to shoot and kill his foe B. Just before A fires, B shoots him and causes his death. Shooting A is the only way to save the life of B. When B identifies the threat to his life from A, and acts to save himself by foiling that threat, he does not bear criminal responsibility for killing A. B’s conduct constitutes justified self-defence.

However, there can be situations in which a person who is not threatened and whose interests are not endangered mistakenly believes that he is under threat and his interests are in danger, and accordingly “protects” his interests by attacking the interests of a third party. Such cases raise the question of how the law should treat acts done in the circumstances of mistaken justified defence. Which, if any, criminal liability is born by a person who acts under such circumstances?

I should note at the outset that the question under discussion is influenced by the terminology chosen to describe the subject. Thus, for example, Continental law1 treats this subject under the heading of mistake in regard to the existence of a justified defence (Erlaubnistatbestandsirrtum in German), and putative justified defence (Putativrechtfertigungsgrund). The choice of this terminology reveals a view that the approach to the putative justified defence is not identical to that of a real justified defence, and that a putative justified defence can replace real justified defence to some degree, but that it does not play the same role. Putative justified defence is thus treated in a separate chapter, which follows the one on real justified defence. The situation is different in Anglo-American legal systems. Anglo-American legal sources like the Model Penal Code, case law and legal scholars2 treat the reasonable mistaken justified defence together with real justified defence, as if both belong to the same category, and are legally identical.

In this study, I will present a comparative analysis of the subject of putative justified defence in Continental European and Anglo-American law. In doing so, I will employ the term ‘mistaken justified defence’, which I believe, and hope to show, is the appropriate term for describing the phenomenon.

Mistaken justified defence represents a mistake in regard to the existence of a legally recognized justified defence, such that if the actor’s belief reflected the reality, his conduct would fall within the scope of a real justified defence. A mistake as to the existence of a defence that is not legally recognized, or a mistake in regard to the conditions of the defence – such that if the actor’s belief were correct, his conduct would not fall within the scope of a legally recognized defence – do not fall within the scope of mistaken justified defence. Such cases represent (indirect) mistakes of law.3 For example, consider a father or teacher who employs extreme violence against a minor child or student in the belief that corporal punishment for educational purposes falls within a criminal defence and is permitted. The legal system does not permit such harm.4 Such a father or teacher would have made a mistake in regard to the existence of an unrecognized defence, which is a mistake of law. Another example of a mistake in regard to the conditions of a defence would be where the victim of an assault, believing that he is acting in self-defence, continues to hit the assailant who has fallen to the ground and has stopped his attack. Once the assault has ceased, justified self-defence no longer applies.

Mistaken justified defence must also be distinguished from an actor who merely suspects that he has a justified defence. The mental element of justified defence requires full awareness,5 and therefore such a person would not be acting in a state of mistaken defence.6

The question addressed in this study is what rules apply to an actor whose conduct fulfils the definition of the offence under a reasonable or unreasonable belief that he is acting in a situation of justified defence, such as self-defence or justified necessity. In other words, what is the appropriate way of looking at reasonable and unreasonable mistaken justified defence in accordance with the fundamental principles of criminal law, and the constitutional principles protecting fundamental human rights? What is the place and function of reasonable and unreasonable mistaken justified defence in the structure of the offence?

The subject of mistaken justified defence deals with all of the elements of the offence, touches the question how criminal offences should be best structured, concerns the distinctions among the various elements of the offence, and the various functions of the different elements of the criminal offence. However, this does not mean that the law in regard to mistaken justified defences automatically derives directly from the distinctions among the various elements of the criminal offence. Thus, for example, a legal system that does not substantively distinguish between the various elements of the offence may adopt an approach dictated by legal policy considerations. A legal system that primarily emphasizes the protection of social values, in the sense of preventing harmful results, might adopt the position that a mistake in regard to the existence of a defence to criminal responsibility is irrelevant, and that the actor should bear full responsibility. Such a position could be seen as consistent with such systems as ancient Continental law and Anglo-American law, which emphasized the role of criminal law in preventing harmful results, and were of the view that there could be offences without culpability (offences of absolute liability), and that a mistake of law does not exempt from criminal responsibility.7 As opposed to that, a legal system that emphasizes the principle of justice in criminal law, and in criminal punishment in particular, and takes the view that there can be no offences without culpability, and that a mistake of law can serve as a defence to criminal responsibility, may adopt the position that a mistaken justified defence may serve as a defence under certain conditions. In other words, a legal system that views the offence as a single, uniform unit can emphasize whichever legal consideration it deems dominant or important, and adopt a solution accordingly, whereas a legal system that distinguishes among the various elements of the offence, and defines the different constituents and their functions, must consider mistaken justified defences in terms of those elements and functions. This does not mean that the fate of mistaken justified defences is automatically decided by the hierarchic, graduated structure of the offence, but this structure may contribute to a more principled approach to mistaken justified defences. For example, a system that substantively distinguishes among the defences to criminal responsibility, and that adopts the view that justified defences are negative elements of the actus reus, will take the view that a mistaken justified defence negates mens rea.8 As opposed to this, a system that also distinguishes between the actus reus of the offence and justified defences may, on the basis of legal policy considerations, adopt the view that a mistaken justified defence is not an instance of mistake of fact that negates mens rea but should be treated identically, or that it is an instance of mistake of law, or may even conclude that it is a special, independent issue that has its own special consequences.9

Before proceeding, I should point out that the topic of reasonable and unreasonable justified defence is highly controversial. The many hundreds of legal studies that have been written over the years have not succeeded in clarifying the subject, which remains fiercely disputed. This is clearly reflected in the many differing approaches found in various legal systems. Therefore, I think it is appropriate to begin with a brief survey of the basics of the different approaches in the various legal systems.

It should be noted that most of the studies conducted in Anglo-American law tend to focus upon the approaches and models found in that system almost to the exclusion of approaches in Continental law,10 so I will expand upon the approaches developed in Continental law.

This article consists of seven parts, with the present introduction being the first. Part II is descriptive and presents the various approaches in the Anglo-American and European Continental law. Part III examines the relationship between mistaken justified defence and the real justified defence, In other words, can a reasonably mistaken justified defence be treated as a justified defence? It will be argued that reasonable mistaken justified defence is not a defence of justification; rather, the reasonable mistaken defence is a defence of excuse, i.e. a defence that negates the element of culpability. Part IV addresses the definition of mens rea and the relationship between mens rea and mistaken justified defence. The question is: does a mistaken justified defence negate the mens rea of the offence? This Part IV consists of two sub-parts, of which the first (IV.1) deals with the definition of the dolus malus doctrine, its acceptance in criminal law and its relations to the mistaken justified defence. Here, the question is: must the mens rea in modern criminal law be “evil”, so that mistaken justified defence negates the mens rea? The question will be answered in the negative. It will be argued that the old dolus malus doctrine is not accepted in modern criminal law. Part IV.2 shows the relation between the actus reus of the offence and justified defences, i.e. the theory of the negative elements of the offence. The question is: does the non-existence of a justified defence constitute an element of the actus reus, i.e. is the justified defence part of the actus reus, so that mistaken justified defence negates the mens rea of the offence? This part presents the arguments for rejecting this view; the defences of justification constitute a separate element of the offence; following and in this sense, a mistaken justified defence does not negate the mens rea of the offence. Part V examines whether mistaken justified defence is a kind and species of mistake of law, or at least that in the case of unreasonable mistaken justified defence the actor bears criminal responsibility for mens rea offence. The answer will be negative, so that an act done in the conditions of unreasonable mistaken justified defence does not constitute an offence of mens rea; the actor will merely be guilty of negligence and bear criminal liability only if the particular offence can be committed with mere negligence rather than intention.. It is only in this sense – liability for an offence committed negligently, if applicable – that the implications of mistaken justified defence are similar to that of the mistake of fact. Part VI presents the solution which is to be preferred in the author’s view, namely that the implications of mistaken justified defence should be identical to those of mistake of fact. Part VII contains a comparative conclusion.

II. Comparative Law

The German Criminal Code (Strafgesetzbuch, StGB) contains only one express regulation of a mistaken defence, namely mistaken excused necessity. Under section 35(2), reasonably mistaken excused necessity negates criminal responsibility. In the case of unreasonable mistaken excused necessity the actor bears mitigated responsibility for a mens rea offence. The German Criminal Code contains no express regulation of mistaken justified defences. Section 20 of a draft amendment of 1960 (which was not enacted in this form) takes the view that a person who acts under circumstances of mistaken justified defence does not bear criminal responsibility for a mens rea offence, while in the case of unreasonable mistake the actor would be held liable for a negligence offence. In other words, the rule for mistaken justified defence would be identical to that of mistake of fact.11 However, under section 39(2) of that same draft amendment, section 20 does not apply to mistaken justified necessity. Mistaken justified necessity negates criminal responsibility only when the mistake is reasonable. If the mistake is unreasonably, the actor bears mitigated responsibility for a mens rea offence.12 This draft was harshly criticized, particularly for its differential approach to justified defences that form a single category: mistaken justified necessity as opposed to all other mistaken justified defences.13 The special commission established to examine the draft accepted the criticism and proposed removing sections 20 and 39(2) from the draft, and leaving the question open to the debate of scholars and the courts.14 Prior to the amendment which eventually was adopted in 1975, the courts and some scholars took the view that mistaken justified necessity should be treated like mistake of fact, i.e., negate criminal responsibility for a mens rea offence. However, the condition imposing an obligation of reasonable examination of the objective conditions of the defence formed part of the mental element of the defence. If the actor were not to make a reasonable assessment of the objective conditions prior to acting, the mental element of the defence would not be fulfilled, and the actor would bear responsibility for acting with mens rea. In other words, in the case of unreasonable mistake the mental element of the defence would not be met. The significance of this is that, prior to the 1975 amendment, mistaken justified necessity did not negate criminal responsibility unless the mistake was reasonable.15 Following the 1975 amendment, the position of the courts and the prevalent scholarly view is that the implications of mistaken justified defence are identical to that of mistake of fact (regulated in section 16 StGB), and the obligation to reasonably assess the existence of the objective conditions of the defence is not part of the mental element of the defence. In other words, a mistaken justified defence negates criminal responsibility for a mens rea offence. If the mistake is unreasonable, the actor will bear responsibility for a negligence offence (where such an offence exists). That is also the view of Korean law,16 Japanese law,17 Austrian law (sec. 8),18 Swiss law (sec. 19),19 and the prevalent view in Portuguese law,20 Swedish law,21 and Israeli law22 (sec. 34R).

The Spanish Criminal Code does not regulate mistakes, and there is a heated controversy in the legal literature. In the past, the case law took the view that a reasonable mistaken justified defence was to be treated as if it was a real justified defence. However, the courts, followed by a minority within the scholarly literature, later adopted the dolus malus theory (die Vorsatztheorie, the theory of mens rea),23 according to which a mistaken justified defence negates the mens rea. Other scholars object and argue that a mistaken justified defence is a mistake of fact or should be treated identically, while still others argue that a mistaken justified defence should be viewed as a mistake of law.24

Until 1977, South African law took the position that a mistaken justified defence was to be viewed as a mistake of law, i.e., in case of unreasonable mistake the actor bore full responsibility for a mens rea offence. However, this view was rejected by the Supreme Court in the De Blom case, which adopted the theory of mens rea, and took the view that a mistaken justified defence negates mens rea.25

Under sec. 29 of the Polish Criminal Code (1997), a reasonable mistaken justified defence negates criminal responsibility. In the case of unreasonable mistake the actor bears criminal responsibility for a mens rea offence. However, the actor will be shown leniency, and the court may exempt him from criminal responsibility.26 The same approach is taken by Italian law (sec. 59(3) of the Criminal Code and the 1992 draft).27

Under Australian law,28 and Canadian law,29 every reasonable mistaken defence – and according to English case law until 1983,30 reasonable mistaken self-defence – negate criminal responsibility. In the case of unreasonable mistake the actor bears criminal responsibility for a mens rea offence. In R. v. Williams,31 English case law defined self-defence as follows: “The defence of self-defence is made out if the defendant shows that he used such force in the defence of himself or another as was reasonable in the circumstances as he believed them to be.” Thus the case law combined real self-defence and reasonable mistaken self-defence in a single definition. The courts took the view that mistaken self-defence served to “negative the intent to act unlawfully,”32 such that by the logic of the definition, mistaken self-defence negates (only) the mens rea,33 regardless of whether the mistake was reasonable or not.34 If the mistake was unreasonable, the actor will bear criminal responsibility for negligence. As opposed to this, in the case of duress, the courts were of the opinion that mistaken duress negates criminal responsibility only when the mistake was reasonable.35 The court did not make any comparison between mistaken self-defence and mistaken duress, nor did it state the reasoning behind its position on mistaken duress. Some legal scholars have expressed the opinion that self-defence is a justified defence and, therefore, mistaken self-defence negates mens rea, whereas duress is an excused defence and, therefore, mistaken duress does not negate mens rea.36 Others have criticized the court’s distinction between mistaken self-defence and mistaken duress.37 The English criminal law reform commission defines the real defences to criminal responsibility in conjunction with the reasonable mistaken defences. If the mistake in regard to the existence of the defence is unreasonable, the actor bears criminal responsibility for negligence. In other words, according to the logic of the proposal, the rule for mistaken defences is identical to that of mistake of fact.

The American Model Penal Code also combines the real defences with the mistaken defences in one definition. Sections 3.04 (1), 3.05 (1)(c), 3.06 (1) and 3.07 (1) establish that “the use of force upon or toward (another person) is justifiable when the actor believes that such force is…” However, under the law, when the mistake is unreasonable, the actor bears criminal responsibility for an offence of negligence.38 Some scholars believe that a mistaken justified defence should be viewed as identical to a mistake of fact and should negate criminal responsibility for an offence of mens rea. In the case of unreasonable mistake the actor bears criminal responsibility for an offence of negligence.39

A comparative legal examination thus reveals a number of different approaches to mistaken justified defence. These approaches are: (1) the law in regard to reasonable mistaken justified defence is identical to that of a real justified defence (below, III); (2) a mistaken justified defence negates mens rea (below, IV 1); (3) a mistaken justified defence is not an instance of mistake of fact but its consequences are the same (below, IV 2); (4) a mistaken justified defence is an instance of mistake of law, or at least, is treated in an identical manner (below, V).

III. The Relationship between Reasonable Mistaken Justified Defence and Real Justified Defence

As noted,40 approaches in Anglo-American law and Spanish law treat reasonable mistaken justified defence together with real justified defence, as if the two are to be treated equally.

As Fletcher points out, the source of the approach in Anglo-American law that combines the reasonable mistaken justified defences with the real justified defences, i.e. treats reasonable mistaken justified defence as a justified defence, is to be found in Coke and Blackstone. Coke and Blackstone were of the opinion that “Reason is the soul of the law… The centerpiece of this preoccupation with reasonableness is the reasonable man… reasonable is what a reasonable man would do.”41 The reasonable man is the measure for defining the criminal conduct. Following this thinking, when a person acts under conditions of a reasonable mistaken justified defence, i.e. conditions under which a reasonable person would act in the same way as the actor, the conduct is deemed acceptable by society. This is so, inasmuch as a person can only be asked to act reasonably. This approach is consistent with the utilitarian rule in the sense that when a person acts under conditions of a reasonable mistaken justified defence, that person acts reasonably in terms of social utility. As Dressler puts it: “A society realistically cannot ask more of people than to act in conformity with reasonable appearance. Thus, we justify A killing B, as long as A’s beliefs are reasonable.”42 This approach had been adopted in Spanish case law, on the ground that self-defence and necessity are forms of emergency in which the actor must act immediately. These defences are situation of surprise. Under such conditions in which a person must act immediately in order to thwart a threat, a person cannot be expected to examine the objective situation in advance in order to ascertain the existence of a danger to an important interest, such as human life. Such an examination could result in delay that would frustrate any possibility of defence and protection. Therefore, the standard for examining the conditions of self-defence is not objective, but subjective-reasonable under the circumstances. In other words, how would a reasonable person act? Reasonable mistaken justified defence is a real justified defence.43
A second reason for combining reasonable mistaken justified defence with real justified defence is that traditional Anglo-American law did not distinguish between justification and excuse and focused only on the result: guilty or not guilty. As Fletcher noted: “[T]he distinction between justification and excuse has never received the kind of attention in Anglo-American law that is has in the German legal tradition. The theory of self-defense itself oscillates between a rationale of excuse and of justification. Indeed this is the reason we reserve our discussion of self-defense until we have canvassed both theories of justification and of excuse. If this is the case, then it is not surprising that putative self-defense – a theory of excuse – remains within the bound of the composite defense regulated in the Model Penal Code”44
A third explanation derives from the mental element required for the defence. According to a traditional Anglo-American view, a defence to criminal responsibility does not comprise both objective elements and mental elements. Some have adopted the deeds theory, according to which a defence comprises only objective elements, i.e., the objective conditions of the defence, while others have opted for the reasons theory, by which a defence is composed solely of mental elements.45 Since, under the subjective theory, a reasonable mistaken justified defence is a real justified defence,46 and because the Model Penal Code did not wish to decide between the two theories, it adopted both.

However, a reasonable mistaken justified defence is not a justified defence, and the law of reasonable mistaken justified defence, like justified necessity or self-defence, is not the same as the law for real justified defence.
Justified necessity is based on utilitarian considerations that are grounded upon the principle of social solidarity and the autonomy principle. The duty of social solidarity is exceptional in criminal law. It requires that a person accept the infringement of his own legally protected interests in order to protect more significant interests of the actor or another person.47 In the absence of a concrete threat to an important interest of the actor or another person, a person need not forfeit his own protected interests, inasmuch as such forfeiture would serve no purpose. Justified necessity is, therefore, contingent upon (also) objective conditions such as a concrete threat to an important protected interest. It follows from the principle of social solidarity that reasonable mistaken justified necessity does not constitute a justified defence.48
Moreover, the autonomy principle – which is a fundamental element of justified necessity – grants an individual autonomous space in which he is free to live his life unhindered, as long he does not infringe the protected interests (autonomy) of others, or endanger them. The autonomy principle prohibits a person from infringing the personal sphere of another person. An exception to this rule – i.e., a situation in which a person must reconcile to an infringement of his personal sphere – is possible only when there is an especially strong justification, deriving from justified necessity in the face of a significant danger to a protected interest of greater value. Therefore, in the absence of a danger to a more important interest, the autonomy principle forbids a person from infringing another person’s personal sphere, and grants that other person the right to resist such infringement. A person’s mistake does not constitute that special justification that would allow the infringement of another person’s personal sphere.

Consider self-defence. The rationales of self-defence are the defence of autonomy and preservation of the legal order.49 Where there is no assault which would threaten protected social interests, such as life, repelling what is merely an imagined assault does not serve to protect autonomy, as there is no assault upon autonomy. Repelling the imagined assault does not protect the legal order, inasmuch as the imagined assault does not constitute an antisocial act that creates a concrete threat to a protected societal interest. Mistaken self-defence has no basis in the rationales underlying real self-defence, and is not a justified defence.50 The actor in a situation of mistaken self-defence is, practically speaking, the assailant who does not respect the autonomy of the victim, while his victim is the defender. Treating mistaken justified defence as a real justified defence fully contradicts the legal order. How can one view an act that causes social harm and inflicts injury to another person as an appropriate, desirable conduct intended to protect the legal order? Moreover, viewing conduct performed in a situation of mistaken justified defence as a justified, appropriate and desirable act contradicts the public’s sense of justice. How can we justify conduct that only causes harm? A mistaken justified defence cannot be a real justified defence.51

In a situation of mistaken justified defence, we examine whether the mistake was reasonably avoidable, that is, whether the actor was at fault. The subject of mistaken justified defence is thus related to the element of culpability, and not to that of the absence or existence of justified defences. Combining mistaken justified defence and real justified defence is an expression of a system that does not distinguish between justified defences and excused defences, i.e. between conduct that is appropriate and desirable, and conduct that is prohibited but not culpable. Such a system is no longer acceptable, as it is clear that the two types of defences must be distinguished. The real justified defense justifies the use of force, while putative justified defense merely excuses it.52

Moreover, the argument that “a society realistically cannot ask more of people than to act in conformity with reasonable appearance”, and therefore that an act performed under conditions of reasonable mistaken justified necessity falls within the scope of a justified defence,53 is incorrect. The mistake – which is a mental element – cannot make up for the objective deficiency. A putative defence can substitute for a real defence, but neither does it fill the same role, nor has it the same significance. Thus, a reasonable mistake of law is a defence in many legal systems, but it is not deemed to be a justified defence. When an actor mistakenly believes that there is no criminal prohibition, and his mistake is reasonable, we cannot take the view that the result of the mistake is that we must relate to the act as if there were no criminal prohibition. An act performed under conditions of a reasonable mistake of law is an antisocial act, although it might be not culpable. There is a significant difference between an act being deemed reasonable and its being deemed desirable. “Acting reasonably does not require that one be right. The reasonable person can be wrong.”54“Others may be wrong, but their wrong path might still be on the map of reasonable alternatives.”55

Additionally, the argument of the Spanish courts, namely that the actor is required to act immediately, and does not have the ability to verify the danger, and that the actor cannot, therefore, be required to refrain from acting,56 presents self-defence as an excuse that is explained by an absence of reasonable expectation for lawful conduct. This approach describes excused self-defence rather than justified self-defence.57

Moreover, the “mistake” in an approach that views reasonable mistaken justified necessity as a justified defence is reflected in the resultant possibility to resist an act performed under conditions of mistaken justified necessity. A justified defence, such as justified necessity or justified self-defence, represents a situation that is consistent with, and that serves the purpose of criminal law. An act performed under conditions of justified defence represents the appropriate conduct under the circumstances. The purpose of criminal law prohibits resisting a justified act. One may not resist conduct that fulfils the function of the criminal law, and that constitutes the appropriate conduct under the circumstances.58 Thus, for example, in a situation of justified necessity, one may not prevent the actor from damaging property as a means for averting a danger to human life. Therefore, the approach that views reasonable mistaken justified necessity as a real justified defence prohibits any person, including a victim who knows that there is no concrete danger, from preventing the act. In other words, the criminal law permits a pointless infringement of societal values. Inasmuch as no one denies that the victim of an assault carried out as the result of a mistaken defence has the right to defend his protected interests,59 (and in this regard, the controversy whether such defence constitutes self-defence or necessity is of no importance),60 reasonable mistaken justified defence does not represent a doctrine of justification.61

Additionally, if a reasonable mistaken justified defence is taken to be a justified defence, then a person acting in a situation of that mistaken justified defence and the victim of that conduct both enjoy justified defences (a right to act), which presents an absurd situation. If the actor enjoys a justified defence, then he may not be resisted, i.e. there can be no justified defence.62 Moreover, if reasonable mistaken justified defence is treated as real justified defence, then any third party is permitted to intervene and unnecessarily harm the victim’s protected interests. A third party may also prevent the victim from defending himself. The third party will also enjoy the defence, since a justified defence is universal. It relates to the act, and applies to every person. This is an absurd situation. The conclusion is that reasonable mistaken justified defence cannot be legally equivalent to justified defence, and their consequences must be different.

IV. The Relationship between Mens Rea and Mistaken Justified Defence

1. The theory of dolus malus

There are approaches in Spanish law, South African law, and in other legal systems that adopt the dolus malus doctrine, and hold that mistaken justified defence negates mens rea.63 The theory of dolus malus, at least in its traditional sense as originally expounded, states that mens rea is an element of culpability that is composed of awareness of the objective elements of the actus reus, and of awareness of the prohibited nature of the act, i.e. awareness of both the prohibiting norm, and of the absence of a defence to criminal responsibility – “Quaelibet ignorantia etiam juris excusat a dolo”, i.e. every unawareness, also the unawareness of the law, negates the mens rea. Dolus malus comprises all the mental elements and every mistake – i.e. mistake of fact, mistake of law, and mistake in regard to the existence of a justified defence or an excused defence – negates the mens rea. It is not necessary to distinguish among mistake of fact, mistake of law, and putative defence. The actual awareness of the fact that the act is prohibited constitutes the justification for imposing criminal responsibility upon the actor for a serious mens rea offence. Thus the mens rea of culpability is present only when the actor is also aware of the prohibited nature of his conduct. This is also the source of the theory’s name – dolus malus, or Vorsatztheorie.
Support for this approach can be found in the wording of criminal offences that comprise the terms “wilfulness” and “malice”, which are expressions of “malus” in mens rea. In this regard, it is interesting to note the Drury case, since although British law does not recognize or adopt the dolus malus theory,64 the definition of mens rea indicates, or is very close to the definition of dolus malus. British case law established that “Saying that the perpetrator ‘wickedly’ intends to kill is… ‘wicked and mischievous purpose,’ in contradistinction to ‘those motives of necessity, duty, or allowable infirmity, which may serve to justify or excuse’ the deliberate taking of life.”65
Some states66 define mistake of fact and putative defence in the same norm, and take the view that a mistake in regard to the existence of a positive element of the actus reus (mistake of fact), and a mistake as to the existence of a defence to criminal responsibility (putative defence) negate mens rea. A putative defence negates mens rea to the same extent as a mistake of fact. Some rely upon this approach in taking the view that a mistaken justified defence negates mens rea as the mental element of the offence.67

The theory of dolus malus is not accepted in most modern legal systems, and rightly so, for a number of reasons. Modern law views mens rea as composed of a cognitive element (awareness), and a wilful element, without any element of “evil”. The fulfilment of the actus reus of the offence indicates the harm (attack) to the protected social interest, and thus the (objective) anti-sociality of the offence – the wrongfulness of the offence. The wrongful (evil) character of mens rea derives from the integration of mens rea and the actus reus. There is no further requirement of evil in mens rea. Therefore, the requirement of evil in mens rea represents an expression of ancient law, and is no longer accepted in modern law. As Gardner wrote: “the mens rea principle originally required that the defendant perform the criminal act with an evil, wicked, or immoral motive… this concept of mens rea was sensibly abandoned at the offence definition level in favor of a more structured system.”68
Moreover, under the theory of dolus malus, the actor must be aware of the wrongfulness of his conduct, which is often not the case, particularly when the offence is committed spontaneously, or where the offence is not carried out in a state of composure. Under the theory of dolus malus, most spontaneous perpetrators do not act with mens rea, and are not subject to punishment for their conduct, except, perhaps, for an offence of negligence.69
Additionally, according to the theory of dolus malus, mens rea must relate to the very existence of the norm and the actor’s understanding of the norm. In other words, mens rea includes awareness of the law, and every mistake of law (reasonable or not) negates – or should negate – mens rea. Therefore, under the theory of dolus malus, the prohibited act is not the conduct prohibited by the law, but the conduct prohibited by the actor’s mind. Such a situation runs contrary to the legality principle, which states that nulla poene sine lege. Under the theory of dolus malus, legal prohibitions are not essentially objective, but rather they are primarily subjective.70
Modern law clearly distinguishes between mistake of fact and mistake of law, and treats them differently. A mistake of law does not negate mens rea.71 Additionally, while the criminal law of many legal systems defines mistake of fact and putative justified defence in the same norm, and adopts the view that a mistaken justified defence negates mens rea, that norm is not the opposite legal expression of mens rea. It can be said that the norm merely takes the view that a mistaken justified defence should be treat in the same manner as mistake of fact and only has the same legal implications.72

The conclusion is that mens rea is composed of a cognitive element (awareness), and a wilful element, and need not be evil. The actor’s awareness must relate to the existence of the elements of the actus reus, alone. The old theory of dolus malus is no more acceptable in modern criminal law. A mistaken justified defence does not negate mens rea in that sense.

2. The theory of negative elements of the actus reus

Swedish law73 adopts the theory of negative elements of mens rea, according to which a justified defence is a negative circumstance in the actus reus. Accordingly in the case of justified defence the actus reus of the offence is not fulfilled. The actor’s awareness must relate to its absence, and accordingly, a mistaken justified defence is a typical instance of mistake of fact.74

However, the absence of a justified defence is not part of the actus reus of the offence, and this is why the theory of the negative elements of the offence should not be followed. There is a significant difference (both social and legal) between an act that does not fulfil the actus reus, and an act that fulfils the actus reus but which was carried out under the conditions of justified defence. Conduct that a priori is not within the scope of the actus reus either does not infringe the legally protected value at all, or – although it may harm a protected value – has been removed from the scope of the criminal norm for reasons of policy considerations.
When the act does not infringe the protected interest in any way, as for example, swatting a fly in regard to homicide offences, the act is not relevant to the criminal offence. There is no relationship whatsoever between killing a fly and homicide. On the other hand, an act that falls within the scope of the criminal prohibition, but that is performed under conditions that provide a justified defence, is an act that infringes the protected value. The infringement is, generally speaking, antisocial and prohibited, but the defence negates the antisocial character of the infringement, as in the case of killing a person in the course of self-defence. Society’s value system does not allow us to equate killing a person with killing a fly.75 We cannot equate what is done under circumstances of justified defence to something that, a priori, does not fall within the scope of the criminal prohibition.
Moreover, there is a clear legal distinction between conduct performed in a state of justified defence and conduct that harms a protected legal interest but does not fall within the definition of the actus reus. A justified defence expresses the opinion that the law views the conduct as serving the purpose of criminal law, and thus as desirable. On the other hand, conduct that harms a protected interest is a wrongful and unjustified conduct; it falls outside the scope of the actus reus for policy reasons, such as the subsidiarity principle. Removing the conduct from the ambit of the actus reus is not based upon the view that the conduct is socially desirable. Consider, for example, making defamatory statements to a single person other than the victim, which does not fall within the scope of the actus reus of defamation offence in many legal systems. Such conduct is not criminally prohibited. However, the act infringes the victim’s honour, it is negative and antisocial, and may amount to a civil wrong, the tort of defamation.76 There is, thus, a substantial difference between conduct performed under conditions of justified defence – which is socially acceptable and desirable – and conduct that infringes a protected value, but although not within the ambit of the criminal prohibition, is nevertheless antisocial and may even be a tort or administrative offence.
In addition, the purpose of criminal law requires us to view justified defences as situations that are not within the scope of the actus reus. Fulfilment of the actus reus denotes harm to the legally protected value. There is a presumption that an act fulfils the actus reus of an offence is not performed under justifying conditions, and that performing the act under justifying conditions is an exception.77 Thus sec. 34E of the Israeli criminal code expresses that “Unless stated otherwise in other enactment, it is presumed that an act is performed under conditions lacking any defence as to criminal responsibility”. If an act amounts to offence, this expresses a message to society that this act is prohibited and must be avoided. Legislation defines the acts that are prohibited and that constitute offences, draws a dividing line between what is permitted and what is criminally prohibited, and warns the public not to step over the line. The actus reus is therefore the core of the prohibition as an imperative norm,78 and the role of the criminal law in protecting social interests is primarily expressed by the actus reus. Thus, for example, the actus reus of homicide offences is the core of the offence as a norm intended to protect life. As opposed to that, a justified defence – like self-defence – is not an imperative norm for the preservation of life. It is a defence, constitutes a right to act (not a duty to act), relates to all or most social values, and is not an imperative norm to protect life.
Moreover, the significance for mens rea in viewing a justified defence as a negative element of the actus reus is that there is mens rea only when the actor is actually aware that there is no justified defence at his disposal. This view contradicts the reality that the actor, in normal circumstances, does not give any thought to the absence of a justified defence in the course of committing the offence.79
Moreover, in a state of mistaken justified defence, the actor is aware of the fact that his conduct is a breach of the imperative arising from the criminal prohibition, and of the fact that his conduct constitutes a breach of that imperative, infringes the protected interest, and is normally prohibited. For example, an actor who mistakenly believes that his life is threatened by an animal and as a result harms another person is an actor who is actually aware that he is harming a legally protected value. This situation is completely different from a situation in which the actor is unaware that his conduct infringes a protected interest, such as an actor who shoots and kills a person in the dark, thinking he is shooting at a dog.80 Mistaken justified defence is not a typical case of mistake of fact.81

The conclusion is that a mistaken justified defence is not a mistake of fact, and it does not negate mens rea as a necessary condition for the realization of the antisocial character of the offence. In terms of the structure of the offence, mistaken justified defence can be contemplated only when the actor realizes the mes rea of the offence.

V. The Relationship between Mistake of Law and Mistaken Justified Defence – The Requirement of Reasonableness

Mistake of law describes situations in which the actor is aware of the general nature of his conduct, but mistakenly believes that his conduct is not prohibited, as for example, where he is unaware of the existence of the prohibition, or misunderstands the prohibition. Mistake of law, as recognized by legal systems as a defence, does not negate mens rea. Only the reasonable mistake of law is a defence, and in the case of unreasonable mistake the actor bears responsibility for an offence of mens rea.82

Some legal systems, such as Polish and Italian law view mistaken justified defence as a kind of mistake of law, and other law systems, like Australian and Canadian law, and scholars in other systems83 adopt the view that reasonable mistaken justified defence negate criminal responsibility while in the case of unreasonable mistaken justified defence the actor bear criminal responsibility for mens rea offence. Such approaches are based upon following arguments:
A person who acts in a situation of a mistaken justified defence fulfils the actus reus and the mens rea of the offence. He is aware of the general nature of his actions, and in particular that his conduct infringes protected legal interests. This is why mistaken justified defence does not negate mens rea, neither directly nor indirectly. Mens rea and negligence are two separate, distinct and mutually exclusive forms of the mental element. Therefore, there are only two possibilities in regard to a person acting with mens rea: either he is criminally responsible for a mens rea offence, or he bears no criminal responsibility at all (due to a defence). An alternative, such as responsibility for a negligence offence, does not exist, since there is no negligence when a person acts with mens rea, and such an alternative would be a fiction that is inappropriate to the criminal law. Moreover, a person who acts under conditions of mistaken justified defence believes that his conduct is not prohibited, i.e. it is permitted – a mistake in classifying conduct that is actually prohibited as permitted, and such a mistake is a mistake of law.84 Additionally, the mistakes recognized by the criminal law are mistakes of fact and mistakes of law. A mistaken justified defence does not negate mens rea,85 and therefore it must be an instance of mistake of law.
Furthermore, to take the view that mistaken justified defence negates mens rea would seriously undermine the purpose of the criminal law, where negligence is an exceptional mental element. The number of negligence offences in the criminal law is very small, and negligent attempt is not punishable. In other words, many infringements of protected interests would go unpunished. Fletcher is of the opinion that “It is odd to recognize a complete defense in case of unreasonable mistake simply because there is no intermediate offense of negligent commission.”86 The appropriate protection of legal interests and the proper maintenance of the criminal law require that we view mistaken justified defence as a mistake of law, i.e. a mistake that frees the actor from criminal responsibility only when the mistake is reasonable.87
Indeed, in order to provide adequate protection for social values, and to guarantee the proper functioning of the criminal law, some of those who support viewing mistaken justified defence as a situation that negates criminal responsibility for a mens rea offence suggest that more criminal offences should cover the negligent violation of protected values,88 or that certain justified defences should require the actor to examine the conditions of the defence prior to acting,89 which, in effect, means adopting the solution of mistake of law, or simply that mistaken justified necessity is to be treated in the same manner as mistake of law.90 These suggestions testify to the problematic situation of those who support the mistake-of-fact approach. They contradict the substance of criminal law as a means for treating of the most severe social phenomena, which prevents us form defining most negligent infringements as criminal offences.91
In addition, the rule of mistake of law takes all considerations into account, and gives due regard to the severity of the act and the actor’s culpability.92 When the mistake is reasonable, the actor is not culpable and is not held to be criminally responsible. When the mistake is unreasonable, the actor’s culpability is mitigated. And when the antisocial character of the act and the actor’s culpability are significantly mitigated to the threshold of anti-sociality and culpability of criminal law, the court can exonerate the actor of criminal responsibility.
Leverick93 is of the opinion that article 2 of the European Charter of Human Rights requires that mistaken self-defence must be reasonable in order not to lead to criminal responsibility. If the mistake is not reasonable, the actor bears criminal responsibility for a mens rea offence, although he will be granted some consideration in punishment. Leverick is of the opinion that “in allowing an honest unreasonable mistake to ground an acquittal on the basis of self-defence, English law is contrary to Article 2 of the ECHR. The reason for this claim is that, in allowing the unreasonable mistaken defendant to escape punishment in this way, English law fails to respect the right of life of the person who, through no fault of their own, is mistaken for an attacker.”94
Some scholars take the view that mistaken justified defences are concerned with excused defence, and the criterion is objective. A mistaken justified defence is an excused defence only when the mistake is reasonable.95 Fletcher is of the opinion that if “a mistaken claim of justification functions as an excuse, then one can expect it to meet the standard applied to other excusing conditions – namely, that it actually excuse the actor from blame. As the claim of duress must satisfy normative criteria, so must the claim of mistake as an excuse satisfy normative criteria – namely, the requirement of reasonableness – in order effectively to excuse the wrongful act.”96

In my view, however, a mistaken justified defence is not a case of mistake of law, and it should not be treated as a mistake of law.
It is indeed the case that criminal law recognizes both mistakes of fact and of law, and as stated earlier,97 a mistaken justified defence is not a mistake of fact. Nevertheless, one cannot automatically conclude that mistaken justified defence is a mistake of law. It is possible that a mistaken justified defence should be treated in the same manner as a mistake of fact or a mistake of law, but that only the consequences are the same. It is possible that we are concerned with a special kind of mistake, with an independent identity and unique consequences.98
Moreover, in the case of mistake of law we are concerned with situations in which the actor wrongly believes that his conduct is not forbidden due to a mistake as to the existence of a criminal prohibition or a misunderstanding of the prohibition.99 As opposed to this, in situations of mistaken justified defence, the actor is aware of the existence of the prohibition, as well as of the fact that his conduct falls within its scope, i.e. infringes the legally protected interest, but mistakenly believes that his conduct is justified. Thus, a mistaken justified defence does not fall within the scope of a mistake of law.100
Furthermore, in situations of mistaken justified defence the actor believes that his conduct serves the purpose of the criminal law, that it is the appropriate, desirable response under the circumstances, and that it is justifiably intended to protect an important social interest at the expense of a lesser interest. As opposed to this, in the case of a mistake of law, the actor knows that he is infringing a protected legal interest, he is not acting to protect some greater value (i.e. he does not imagine that his conduct is justified), but merely believes that there is no criminal prohibition that proscribes his behaviour, or thinks that it does not fall within the scope of the prohibition.101
Moreover, viewing a mistaken justified defence as a mistake of law contradicts the accepted rule of criminal law that the opposite of a mistake of law is a hypothetical offence that is not punishable. According to this rule, and viewing a mistaken justified defence as a mistake of law, it follows that a situation in which the objective elements of the defence are realized when the actor is unaware of it (the Dadson case) falls within the scope of a non-punishable hypothetical offence, which is an unacceptable result even for those who support the mistake-of-law solution. This leads to the conclusion that mistaken justified defence does not fall within the scope of mistake of law.102

The conclusion is that mistaken justified defence does not fall within the ambit of either mistake of fact or mistake of law. It is a separate and distinct mistake.

VI. The Implications of Mistaken Justified Defence are Identical to the Implications of Mistake of Fact103

In the case of a mistaken justified defence, the actor mistakenly believes that his actions are performed under conditions of a defence, such that if his beliefs actually reflected reality he would enjoy the defence. The actor’s mistake is, therefore, a mistake in regard to the existence of objective (descriptive or normative) elements of the defence. In this sense, the structure of mistaken justified defence bears similarity to that of mistake of fact.104 Mistaken justified defence also shares some consequences in common with mistake of law in that the actor mistakenly thinks that the normative imperative arising from the prohibition – e.g. do not damage property, or do not harm a person – retreats due to the justified defence and, therefore, the act is not proscribed. In other words, the actor – who is fully aware of the nature of his conduct – thinks that the prohibition does not apply in the concrete case, and his conduct is not forbidden.105 In addition, the culpability of a person who acts in a situation of mistaken justified defence is mitigated or non-existent – a situation similar to mistake of law that mitigates or negates culpability. It would therefore appear that mistaken justified defence is a separate and distinct type of mistake that displays a structural similarity to mistake of fact, and a similarity to mistake of law in its results.106

As stated, in a situation of mistaken justified defence the actor mistakenly believes that his conduct is justified, serves the purpose of the criminal law, and is the correct and appropriate behaviour under the circumstances. The act does not express the severe antisocial attitude that marks criminal conduct with mens rea under normal conditions.107 Such an actor does not knowingly choose to unjustifiably infringe a legally protected interest by committing a criminal offence. The source of his antisocial, unlawful behaviour is to be found in not adequately examining the facts of the situation in which he acts, i.e. negligence.108 Therefore, when the mistake as to the existence of the defence is unreasonable, the antisocial character of the act is minimal, and the culpability is mitigated.109
Moreover, in terms of the criminal law, an actor who acts under conditions of an unreasonable mistaken justified defence is a citizen who intends to protect the legal order. Such a person is not a typical example of the criminal who acts under normal situations, in the absence of any justified defence. While it is true that the actor has mens rea in relation to the actus reus of the offence, his belief that he is acting in a situation of justified defence negates his perception of the antisocial character of his conduct. As a result, the antisocial character of his conduct and his culpability are substantially less than they would be under normal situations.110
In addition, the actus reus is a central element of an offence as an evaluating norm, and it comprises elements that constitute rules of conduct.111 Justified defences are the opposite of the actus reus of the offence, and also constitute conduct of rules. In this sense, there is a relationship between the actus reus of the offence and the justified defences. It would therefore appear that the culpability of an actor who acts under conditions of unreasonable mistaken justified defence is very limited, and quite close to that of negligence.112 In other words, where there is unreasonable mistaken justified defence, the actor will be held criminally liable for negligent committing of the offence, where such an offence exists. This result does not infringe the purpose of the criminal law. Indeed, in treating the case of a mistaken justified defence as a situation that is identical in its consequences to a mistake of fact, the actor is not held liable for a mens rea offence. Therefore, where the mistake is unreasonable – i.e. where the actor is negligent – the infringement of the protected values tends not to be punishable, inasmuch as negligence is an exception in criminal law, and attempted negligence is never punishable. This situation is required by the nature of the criminal law. When the antisocial character of an act and the actor’s culpability are small and equal to that of regular negligence, these two phenomena should – by reason of their equivalent culpability – be treated identically. Thus, for example, where the anti-sociality and culpability of negligently damaging property are minimal (and thus not punishable), and the anti-sociality of damaging property in a situation of unreasonable mistaken justified defence is also minimal, and the actor’s culpability is identical to that of traditional negligent damage to property, it should be the case that damage to property with mens rea in a situation of mistaken justified defence will not be punishable. A different approach, under which the actor would be granted mitigated punishment, would not be consistent with the nature of criminal law in treating only of the most severe antisocial phenomena.113 Convicting a person who acts under conditions of unreasonable mistaken justified defence of a mens rea offence would be unjust, exaggerated, and disproportionate. One cannot, in principle, equate a person who wants to perform a desirable and even heroic act intended to protect the legal order – an actor in a situation of mistaken justified defence – to a person who commits a criminal offence under normal circumstances.

As earlier stated, Leverick114 is of the opinion that the European Convention of Human Rights requires that unreasonable mistaken justified defence carry with it criminal responsibility for a mens rea offence, and that in the case of homicide, responsibility for manslaughter rather than for murder should arise.
However, I would disagree with Leverick’s analysis of the case law of the European Court for Human Rights. The Court did hold that “the reasonableness of the use of force has to be decided on the basis of the facts which the user of force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be questioned whether it was reasonable to use the force in question.”115 The Court also considered the actor’s culpability, i.e. was he or was he not culpable. The European Court of Human Rights does not distinguish between a real justifiable defence and a reasonable mistaken justified defence, and it focuses only upon the result, i.e. upon the imputing of criminal responsibility to the actor. As noted above,116 when the law does not distinguish between justified defences and excused defences, and focuses only upon imputing criminal responsibility to the actor, the real defence and the reasonable mistaken defence can be viewed together. In this regard, it is appropriate to require reasonableness in order for the actor to be granted an absolute defence even from responsibility for negligence. In the above decision, the Court does not consider the character of the offence that will be imputed to the actor in the case of an unreasonable mistaken justified defence, as it is clear that in such a case the actor has no defence. The Court does not say that an actor in a case of unreasonable mistaken justified defence will not be held criminally liable for negligence. Leverick is of the opinion that when the source of mistaken justified defence is gross negligence – i.e., where the actor’s mistake is severe – the actor will bear responsibility for manslaughter, for which gross negligence is an adequate mental element. This is an accepted and perhaps appropriate conclusion.117 However, when the unreasonable mistaken defence does not reach the degree of gross negligence, the actor will not bear any criminal responsibility, as there is no such offence in English law. Indeed, this conclusion in such cases is inappropriate, and does not provide adequate protection of life. But this “flaw” derives from English law’s not defining negligent homicide as a criminal offence. English law, like all Continental legal systems, should define negligent homicide as a criminal offence. English law should correct the existing “flaw” rather than adopt the inappropriate view that an act done under the conditions of unreasonable mistaken justified defence constitute a mens rea offence.118

The conclusion is that the implications of mistaken justified defence are identical to that of mistake of fact, and the actor does not bear criminal responsibility for a mens rea offence. When the mistake is unreasonable, the actor bears responsibility for a negligence offence, when such an offence exists.

VII. Conclusion

Mistaken justified defence represents a mistake in regard to the existence of a legally recognized justified defence, such that if the actor’s belief reflects the reality, his conduct would fall within the scope of a real justified defence.

Reasonable mistaken justified defence, such as mistaken justified self-defence or necessity, is a situation that infringes a legal protected interest and causes harm for nothing, i.e. does not protect any legal interest. Therefore, in the absence of any unlawful real attack in self-defence, and of real danger to a more important interest in justified necessity, the principles based on real justified self-defence (protection of autonomy and legal order) and justified necessity (principles of solidarity and autonomy) cannot treat these situations as justified defences. Mistaken justified defence belongs to the element of culpability, and not to the element of wrongfulness of the offence. A reasonable mistaken justified defence is not a justified defence.

Modern law views mens rea as composed of a cognitive element (awareness), and a wilful element, without any element of “evil”. Modern criminal law does not accept the ancient theory of dolus malus which treats mistaken justified defence as negating the mens rea. Mistaken justified defence does not negate mens rea as an antisocial element of the offence.

The absence of a justified defence is not part of the actus reus of the offence, the theory of the negative elements of the offence is not to accept or adopt, and therefore a mistaken justified defence is not a mistake of fact. Moreover, there is a significant difference (both social and legal) between an act that does not fulfil the actus reus and an act that fulfils the actus reus but committed under the conditions of justified defence. Fulfilment of the actus reus denotes harm to the legally protected value, and there is a presumption that an act fulfils the actus reus of an offence is not performed under justifying conditions, and that performing the act under justifying conditions is an exception. If an act is per se classified as a criminal offence, this expresses a message to society that this act is prohibited and must be avoided. Thus, the actus reus is the core of the prohibition as an imperative norm, and the role of the criminal law in protecting social interests is primarily expressed by the actus reus. A mistaken justified defence is not a mistake of fact, and it does not negate mens rea as a necessary condition for the realization of the antisocial character of the offence. In terms of the structure of the offence, mistaken justified defence can be contemplated only when the actor realizes the mes rea of the offence.

In the case of a mistaken justified defence, the actor mistakenly believes that his conduct is justified, is in line with the purpose of criminal law, and is the correct and appropriate behaviour under the circumstances. The act does not express the severe antisocial attitude that marks criminal conduct with mens rea under normal conditions. Such an actor does not knowingly choose to unjustifiably infringe a legally protected interest by committing a criminal offence. The source of his antisocial, unlawful behaviour is to be found in not adequately examining the facts of the situation in which he acts, i.e. negligence. Therefore, when the mistake as to the existence of the defence is unreasonable, the antisocial character of the act is minimal, and the culpability is mitigated. In addition, justified defences are the opposite of the actus reus of the offence, and also constitute conduct of rules. In this sense, there is a similarity between the actus reus of the offence and the justified defences. It would therefore appear that the culpability of an actor who acts under conditions of unreasonable mistaken justified defence is very limited, and quite close to that of negligence. Where there is unreasonable mistaken justified defence, the actor will be held criminally liable for negligent committing of the offence, where such an offence exists. Mistaken justified defence is a separate and distinct mistake, although its consequences are identical to those of mistake of fact. In the case of unreasonable justified defence the actor bears criminal responsibility for a negligence offence if such an offence exists in criminal code; the implications of mistaken justified defence are identical to that of mistake of fact negating the mens rea.

Endnotes

* Assistant Professor, Faculty of Law, University of Haifa. I would like to thank Prof. Mota Kremnitzer for his fruitful remarks; special thanks to Eman Dabbah. This research was made possible due to a grant from the Halbert Exchange Program and a grant from The Alexander von Humboldt Foundation.

1 See below text near notes 11-27.

2 See below text near notes 28-39.

3 See C. Roxin, Strafrecht Allgemeiner Teil, Band I, 2. Aufl. (München 1994) 512ff; H-H. Jescheck & Th. Weigend, Lehrbuch des Strafrechts: Allgemeiner Teil, 5. Aufl. (Berlin 1996) 466; G. Stratenwerth, “The Problem of Mistake in Self-Defense”, in A. Eser & G.P. Fletcher (eds.) Justification and Excuse II (Freiburg 1988) 1055, 1065f; Arth. Kaufmann, ‘Die Irrtumsregelung im Strafgesetzbuch-Entwurf 1962,”‘ZStW 76 (1964), 543, 563; B-S. Cho, ‘Der Irrtum als Unrechts- und/oder Schuldausschluß’, in A. Eser & H. Nishihara (Hrsg.), Rechtfertigung und Entschuldigung IV (Freiburg 1995) 423, 427; A. Zoll, ‘Die Bedeutung des Irrtums für die strafrechtliche Verantwortlichkeit im neuen polnischen Strafgesetzbuch’ in Festschrift für Hirsch (Berlin 1999) 419, 425; A. Ashworth, ‘Excusable Mistake of Law’, 1974 Crim. L. Rev. 652, 654ff; D. Stuart, Canadian Criminal Law, 4th ed. (Toronto 2001) 459f; BGHSt 22, 223, 225; BGHSt 3, 271, 274.

4 See A. v United Kingdom, 1998 Crim. L. Rev. 892; A. Ashworth, Principles of Criminal Law, 3rd ed. (Oxford 1999) 151f.

5 See G. Warda, ‘Vorsatz und Schuld bei ungewisser Tätervorstellung über das Vorliegen strafbarkeitsausschließender, insbesonderer rechtfertigender Tatumstände’, in Festschrift für Lange (Berlin 1976) 119.

6 Also see Warda, supra note 5, 126ff; G. Warda, ‘Schuld und Strafe beim Handeln mit bedingtem Unrechtsbewußtsein’, in Festschrift für Welzel (Berlin 1974) 499ff; J. Seier, ‘Strafrecht: Die unnötige Rettungsfahrt’, JuS 1986, 220ff.

7 See U.S. v Barker, 546 F.2d 940, 947 (D.C. Cir. 1976), according to which social interests, such as considerations of utility, argue against recognizing mistake of law as a defence. Also see Ashworth, supra note 3, 652; A.T.H. Smith, ‘Error and Mistake of Law in Anglo-American Criminal Law’, in A. Eser & G.P. Fletcher (eds.), Justification and Excuse II (Freiburg 1988) 1075, 1107ff.

8 On this theory, see text at notes 73-74.

9 And see K. Tiedemann, ‘Der Irrtum über Rechtfertigungs- und Entschuldigungsgründe’, in A. Eser & G.P. Fletcher (Hrsg.), Rechtfertigung und Entschuldigung II (Freiburg 1988) 1003, 1005-1011; S.M. Puig, ‘Der Irrtum als Unrechts- und/oder Schuldausschließungsgrund im spanischen Strafrecht’, in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III (Freiburg 1991) 291, 295, 297.

10 See, e.g., R. Christopher, ‘Self-Defense and Defense of Others’, (1998) 27 Philosophy and Public Affairs 123; H. Stewart, ‘The Role of reasonableness in Self-Defence’, XVI (2003) Canadian J. of L. and Jurisp. 317.

11 Entwurf eines Strafgesetzbuches (StGB) E 1960 mit Begründung – Bundestagsvorlage (Bonn 1960) 14, 126f. Under sec. 20 of the amendment of 1962, a mistaken justified defence and a mistaken excused defence are treated in the same way as a mistake of fact, see Gegenüberstellung des Entwurfs eines Strafgesetzbuches (E 1962) (Bonn 1962), 20.

12 See Entwurf eines Strafgesetzbuches (StGB) E 1960 mit Begründung – Bundestagsvorlage (Bonn 1960) 16, 151f; and sec. 39(2) of the 1962 draft, Gegenüberstellung des Entwurfs eines Strafgesetzbuches (E 1962) (Bonn 1962), 25.

13 See Kaufmann, supra note 3, 543ff; C. Roxin, ‘Die Behandlung des Irrtums im Entwurf 1962’, ZStW 76 (1964), 582ff; H. Welzel, ‘Diskussionsbemerkung zum Thema `Die Irrtumsregelung im Emtwurf`’, ZStW 76 (1964), 619ff.

14 See Roxin, supra note 3, 503ff.

15 And see I. Puppe, ‘Zur Struktur der Rechtfertigung’, in Festschrift für Stree/Wessels (Berlin 1993) 183, 193; H-J. Hirsch, in Leipziger Kommentar – Großkommentar, 11. Auflage (Berlin 1994) sec. 35 para 73. The same approach was adopted in regard to mistaken excused necessity, see BGHSt 5, 371, 375; BGHSt 18, 311f.

16 See I-S Kim, ‘Rechtfertigung und Entschuldigung bei Befreiuung aus besonderen Notlagen (Notwehr, Notstand, Pflichtenkollision)’, in A. Eser & H. Nishihara (Hrsg.), Rechtfertigung und Entschuldigung IV (Freiburg 1995) 113, 119; Cho, supra note 3, 427f.

17 N. Nishida, ‘Irrtum als Unrechts- und/oder Schuldausschluß’, in A. Eser & H. Nishihara (Hrsg.), Rechtfertigung und Entschuldigung IV (Freiburg 1995) 431, 434ff; A. Onagi, Die Notstandsregelung im japanischen und deutschen Strafrecht im Vergleich (Baden-Baden, 1993) 72ff, 80ff; S. Dando, The Criminal Law of Japan: The General Part (Littleton 1997) 120ff, 128.

18 E. Foregger/E. Fabrizy, Strafgesetzbuch Kurzkommentar, 7. Auflage (Wien 1999) sec. 8 para 1; O. Leukauf/H. Steininger, Kommentar zum Strafgesetzbuch, 2. Auflage (Eisenstadt, 1979) sec. 8 paras 1ff, sec. 10 para 25; O. Triffterer, Österreichisches Strafrecht – Allgemeiner Teil, 2. Auflage (Wien, 1994) 285f, 429ff. It should be noted that sec. 7 of the Austrian criminal code defines mens rea, and refers to mistake of fact by exclusion, i.e. as the opposite of mens rea. Austrian law views mistaken justified defence as a special, independent form of mistake that is treated identically to mistake of fact, see Triffterer, ibid, 201.

19 See G. Stratenwerth, Schweizerisches Strafrecht – Allgemeiner Teil, 2. Auflage (Bern 1996) 292f.

20 J. Dias, ‘Der Irrtum als Schuldausschließungsgrund im portugiesischen Strafrecht’, in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III (Freiburg 1991) 202ff; M.C. Rosa, ‘Die Funktion der Abgrenzung von Unrecht und Schuld im Strafrechtssystem’, in B. Schünemann & J. de F. Dias (Hrsg.), Bausteine des europäischen Strafrechts (Köln 1995) 183, 188ff; M. Valdagua, ‘Notwehr und Putativnotwehr’, in B. Schünemann J. de F. Dias (Hrsg.), Bausteine des europäischen Strafrechts (Köln 1995) 229ff.

21 See N. Jareborg, Essays in Criminal Law (Uppsala 1988) 18. Under Swedish law, a justified defence is an element of the actus reus of the offence, and therefore a mistaken justified defence is a mistake of fact.

22 See sec. 34R of the Penal Code, 30 Isr. L. Rev 5, 26 (1996).

23 On the theory of dolus malus, see W.G. Tischler, Verbotsirrtum und Irrtum über normative Tatbestandsmerkmale (Berlin 1984) 22ff; W. Perron, Rechtfertigung und Entschuldigung im deutschen und spanischen Strafrecht (Baden-Baden 1988) 184ff. See also G. Arzt, ‘The problem of mistake of law’, in A. Eser & G.P. Fletcher, Justification and Excuse II (Freiburg 1988) 1025, 1032ff.

24 See Puig, supra note 9, 291ff; Perron, supra note 23, 184ff, 214f; M. Conde, ‘Die Putativnotwehr. Ein Grenzfall zwischen Rechtfertigung und Entschuldigung’, in B. Schünemenn & J. De F. Dias (Hrsg.), Bausteine des europäischen Strafrechts (Köln 1995) 213ff.

25 See J.M. Burchell & J.R.L. Milton, Principles of criminal law, 1st ed. (Cape Town 1991) 271ff, 280ff, 311ff, 291f; M.E. Leistner, Der Irrtum über das Verbotensein der Tat im südafrikanischen Strafrecht (Baden-Baden 1985) 63ff, 97.

26 See K. Buchala, ‘Das Schuldprinzip und seine Funktion im polnischen Strafrecht’, ZStW 106 (1994) 766, 776; Zoll, supra note 3, 426; R. Lewandowski, Die Geschichte der polnischen Lehre vom Irrtum im Strafrecht (Berlin, 2001).

27 See A.M. Stile, ‘Der Irrtum als Unrechts- und/oder Schuldausschluß im italienischen Strafrecht’, in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III (Freiburg 1991) 311, 330ff; G. Marinucci, ‘Rechtfertigung und Entschuldigung im italienischen Strafrecht’, in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III (Freiburg 1991) 55, 60, 63, 67; V. Militello, ‘Entschuldigungsgründe in der Neukodifikation des Strafrechts’, ZStW 107 (1995) 969, 999.

28 See Zecevic v. D.D.P. (1987) 71 A.L.R. 641; S. Yeo, ‘The Element of Belief in Self-Defence’, 12 Sydney L. Rev. (1989) 132.

29 K. Roach, Criminal Law, 2nd ed. (Toronto 2000) 277f, 284ff; Stuart, supra note 3, 457ff.

30 J.C. Smith Justification and Excuse in Criminal Law (London, 1989) 103ff; E. Colvin ‘Exculpatory Defences in Criminal Law’ 10 Ox. J. of L. Stud. (1990) 398; A. Simester, ‘Mistake and Defences’, 12 Ox. J. of L. Stud. (1992) 295ff; M. Giles, ‘Self-Defence and Mistake: A Way Forward’, 53 Modern L. Rev. (1990) 187. This approach was based upon R. v. Tolson, (1889) 23 QBD 168.

31 [1987] 3 All E.R. 411.

32 Ibid, at 425 and 431.

33 In the Beckford case and the Williams case the court considered D.P.P. v Morgan (1975) 2 All E.R. 347, in which the court adopted the view that a mistake of fact negates mens rea, regardless of whether or not the mistake was reasonable. One might conclude that English case law holds that mistaken self-defence only negates mens rea, and reasonable mistaken self-defence is not identical to real self-defence.

34 However, an unreasonable mistake can serve to show that the mistake may not have been an honest one, in other words, that it was not a mistake at all. Unreasonableness is, therefore, an evidentiary tool for examining the honesty of a mistake, see R. v. Williams (1987) 3 All E.R. 411.

35 See R. Graham (1982) 1 All E.R. 801, according to which the test is “having regard to what he reasonably believed another to have said or done, he had good cause to fear the other would kill him if he did not act”; and R. v Howe (1987) A.C. 458ff; the case law applied this approach both to duress and to necessity, see v. Conway, (1988) 3 All E.R. 1025, 1030; R. v. Martin, (1989) 1 All E.R. 652ff.

36 See C.M.V. Clarkson & H.M. Keating, Criminal Law 4th ed. (London 1998) 268ff, 286.

37 Ashworth, supra note 3, 240ff; A.P Simester & G.R. Sullivan, Criminal Law: Theory and Doctrine, 2nd ed. (Oxford 2003) 550ff; J.C. Smith & B. Hogan, Criminal Law, 9th ed. (London 1999) 238ff; Colvin, supra note 30, 399.

38 It should be noted that some US states adopt the position that a mistaken justifies defence is a defence only when the mistake is reasonable; see G. Fletcher, Rethinking Criminal Law (Littleton 1978) 690 at note 9. On the MPC and the law of the state of New York, see G. Fletcher, A Crime of Self-Defense (Chicago 1988) 39ff.

39 See Sh. Byrd, ‘Wrongdoing and Attribution: Implications beyond the Justification-Excuse Distinction’, 33 Wayne L. Rev. (1987) 1289, 1312ff, and 1325ff.

40 Supra notes 23, 31 and 38.

41 G. Fletcher, A Crime of Self-Defense (Chicago 1988) 39ff; see also A. Ripstein, Equality, Responsibility, and the Law (Cambridge, 1999) 6ff.

42 J. Dressler ‘New Thoughts about the Concept of Justification in the Criminal Law: A Critique of Fletcher`s Thinking and Rethinking’ 32 UCLA L. Rev. (1984) 61, 93; and see Smith, supra note 30, 21ff; Colvin, supra note 30, 390f; K. Greenawalt ‘The Perplexing of Justification and Excuse’ Justification and Excuse I (A. Eser & G.P. Fletcher eds., Freiburg, 1987) 263, 300ff; Stewart, supra note 10; see also Ripstein, ibid, 6ff, 188ff.

43 On the case law, see Conde, supra note 23, 215ff.

44 G. Fletcher, Rethinking Criminal Law (Littleton 1978) 767ff.

45 On these theories, see P. Robinson, ‘Competing Theories of Justification: Deeds v. Reasons,’ in A.P. Simester & A.T.H. Smith, Harm and Culpability (Oxford 1996) 45, 46f.

46 See Robinson, ibid, 51.

47 See M. Kremnitzer & K. Ghanayim, ‘Proportionality and the Aggressor’s Culpability in Self-Defense’, 39 Tulsa L. Rev. 2004, 875, pp. 877.

48 See A. Brudner, ‘A Theory of Necessity’, 7 Ox. J. of L. Stud. (1987) 339, 363f; Th. Lenckner, in Schönke/Schröder, Strafgesetzbuch – Kommentar, 25. Aufl. (München 1997) Vorbem sec. 32 para 10a.

49 See Kremnitzer & Ghanayim, supra note 47, pp. 882; M. Kremnitzer & K. Ghanayim, ‘New Humanistic Trends in Israeli Criminal Law’, in Festschrift für Eser (München 2005) 513, pp. 519.

50 And see G. Fletcher, ‘The Right and the Reasonable’, in A. Eser & G.P. Fletcher (eds.), Justification and Excuse I (Freiburg 1987) 67, 107ff; Ashworth, supra note 4, 240.

51 And see Ashworth, supra note 4, 240; P.D.W. Heberling, ‘Justification: The impact of the Model Penal Code on statutory reform’, 75 Columb. L. Rev. (1975) 914, 918ff; Fletcher, supra note 50, 104ff; Fletcher, supra note 44, 762ff; G.P. Fletcher, ‘Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?’, 26 UCLA L. Rev. (1979) 1355, 1361ff; P. Robinson, ‘Rules of Conduct and Principles of Adjudication’, 57 Uni. of Chi. L. Rev. (1990) 729, 749ff; W. Hassemer, ‘Rechtfertigung und Entschuldigung im Strafrecht – Thesen und Kommentare’, in A. Eser & G.P. Fletcher (Hrsg.), Rechtfertigung und Entschuldigung I (Freiburg 1987) 175, 210ff; M.D. Bayles, “Reconceptualizing Necessity and Duress”, in Corrado (ed.), Justification and Excuse in Criminal Law (New York 1994) 429, 454ff.

52 Fletcher, supra note 41, 27; Ashworth, supra note 4, 240f; J.C. Smith, ‘Using Force in Self Defence and the Prevention of Crime’, 1994 C.L.P. 101, 107.

53 See supra note 42.

54 Fletcher, supra note 41, 40.

55 Ibid.

56 See supra note 43.

57 And see Fletcher, supra note 41, 30; Fletcher, supra note 44, 856.

58 G.P. Fletcher, ‘Proportionality and the Psychotic Aggressor: A vignette in comparative criminal theory’, 8 Isr. L. Rev. (1973) 367, 371; Fletcher, supra note 50, 76ff.

59 Fletcher, supra note 44, 763ff.

60 Fletcher, ibid; G.P. Fletcher, ‘The Psychotic Aggressor – A Generation Later’, 29 Isr. L. Rev. (1993), 227; Kremnitzer & Ghanayim, supra note 47; M. Kremnitzer, ‘Proportionality and the Psychotic Aggressor: Another View’, 18 Isr. L. Rev. (1983) 178.

61 See Rosa, supra note 20, 216ff.

62 Fletcher, supra note 50, 105f, 108f; A. Eser, ‘Justification and Excuse: A Key Issue in the Concept of Crime’, in A. Eser & G.P. Fletcher (eds.), Justification and Excuse I (Freiburg 1987) 17, 32; Fletcher, supra note 60, 237, 243ff.

63 See K. Binding, Die Normen und ihre Übertretung, Band 2 (Leipzig 1877) 940ff; and E. Schmidhäuser, “Der Verbotsirrtum und das Strafgesetz (§16 I Satz 1 und § 17 StGB)”, JZ 1979, 361ff. This approach was adopted in sec. 13 of the draft proposal of the German Criminal Code of 1922 (introduced by Minister of Justice Gustav Radbruch). On this bill, see H. Welzel, ‘Die Regelung von Vorsatz und Irrtum im Strafrecht als legislatorisches Problem’, ZStW 67 (1955), 196, 198. The theory of dolus malus was also consistent with the Nazi theory of criminal offences, which took the view that the primary element of the offence is the mental element, and the criminal offence is a breach of the norm in the sense of disrespect for the law that reflects societal opinion, see Welzel, ibid, 205ff. On modifications of the theory of dolus malus, see E. Schmidhäuser, Strafrecht Allgemeiner Teil, Lehrbuch (Hamburg 1970) 322ff. The theory of dolus malus is accepted, to some degree, in Portuguese law, see Dias, supra note 20, 201ff; and in Spanish case law and the minority view in the legal literature, see Puig, supra note 9, 291ff; Perron, supra note 23, 185ff; in South African law, see Leistner, supra note 25, 28, 71ff; in Scottish law, see Drury v HM Advocate, 2002 SLT 1013. On the theory of dolus malus, also see Fletcher, supra note 44, 742ff; Tischler, supra note 23, 22f; M. Gao, ‘Rechtfertigung und Entschuldigung im Fall des Irrtums’, in A. Eser & H. Nishihara (Hrsg.), Rechtfertigung und Entschuldigung IV (Freiburg 1995) 379, 388.

64 To this day, English law does not recognize reasonable mistake of law as a defence in criminal law.

65 Drury v HM Advocate, 2002 SLT 1013, 1016.

66 Such as sec. 34R of the Israeli criminal Code.

67 See E. Schmidhäuser, ‘Der Verbotsirrtum und das Strafgesetz (§16 I Satz 1 und § 17 StGB)’, JZ 1979, 361, 365ff. See also Puig, supra note 9, 299 on Spanish law.

68 M.R. Gardner, ‘The Mens Rea Enigma: Observations on the Role of Motive in Criminal Law Past and Present’, 1993 Utah L. Rev. 635, 697; and see G. Binder, ‘The Rhetoric of Motive and Intent’, 6 Buffalo Crim. L. Rev. (2002) 1, 7; J. Hruschka, ‘Wieso ist die “eingeschränkte Schuldlehre” eingeschränkt?’, in Festschrift für Roxin (Berlin 2001) 441, 442ff.

69 See BGHSt 2, 194, 204ff.

70 See also Ashworth, supra note 4, 244.

71 See BVefGE 41, 121ff., according to which there is a clear distinction between mistake of fact and mistake of law, and the different legal treatment of the two mistakes does not infringe the constitutional principle of equality, and see W. Kramer & M. Trittel, ‘Zur Bindungswirkung der Entscheidung des Bundesverfassungsgerichts über die Verfassungsmäßigkeit des § 17 StGB’, JZ 1980, 393ff; G. Arzt, ‘Zum Verbotsirrtum beim Fahrlässigkeitsdelikt’, ZStW 91 (1979), 857; R. Maurach & H. Zipf, Strafrecht Allgemeiner Teil, Teilband 1, 8. Aufl. (Heidelberg 1992) 528; G. Stratenwerth, Strafrecht Allgemeiner Teil, 4. Aufl. (Köln 2000) 124; V. Krey, ‘Gesetzestreue und Strafrecht’, ZStW 101 (1989) 838, 868; Gao, supra note 63, 390; on the majority view in Spanish law, see Puig, supra note 9, 303; on US law, see Model Penal Code and Commentaries (1985), Part I, Sec. 2.04, 268ff, 277ff; J. Dressler, Understanding Criminal Law, 2nd ed. (New York 1995) 147ff; on Canadian law, see Roach, supra note 29, 72ff.

72 See infra, IV.

73 See Jareborg, supra note 21, 18.

74 On the theory see Arth. Kaufmann, ‘Tatbestand, Rechtfertigung und Irrtum’, JZ 1956, 353ff, 393ff; B. Schünemann, ‘Die deutschsprachige Strafrechtswissenschaft nach der Strafrechtsreform im Spiegel des Leipzigers Kommentars und des Wiener Kommentars’, GA 1985, 341, 347ff; E.G. Ordeig, ‘Rechtfertigung und Entschuldigung bei Befreiung aus besonderen Notlagen (Notwehr, Notstand, Pflichtenkollision) im spanischen Strafrecht’, in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III (Freiburg 1991) 71, 76; and see U. Kindhäuser, Gefährdung als Straftat (Frankfurt 1989) 111; Byrd, supra note 39, 1312f, 1325ff; Smith, supra note 52, 104.

75 See Welzel, supra note 63, 210, who discusses the example of killing the fly; Tiedemann, supra note 9, 1008; G.P. Fletcher, ‘The Nature of Justification’, in S. Shute, J. Gardner & J. Horder (eds.), Action and Value in Crriminal Law (Oxford 1993) 175, 177ff; Fletcher, supra note 44, 561ff; Fletcher, supra note 50, 111.

76 This is the case e.g. in Israeli law.

77 See G.P. Fletcher, ‘The right deed for the wrong reason: A replay to Mr. Robinson’, 23 UCLA L. Rev. (1975) 293, 312.

78 See Jescheck & Weigend, supra note 3, 236ff, 250f, 323f; Naka, ‘Die Appellfunktion des Tatbestandsvorsatzes’, JZ 1961, 210f; A. Eser, ‘Verhaltensregeln und Behandlungsnorm: Bedenkliches zur Rolle des Normadressaten im Strafrecht’, in Festschrift für Lenckner (München 1998) 25, 44; and see M. Dan-Cohen, ‘Decision Rules and Conduct Rules: On Accoustic Separation in Criminal Law’, 97 Harv. L. Rev. (1984) 625ff.

79 And see Arm. Kaufmann, ‘Tatbestandseinschränkung und Rechtfertigung’, JZ 1955, 37, 38; Jescheck & Weigend, supra note 3, 463; Simester, supra note 30, 301.

80 See Jescheck & Weigend, supra note 3, 463, 465; Maurach & Zipf, supra note 71, 531; G. Spendel, in Leipziger Kommentar – Großkommentar, 11. Aufl. (Berlin 1994) $32 para 342; Simester, supra note 30, 307; Ashworth, supra note 4, 241.

81 E. Dreher, ‘Der Irrtum über Rechtfertigungsgründe’, in Festschrift für Heinitz (Berlin 1972) 207, 217ff; Hirsch, supra note 15, Vor sec. 32 para 8; Spendel, ibid, sec. 32 para 342; H. Zielinski, Handlungs- und Erfolgsunrecht im Unrechtsbegriff (Berlin 1973) 225ff; Simester, supra note 30, 307; Bayles, supra note 51, 456; Ashworth, supra note 4, 241.

82 See sec. 17 of the German criminal code, and sec 34S of Israeli criminal code.

83 Polish law (sec. 29), see Buchala, supra note 26, 766; Zoll, supra note 3, 42; Italian law (sec. 59 (3) of the law and of the draft of 1992), see Stile, supra note 27, 330ff; Marinucci, supra note 27, 60, 63, 67; Militello, supra note 27, 999.

84 See T. Fukuda, ‘Das Problem des Irrtums über Rechtfertigungsgründe’, JZ 1958, 143, 146ff; Heitzer, ‘Ist der putative Rechtfertigungsgrund als Verbotsirrtum zu behandeln?’, NJW 1953, 210f; Arm. Kaufmann, supra note 79, 40.

85 See the conclusion of Part IV.

86 Fletcher, supra note 44, 689.

87 See F. Leverick, ‘Mistake in Self-Defence after Drury’, (2002) Juridical Review 35, 42ff.

88 This suggestion was raised in Arth. Kaufmann, ‘Zum Stand der Lehre vom personalen Unrecht’, in Festschrift für Welzel (Berlin 1974) 393, 394; Kaufmann, supra note 3, 575; Dreher, supra note 81, 227ff.

89 On certain justified defences, see Jescheck & Weigend, supra note 3, 466ff.

90 See Art. 39 (2) of the German Criminal Code Bill of 1962, Gegenüberstellung des Entwurfs eines Strafgesetzbuches (E 1962) (Bonn 1962) 25, and see text to supra note 12.

91 See Fukuda, supra note 84, 147ff; H-J. Hirsch, ‘Der Streit um Handlungs- und Unrechtslehre, insbesondere im Spiegel der Zeitschrift für die gesamte Strafrechtswissenschaft II’, ZStW 94 (1982), 239, 260; Welzel, supra note 63, 216f; Welzel, supra note 13, 619.

92 Welzel, supra note 63, 221; Onagi, supra note 17, 79; Conde, supra note 23, 213ff; Fletcher, supra note 41, 55.
55ff.

93 F. Leverick, ‘Is English Self-Defence Law Incompatible with Article 2 of the ECHR?’, 2002 Crim. L. Rev. 347.

94 Leverick, ibid, 361; see Ashworth, supra note 4, 149; A. Ashworth, “Commentary on Human Rights”, 1998 Crim. L. Rev. 824.

95 P. Robinson, ‘A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability’, 23 UCLA L. Rev. (1975) 266, 283ff.

96 Fletcher, supra note 44, 696; and see Fletcher, supra note 60, 240; Ashworth, supra note 4, 240; Yeo, supra note 28, 141; R. v Graham, [1982] 1 All E.R. 804.

97 See supra IV.

98 And see Dreher, supra note 81, 223ff.

99 Thornstedt, ‘Der Rechtsirrtum im schwedischen Strafrecht’, in Festschrift für Jescheck (Berlin 1985) 503, 508ff; Dreher, supra note 81, 212f; Stratenwerth, supra note 3, 1071.

100 Roxin, supra note 3, 507; BGHSt 3, 105, 107; Dreher, supra note 81, 212f; Stratenwerth, supra note 3, 1071; Puig, supra note 9, 298.

101 See Roxin, supra note 3, 507; Stratenwerth, supra note 71, 209ff.

102 Dreher, supra note 81, 214ff; Puppe, supra note 15, 196ff; Engisch, ‘Der umgekehrte Irrtum und das Umkehrprinzip’, in Festschrift für Heinitz (Berlin 1972) 185, 192ff.

103 The prevailing approach of both German and Austrian law (sec. 8), see Foregger/Fabrizy, supra note 18, sec. 8 para 1; Leukauf & Steininger, supra note 18, sec. 8 paras 1ff, $10 para 25; Triffterer, supra note 18, 429. On Swiss law (sec 19) see Stratenwerth, supra note 19, 292ff. On Japanese law, see Onagi, supra note 17, 72ff, 80ff; Dando, supra note 17, 120ff, 128. On Korean law, see Kim, supra note 16, 119; Cho, supra note 3, 427ff. On Portuguese law, see Dias, supra note 20, 202ff; Rosa, supra note 20, 188ff; Valdagua, supra note 20, 229ff.

104 Jescheck & Weigend, supra note 3, 462; Spendel, supra note 80, sec. 32 para 342; E. Schlüchter, Irrtum über normative Tatbestandsmerkmale im Strafrecht (Tübingen 1983) 172; Zielinski, supra note 81, 269; Stratenwerth, supra note 19, 252.

105 Jescheck & Weigend, supra note 3, 462ff; Spendel, supra note 80, sec. 32 para 342.

106 See Jescheck & Weigend, supra note 3, 462; Dreher, supra note 81, 223ff; G. Jakobs, Strafrecht Allgemeiner Teil, 2. Aufl. (Berlin 1993) 372; and see Hirsch, supra note 91, 263.

107 Also see Jescheck & Weigend, supra note 3, 465; Roxin, supra note 3, 507f; Roxin, supra note 13, 594; W. Frisch, ‘Der Irrtum als Unrechts- und/oder Schuldausschluß im deutschen Strafrecht’, in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III (Freiburg 1991) 217, 268ff.

108 Also see Jescheck & Weigend, supra note 3, 465; Dreher, supra note 81, 224ff; Maurach & Zipf, supra note 71, 531; Schlüchter, supra note 104, 172ff; BGHSt 3, 105, 107.

109 This mitigation of culpability derives from the fact that culpability is an expression of the degree of condemnation and blame appropriate to the actor’s antisocial conduct. When the antisocial character of the conduct is minimal, so is the actor’s culpability.

110 Stratenwerth, supra note 3, 1071.

111 Robinson, supra note 51, 740ff, 756ff; Fletcher, supra note 44, 456f, 491ff; I. Kugler, ‘On the Possibility of a Criminal Defences for Conscientious Objection’, 10 Can. J. of L. and Juris. (1997) 387, 396ff; Eser, supra note 78, 46ff; J. Hruschka, ‘Verhaltensregeln und Zurechnungsregeln’, Rechtstheorie 22 (1991), 449ff.

112 See Jescheck & Weigend, supra note 3, 465; BGHSt 31, 264, 287; Smith, supra note 52, 106.

113 And see Roxin, supra note 13, 585ff, note 16 at p. 594; Roxin, supra note 3, 508ff; Jescheck & Weigend, supra note 3, 464 at note 54; Arth. Kaufmann, ‘Einige Bemerkungen zu Irrtümern über den Irrtum’, in Festschrift für Lackner (Berlin 1987) 185, 193ff.

114 See text belongs to supra note 93-94.

115 McCann et al. v United Kingdom (1996) 21 E.H.R.R. 97, at para 134.

116 See text belongs to supra note 44.

117 Leverick, ‘The Use of Force in Public or Private Defence and Article 2: A Reply to Professor Sir John Smith’, 2002 Crim. L. Rev. 963, 966.

118 Such a result is acceptable to Leverick, and would even be “welcome”, ibid, at p. 966.

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